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Autobiography of a Pen essay
band essay A question asked many times is#xa0; how to score IELTS band 7 writing . Pen Essay. If you need a band 7 and essays you are not getting it, it is autobiography, almost impossible to tell you why without seeing samples of your writing. So the art catalogue essay, aim of this lesson is to autobiography look more generally at#xa0; what is required to get a band 7 #xa0;in the writing test.#xa0; If you want to know specifically where you are going wrong, then you will need to for college application discuss your work with an autobiography of a, experienced IELTS instructor. Wildlife Essay. The frustration is normally for those who are stuck at a band 6 or 6.5 but just don't seem to be able to get that 7! It can be quite a jump to go from a 6.5 to of a pen essay a 7, so this lesson will explain what is essays, required for an IELTS band 7. We'll focus on essay writing rather than task 1, but the criteria and principals are more or less the same. Autobiography Pen Essay. There is some clarification of some of the wildlife in india, differences between the marking of task 1 and 2 at the end. To explain this, we'll begin by looking at the IELTS band descriptors for a band 7. This is not a secret. This information is taken from the IELTS public band descriptors and autobiography pen essay is freely available from a test centre or you will find it if you search on the internet. You are given a band score for paraplanner, each of the autobiography, criteria, and the ones in this table in the descriptors column are those that are specifically needed for an IELTS band 7. Addresses all parts of the task Presents a clear position throughout the response Presents, extends and supports main ideas, but there may be a tendency to over-generalize and/or supporting ideas may lack focus. Logically organizes information and ideas; there is a clear progression throughout Uses a range of cohesive devices appropriately although there may be some under-/over-use Presents a clear central topic within each paragraph. Uses a sufficient range of vocabulary to allow some flexibility and precision Uses less common lexical items with some awareness of style and eileen cormier dissertation collocation May produce occasional errors in word choice, spelling, and/or word formation.
Uses a variety of complex structures Produces frequent error-free sentences Has good control of grammar and autobiography punctuation but may make a few errors. When you are graded, you will be given a score for each of art catalogue essay these, and this will then be averaged. So if you are getting a 6.5, that means you must not be meeting the of a, standard required as shown in essay, the table for one or two of them. Task acheivement = 7. Coherence and Cohesion = 7. Lexical Resource = 7. Grammatical Range and Accuracy = 6. Overall writing band = 6.5. As previously stated above, you'd have to show some of your writing to pen essay an experienced IELTS teacher to get some advice on which ones you are not achieving in and to find out if it is always the same criteria. If you find out, you can then work on this to personal essay application improve your score. We'll now just have a look at each of them in a bit more detail to highlight some common areas where you may possibly be going wrong. Very bascially, this is an assessment of whether you have fully answered the question and autobiography of a pen essay provided good support for your ideas . To address all parts of the task, you must respond to everything that is dissertation, asked in the question . To take an example, look at this question: Some people think that the best way to reduce crime is to autobiography of a give longer prison sentences. Others, however, believe there are better alternative ways of reducing crime. Discuss both views and give your opinion.
The task is to discuss both the personal for college application, opinions and to give your opinion . So, for example, if you only wrote about one of the opinions or did not give your opinion, you will not have addressed all parts of the question so you can't get an IELTS band 7 for task achievement. Or if you only autobiography of a, wrote a small amount on one of the opinions, this may not be seen as fully answering the question either. There is a lesson here that explains the importance of dissertation identifying the task to make sure you fully answer all parts of the question. You must also have a clear position throughout . So if your opinion is autobiography, not clear and you seem to change it during the essay, then this could be a problem for achieving an IELTS band 7 in brain, this criterion. You also need to fully extend and support your ideas . So it is not enough just to put lots of ideas down - fewer ideas are better that are explained properly with reasons and autobiography of a examples.
Look at some model essays to see how a clear position is presented throughout and how only a few ideas are presented but they are fully explained and supported. Very basically, this is how you organize and art catalogue essay present your ideas , and how easy your work is to read . Autobiography Of A Pen Essay. So you will need to paraplanner resume know how to organize an essay properly in terms of paragraphing and having ideas that logically and clearly go from one to the next to get an IELTS band 7. Autobiography. Another key point here is that you have to have a clear central topic within each paragraph . To take a simple example, if you are writing about the advantages and essay disadvantages of something, then you may want to have one paragraph about each. Each paragraph will then have a clear central topic - either advantages or disadvantages. If you mix them up, this may not be clear. Again, look at of a, some of the model essays to see how each body paragraph clearly has one central topic. You also need a mix of cohesive devices . These are the things that join and link your ideas, sentences and paragraphs. For example, transitions such as 'however', 'firstly', 'moreover', and other general linking words within sentences such as 'and' and 'because'. You will need a variety and essay mix of these for an IELTS band 7, and you'll need to of a be able to use them effectively with some flexibility rather than mechanically. Your lexis is seneca essays, basically your vocabulary , and as it says in the descriptors, you'll need to show that you know some less common words and be able to use them precisely . Autobiography Of A Pen Essay. Its in the accuracy that is needed for your vocabulary that problems can often occur with regards to dissertation getting an IELTS band 7. As you can see, you can only of a, make occasional errors in your word choice, word formation and spelling.
This means the majority need to be correct! This is obviously no easy achievement and so you'll need to be a fairly skilled writer to be making only occasional errors with your lexis. You can find some useful and wildlife less common vocabulary by of a pen essay, following this link, but you need to learn how to use the words correctly otherwise you may make more mistakes with word forms. Using lots of new words that you don't know how to paraplanner use properly could make your writing worse, so be careful! Only use words you know how to use properly. As will be clear from the title, this one is assessing your level of grammar . You will need to show you can use a wide range of sentence structures and autobiography of a pen essay have a high level of accuracy . Just having a few complex sentences with words such as 'because', 'if' and 'although' may not be enough.
You'll need to application have an autobiography of a, awareness of some more complex structures. Again, like the lexis, this can often be where students struggle to get an IELTS band 7. You need to have frequent error-free sentences. In other words, the art catalogue essay, majority of your sentences can't have grammar errors. Of A Pen Essay. This is not easy, so like with the lexis, you will need to be a fairly skilled writer. The last three criteria are more or less the same for task 1. The differences are in the task achievement as obviously you are being given a different task. This is paraplanner resume, what the of a pen essay, public descriptors have for about brain drain, task 1 (academic): Covers the requirements of the task Presents a clear overview of trends, differences or stages Clearly presents and highlights key features/bullet points but could be more fully extended. The first point is obviously stating that you must do what you were asked in the question. The second point means that at some stage in your writing you must clearly give an overview of the pen essay, main things that are occuring in the graph or diagram. See this lesson on writing a task 1 for more information on this. Cormier. Finally, to acheive in the last point you must be able to autobiography of a show that you can notice and write about the important things that are happening in the graph, and make comparisons between the data.
Again, the lesson above will help you with this. This lesson then has shown you how to get an IELTS band 7 in your writing, or what is required. Resume. Unfortunately there is no magic bullet that is suddenly going to move you up a band. But there may be things you can improve on that will help if you think you are making errors in what what is needed in autobiography, the criteria. For example, are you always spending some time at the beginning analyzing the essay, question carefully to make sure you are answering all parts of of a it and writing a plan / outline ? If not, you may be making errors by not fully answering the question or by not organizing your essay or ideas well. Most of my students that I check are failing to get the argumentative, majority of the sentences error-free or the majority of the autobiography of a pen essay, lexis correct. So this may well be where you are falling down if you are getting a 6.5.
In this case you'll need to work on improving your grammar and art catalogue checking your work very carefully for mistakes. If you have a writing teacher obviously this will help as they can check your work. But again, planning first can help with this because if you plan then you will be able to write quicker. You will then have more time to autobiography of a pen essay be more careful and more time to check your grammar and lexis whilst you write and at the end. Oct 02, 17 12:12 PM. You are going to another country to study.
You would like to do a part-time job while you are studying, so you want to ask a friend who lives there for. September 2017 - Brainstorming and Planning an Essay. Oct 01, 17 04:32 PM. I sent you an essay question last Friday and asked you to come up with a plan to answer the question. This was the essay question: The best way to seneca understand. Multinational Organisations and Culture Essay. Oct 01, 17 04:11 PM. Multinational Organisations and of a pen essay Culture Essay: Improve you score for IELTS Essay writing by studying model essays.
Brainstorming and Planning an Essay. Art Catalogue. Writing a Thesis Statement. Writing an autobiography, IELTS Essay Conclusion. Copyright and copy; IELTSbuddy 2011-2017 All rights reserved#xa0;
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Simple Software for Better Interview Skills. Learn how to of a pen essay, land the paraplanner resume job with Big Interview’s powerful video tutorials and autobiography virtual interview practice software. Cover Letter Examples That Will Get You Noticed. A strong resume cover letter can mean the about difference between landing a job interview and getting passed over. Read and live by this comprehensive cover letter guide from our resume expert and professional resume writer Kimberly Sarmiento and check out autobiography her cover letter examples for inspiration. You Really Do Need a Strong Cover Letter.
You never get a second chance to make a good first impression in the job search. And in about most cases, your first impression on autobiography, a hiring manager begins with your resume and cover letter. If you don’t get the essay cover letter right, you may never get the opportunity to wow them with your new suit, confident eye contact, and compelling interview stories. Even if you network your way into that job interview (and even if you got a great referral from one of your advocates), the hiring manager will look at autobiography of a your resume and/or cover letter and use them to form or influence an personal for college application opinion prior to meeting you . That is pen essay why in my 2009 book, “The Complete Guide to wildlife essay, Writing Effective Resume Cover Letters: Step by Step Instructions,” I refer to your cover letter as your handshake and autobiography of a your sales pitch all rolled into one. I can hear the scoffing now and the protesting that there is no way a cover letter can be that important. “Resumes are selected by key word scans or passed off from one contact to another. No one really reads cover letters anymore, right?” Wrong. The simple truth is that at some point in time your resume – and your cover letter – will be reviewed by resume, a real live person (if you’re lucky).
That person will be deciding whether or not you are worth their time to interview and your cover letter can help confirm that your resume goes into the “yes” pile rather than the “file for future opening” pile (or the real or digital garbage can). Sure, there are times when a recruiter or hiring manager will skip right over the cover letter and focus on the resume. But other screeners won’t even look at your resume if the cover letter doesn’t get their attention. Why take a chance? Write a strong cover letter and you’ll know that you’re doing everything possible to pen essay, get past the gatekeepers and score an interview.
If you are wondering how to write a compelling cover letter, read on for Kimberly’s advice and examples. Three Situations When a Great Cover Letter is Even More Critical. 1) When you need to include information that should NOT go into the resume. A resume is a formal business document with strict rules that must be followed. Seneca Moral? These rules include not writing in first person or including personal information like your desire to relocate. However, there are times when you need to communicate this type of information in order to make the autobiography of a pen essay case for your fit for resume the position: Example: Your cover letter can be used to communicate your intention to make a transition in your career or move to another city/state. Recruiters receive thousands of unqualified resumes for every position. They will look at your resume and autobiography of a cover letter and immediately trash them if they don’t see a fit — assuming that you are another one of those annoying applicants who applies for every job posted.
This is always a challenge for career changers and individuals looking to relocate and a good cover letter can make a big difference. Example: Your cover letter can also explain away other aspects of your particular career situation that might not be appropriate to include on your resume. For example, if you took some time away from the work force, but have kept your skills and knowledge up-to-date. Additionally, in some job ads, the company will ask for specific information to art catalogue, be included in your cover letter. This technique is autobiography pen essay used to make screening easier — if someone can’t follow simple application directions, why waste time on an interview?
Pay careful attention to the information they request and seneca moral essays be sure to address it. One problematic area is if they ask for salary requirements to be included in your cover letter. Companies make this request to help them rule out individuals with higher salary requirements than they have budgeted for the position, but it can also lock you into a lower pay range than they might offer you otherwise. However, ignoring the request could disqualify you as well. Ergo, I suggest you research the average salary for the position you are applying to in the autobiography of a pen essay state of the opening and include a range slightly above and below that number. There are several sites that have compiled census and other data information to give you a decent estimate of salaries by position in dissertation specific cities and states (Payscale is a great place to start). So if the average salary of your job is $60K for the location where you live (or want to live), list your salary requirements as $55K to $65K.
Again, no salary information should be included in a resume. I typically don’t even include information about bonuses or commissions for sales representatives (just awards like President’s Club or Top 5%) . 2) When you want to reference a network connection. There is no right way to include in autobiography of a pen essay your resume, “Our mutual associate John Smith referred me to this role and says he thinks I will make a great fit for the job opening.” That is a reference line reserved solely for the opening paragraph of a cover letter. There are multiple ways you can mention a network connection or mutual friend in a cover letter, but such a statement has no place in a resume whatsoever. Note: In professional resume writing, it has become passe to include a list of references on your resume or even the line “references available upon personal essay for college request.” Such information takes up valuable real estate on autobiography of a pen essay, your resume (which should be 1-2 pages max) and seneca it is autobiography of a pen essay best to focus on your achievements and personal essay for college qualifications instead. Autobiography? Besides, the hiring managers know you will give them references when they request them.
Rather than waste space on your resume, prepare a reference sheet with the same header as your resume and give it to the interviewer at the end of your meeting. This sheet should include the first and last name of your references, their titles and company names, city and state, phone numbers, and resume e-mail addresses if possible. You can even be proactive and have letters of recommendation ready to hand the hiring manager at autobiography the end of your meeting, but don’t send them prior to that initial interview. 3) When you want to emphasize why you’re interested in the company. One way to distinguish yourself as a job candidate is to research the company you are interviewing with and talk about things you like or ask questions about the personal application work they have coming up. This demonstrates your interest in their particular organization as opposed to autobiography of a pen essay, them being just another job ad you responded to in your desperate attempt to find employment. You can use your cover letter to show that you’ve done your homework and see a strong fit with the organization. Within the second or closing paragraphs of cormier dissertation, your cover letter, you can mention being interested in the specific work the company does, recent grants they have been awarded, a product they recently released, etc. Again, this is not appropriate for inclusion on your resume, but adding it to your cover letter can help you stand out from the stack of autobiography pen essay, applications the hiring manager is sorting through on the day your resume passes by resume, him/her. How to Write a Great Cover Letter. Hopefully I have convinced you of the importance of cover letter writing or at least how the letter can prove useful to you in of a pen essay certain circumstances.
But how do you write a cover letter that will open doors for you? And how do you avoid mistakes that can lead to rejection? Please review these five simple rules for essays ensuring your cover letter leaves the of a hiring manager excited about essays meeting you. 1. First and foremost, the letter must be grammatically correct and error free! If you are not a particularly good writer, have someone read and edit the autobiography of a document for you. 2. If printed, the letter should be one page max. Argumentative Essay? The letter should also be printed on high-quality paper just like your resume. In some instances, you might elect to cut and autobiography pen essay paste a cover letter into an e-mail and attach your resume. Resume? If so, you want the cover letter to be easily read with minimal scrolling.
So get to the point and be succinct. 3. The letter should include examples of your qualifications. You can write a cover letter in autobiography of a paragraph or bulleted formats, but either way, you should include examples of art catalogue, your achievements and credentials. While you want to be brief, you also want to encourage the reader to review your resume for greater detail. The best way to do that is to call out two or three things that you have done professionally to catch their attention and make them want to know more about you. Make sure you customize the letter to autobiography of a, highlight the achievements most relevant for each position. 4. Paraplanner? Your letter should address a specific person. Whenever possible, do some research and find out the person’s name who will be reading your cover letter.
This is of a a minor detail and some hiring managers won’t care, but it can distinguish you from your competition all the personal essay for college same. More importantly, don’t send an obviously-generic letter that has not been customized for the company/position. 5. Your letter should end with a call to action. When you close your letter, be sure to autobiography, ask for art catalogue a meeting. It is obvious that you want an autobiography of a pen essay interview when you submit a cover letter and resume, but job hunting is wildlife usually helped along with a proactive approach. Therefore, at every point in of a the application process you should seek to move yourself along to the next stage of consideration. The cover letter is the first instance of this, so don’t miss an opportunity to eileen dissertation, encourage a meeting with the hiring manager at of a pen essay the close of your letter. Also be sure to thank them for their time and consideration.
Check out paraplanner resume Kimberly’s cover letter examples to see and learn from the methods that have worked for her resume writing clients. Cover Letter Example 1: Returning to of a pen essay, Work after a Job Gap/Relocation. Dear Principal Townson: With five years of experience in teaching high school and a master’s degree in Chemistry, I believe I am an ideal candidate to resume, fill the autobiography science teaching position you have open with the retirement of Stacy Jones. My teaching experience was at seneca essays John Smith High School in Smallville, NJ before my husband and I moved here seven years ago.
While there, I taught all levels of Chemistry and helped host the pen essay science fair each year. When we moved here, I was pregnant with my oldest. Now that my youngest has started kindergarten, I am eager to return to the workforce. Although I focused on my family these last seven years and personal essay for college application have not worked for pay, I kept up with developments in of a teaching and argumentative about brain chemistry by reading literature and attending conferences hosted by the American Association of pen essay, High School Science Instructors. I have also volunteered my time at seneca essays the community center, tutoring all level of students in autobiography of a general sciences.
I look forward to raising my children in this community and someday teaching them at Rosewood High School. Please review my attached resume. Personal Essay For College Application? I will be contacting you next week to autobiography, schedule an interview. Thank you for your consideration. Pam’s Take: I love how this cover letter emphasizes the applicant’s relevant qualifications in the first line.
This puts the emphasis on her ability to do the job and not the fact that she’s returning to work after several years as a stay-at-home parent. Later, she briefly explains her break and resume how she has kept current. Her resume will clearly show a gap, so it makes sense to proactively address it. Cover Letter Example 2: Transitioning Careers. Blending a formal background in marketing with proven success in retail sales and customer service roles, I am looking to transition into public relations and believe I would make a great fit for the advertised position of Public Relations Specialist at your company. Having both used and sold your products, I am already well versed in your brand and both present and past years’ offerings.
I have followed with excitement as you launched in European and Asian markets and of a pen essay incorporated an seneca essays international feel into your product line. I would bring both passion and of a pen essay expertise to championing your company with the press and public. I am already trained in essay creating buzz and awareness through social media channels including Twitter and Facebook. When my sales team decided to pen essay, participate in Walk for a Cure three years ago, we used social media to heighten our sponsorship support and raised more than $20K for the event. Confident my transferable skills make me a solid candidate for this opening, I respectfully submit my resume for your review and request a meeting to discuss the opportunity further. I will make myself available at wildlife your convenience and look forward to your call to arrange a time. Thank you for your time and pen essay consideration. Pam’s Take: This candidate leads off with a strong statement about her career change goal and essay her fit for the specific position at hand. Autobiography? She uses the rest of the letter to discuss her interest in the company and some of essay, her key transferable skills/experience. Cover Letter Example 3: Entry Level. I am writing in response to of a, your listing in the Memphis Gazette for a nurse’s aide.
Please accept my enclosed resume for consideration. As a CPR-certified lifeguard and a LPN student at Memphis Community College, I have the formal training necessary for this position. Additionally, with two years of experience in retail sales, I have excellent customer service skills that can translate well to eileen, patient relations. After you have reviewed my resume, I hope to meet with you to discuss how I can be beneficial to autobiography of a, your team. I look forward to hearing from you to schedule an interview at your earliest convenience. Pam’s Take: Nice concise approach for an entry-level candidate.
She doesn’t have years of nursing experience to point to, so she highlights her training and how her non-nursing work experience has also helped to prepare her. Cover Letter Example 4: Professional. As an Accounts Payable Receivable Specialist , I offer a proven ability to accurately process invoices, payments, reimbursements, and tax reports. I quickly learn and adapt to software changes and paraplanner resume updates and help team members resolve issues and problems they are having with data input and autobiography pen essay processing. Examples of my accomplishments include: • Handled biweekly accounts payable processing of checks and ACH payments; reconciled payments made to accounts payable software and addressed any discrepancies that arose. • Created a spreadsheet that listed bank and art catalogue routing numbers to expedite processing of autobiography pen essay, expense reports. • Uploaded and reconciled monthly phone bills for approximately 200 branches and 4 operational centers; total billing amounts were coded for various departments and branches as required. Confident I will prove valuable to cormier dissertation, your company, I respectfully submit my resume for your review. Of A? I would also like to request a personal meeting to discuss your upcoming goals and how I can help you achieve them. I will make myself available at your convenience and look forward to your call.
Thank you for your consideration. Pam’s Take: For an experienced candidate, a bit more detail is expected. This candidate customized the bullet points to specifically communicate his experience with the position responsibilities listed in the job description. As a Human Resources Manager with a strong customer service background, I offer expertise in employee relations, benefits administration, and generalist duties. I have made significant contributions in succession planning and workforce engagement as well as ensuring compliance with employment and labor requirements. I am also known for my ability to help identify and implement key technology and eileen cormier dissertation process improvements. I am well-versed in of a pen essay Six Sigma methods and for college application have lead projects which produced significant and sustainable savings. Other examples of my work include: • Creates positive employee engagement for 2,000+ personnel at of a Company XYZ via proactive communications, prompt issue resolution, and paraplanner resume fair/equitable treatment. • Led Six Sigma project related to autobiography of a, FMLA administration and seneca moral essays online orientation programs for pen essay Lean Belt training.
• Proved instrumental in the deployment of an argumentative about drain E-recruitment system that serviced a Fortune 200 company; defined policies, procedures, and communication planning for the project. Confident I will make a positive impact on your organization, I respectfully submit my resume for your review. I would also like to request a personal meeting to autobiography of a, discuss your goals for this position and essay my potential contributions. I will be available at your convenience and of a pen essay look forward to your call to arrange a time. Thank you for your consideration.
Pam’s Take: This cover letter highlights the applicant’s relevant accomplishments as a leader and manager. It goes beyond stating familiarity with the required job duties and seneca moral essays emphasizes results in key projects. Remember that you don’t want to copy and paste your whole resume into the cover letter. Think about the key selling points that you want to feature prominently. The goal is to of a, make them excited to learn more about you. Cover Letter Example 6: Senior-Level Executive.
As a Senior-Level Finance Operations Executive , I offer proven success in maximizing productivity and improving profit margins. My work spans companies and business units at various stages of growth, including start-up, established, and turnaround settings. Believing profitability requires strong revenue generation and cost controls, I monitor budgets and sales performance closely to identify areas for eileen dissertation improvement. I am known for enhancing overall performance through technology upgrades, advanced employee training, and implementation of best practices. Examples of my work include: • Drove successful launch of start-up company by hiring a talent team, defining product development plans, and leading go-to-market strategies to achieve $35M+ revenue and 50% margins within two years.
• Managed daily operations of a $150M subsidiary that provided a complete suite of manufacturing solutions in the US and Canada; improved profit margins on of a pen essay, overall product line 10%. • Proved vital to moral, reorganization leadership that cumulated in a 10% productivity improvement in the sales and service organization and autobiography a 20% improvement in support organizations. As CPA and MBA, I am confident I will prove valuable to your company and wildlife essay respectfully submit my resume for your review. I would also like to autobiography of a, request a personal meeting to essay, discuss your upcoming goals and how I can help you achieve them. I will make myself available at autobiography pen essay your convenience and in india look forward to your call. Thank you for your consideration.
Pam’s Take: This cover letter nicely distills years of experience into a concise overview that really “sells” achievements most relevant to the specific advertised role. Each bullet presents a compelling high-level overview of pen essay, a specific position, complete with impressive data points. It’s hard to be this concise when talking about a long career! However, a concise letter is resume always more effective — make the most exciting information jump out of the letter and grab the autobiography recruiter’s attention. Many thanks to Kimberly for her expert advice and cover letter examples! Have other thoughts on essay, what would make a great cover letter? Leave a comment below. Humor: Mac and Charlie from “It’s Always Sunny” teach us an important lesson about what NOT to include on your resume. Enjoy! Pamela Skillings is co-founder of Big Interview.
As an interview coach, she has helped her clients land dream jobs at companies including Google, Microsoft, Goldman Sachs, and JP Morgan Chase. She also has more than 15 years of experience training and advising managers at organizations from American Express to the City of autobiography of a pen essay, New York. In India Essay? She is an adjunct professor at New York University and autobiography an instructor at the American Management Association. 14 Comment to Cover Letter Examples That Will Get You Noticed. Good article, Pam. I agree totally with points 2 and 3. Argumentative About? I recently was coaching someone on how to of a pen essay, use step 2. If you were submitting just a resume, like I know a lot of art catalogue essay, applicants do, it would seem very awkward to include that reference somewhere in the text of the resume. It is autobiography of a good to include that in eileen the first couple sentences to make the person’s name stand out. Who you know goes a long way in the career field! Thanks for the comment! Yes, it’s amazing the difference that a referral can make.
very helpful, I have been applying but never landed even a single interview. I have applied so many jobs online but i have never got even one call for autobiography pen essay interview. Thank you very much for this information, I really liked the points 1 and 3, I consider this information very clearly exemplifies the elements that must be considered to make a cover letter. Paraplanner Resume? This is an excellent phrase: You never get a second chance to autobiography of a pen essay, make a good first impression in the job search. Thanks. Eileen Dissertation? Your suggestions are concise and helpful for of a pen essay the many of us out here sending in application after application. What is wildlife your opinion on how to show that you are attentive to detail (one of job responsibilities for a current job opening) . I was thinking that I could point out autobiography of a some typos on essay about drain, the companies website. Do you think this would be taken as a criticism rather than a helpful suggestion? Great website! Thank you!
These are all very helpful examples! I do have one question: It seems unconventional — and a bit overly assertive – to autobiography of a, jump right in on the the in india first sentence of the letter without introducing yourself by name. The standard: My name is —- and I am applying for the —- position. Is it really ok to do this these days? Excellent written and autobiography of a pen essay well explained. As a recruiter I honestly don’t spend much time reading cover letters.
Hiring managers have to dissertation, sort through hundreds of resumes and realistically don’t have time to give most resumes and cover letters more than 30 seconds to scan for the information they are looking for. The cover letter should be short, sweet and highlight the key points you want us to know. Regarding the comments above about applying for jobs but not getting interviews. The resume is the most important part of the autobiography of a application and must be well written with clean formatting. Recruiters and HR Managers want to get to essay, the point of where have you been working, for how long and autobiography pen essay what have you accomplished? Also, you may want to tailor your resume and cover letter to each job you are applying to so that it shows to be a good match for the job.
Furthermore, you should do more than just apply for a job online you need to network with recruiters, attend industry trade shows, join group discussions on moral, Linkedin and more to get you name out there. Love your site. In Example 5 above, you have a misused word. It says, “…and have lead projects which produced” when it should use “led”, not “lead” as lead is current tense and autobiography led is past tense. your comment is wildlife in india so helpful… thank you. Why do you put a comma after dear but also a colon? What is the correct punctuation for a formal cover letter? Do you think it’s appropriate to arrange a time on the cover letter to call the employer so that you can schedule an autobiography of a interview with them? Those letters are really engaging and a lot creative.
A project engineer or project manager will list projects successfully handled as achievements. Pamela Skillings is co-founder of personal, Big Interview. As one of the country's top interview coaches, she has helped her clients land dream jobs at companies including Google, Microsoft, Goldman Sachs, and JP Morgan Chase. She also has more than 15 years of experience training and advising managers at organizations from American Express to the City of of a, New York. She is an adjunct professor at New York University and an instructor at essay the American Management Association.
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Free Downloadable Resume Templates. Free resume templates designed selected by autobiography, RG professionals. Simply choose your favorite and get started. Just scroll down and find a Microsoft Word template that suits your work experience and sense of design. Don’t worry – using a template is personal for college perfectly acceptable. If you don’t feel like designing your own resume, you can instead jump to our free and pen essay, easy to art catalogue, use online resume builder.
Save time and effort – it does all of the writing and formatting for you. Of A Pen Essay. Click the button below and get started! Resume Template Library 1: Resume Genius' Original Designs - Expert's Choice. The above basic resume library was designed by essay, our resident resume experts and have been battle tested by job seekers. As this set performed the best, we included them in our resume builder software– and now we are offering them to you for free to download in Microsoft Word format.
Each professional template comes in five colors. Explore these templates, download them, personalize them, and start getting more interviews. Resume Template Library 2: Advanced Layouts. Professional Brick Red. Timeless Dark Blue. Elegant 2.0 Dark Blue. Modern Brick Red. Due to the popularity of autobiography of a pen essay our professional Microsoft Word templates, we decided to spend more time adding to our database after hearing from customers about what they’d like to see. For these new designs, we’ve created five NEW layouts and updated three of our most popular selections from essay, our resume builder software. Each resume has its own unique aesthetic — but don’t let that fool you. Each resume is thoroughly tested for clarity and readability, meaning that you could use ANY of these resumes and land more interviews.
So have fun, and pick one that suits your sense of autobiography of a pen essay design. But remember — the way you format your resume is extremely important depending on how much experience you have, or if you have any job gaps. So be sure to modify downloaded files to you get to argumentative essay brain drain, match your experience accordingly. Template Library 3: Professional Profile Layouts. Washington Brick Red. Murray Dark Blue. Trump Brick Red.
Introducing our newest batch of Microsoft Word templates, hot off the presses. We created these new designs due to of a pen essay, the growing popularity of our explainer on how to write a professional profile. People interested in in india essay a layout featuring a PP introduction skyrocketed, so we toiled to create 8 brand new HR-approved documents for you to download for autobiography pen essay free. Remember — this particular template is essay for college application best for those of you with some or significant work experience only. Template Library 4: Creative Layouts.
Brooklyn Bridge Black. Taj Mahal Dark Blue. White House Brick Red. Empire State Gray. Mount Rushmore Dark Blue. Are you having trouble separating yourself from your competitors? Have you been using the same resume format since you graduated college over a decade ago? Then it might be time to add some style to your resume! We’ve come up with a new set of autobiography creative designs that are the perfect blend of professionalism, personality, and just the dissertation, right amount of style.
These styles are great for graphic designers, artists, or anyone who wants to autobiography pen essay, add a hint of character to their job search. Template Library 5: Career Life Situations. Job Hopper Original. Mid-Level Dark Blue. Career Changer Brick Red. Whether it’s entry-level, manager, or executive, every job seeker experiences different phases throughout their career. Some phases, like being in the middle of a complete career change or hopping around short-term jobs, are quite difficult to transfer on a resume. Fortunately, we have created a new library of about brain drain templates specifically tailored to the various stages of a career.
Remember: You can download any of these resume templates for free and add the bullet points yourself, or you can make a resume in autobiography pen essay minutes with Resume Genius’ renowned resume builder software. It can save you a lot of hassle designing and filling up your resume, and land you more interviews faster. However, if you’d still like to make the resume on your own, use our industry-specific resume samples to give you guidance and inspiration when writing your own resume. Lastly, don’t forget to check out our professional cover letter examples. Not Sure Which Template to wildlife in india essay, Choose?
The answer is yes — if you want to. Every person’s experience is unique, so you’ll need to choose a template that best reflects and promotes your skills and autobiography, experiences.Our templates are built to be customizable to any industry and are great for essays any of the 3 resume formats. The fact is, the web is filled with so many fantastic and creative template designs that there is undoubtedly something for you out there. We are proud of the designs we’ve created, and have seen that they are effective at landing interviews. But we’re not finished yet — we’ll be adding template designs to of a pen essay, this page extensively in wildlife essay the near future. If you feel like creating your own, that’s fine too. Readability is king when creating a good template — it is the most important factor, followed by how the resume itself is structured to autobiography, showcase your best experiences and art catalogue, conceal your negative ones. You may have read on the Internet that it’s inappropriate to use a resume template. You’ll hear these arguments:
1. It shows you’re lazy and autobiography of a pen essay, uncreative, and unable to seneca moral, design your own. Wrong, it shows you’re efficient. Pen Essay. (Creating your own is fine, too.) 2. Dissertation. Since your experience is unique, a resume template won’t cut it. Wrong again. Of A. Your experience is personally unique, but you still generally fall into argumentative essay, pattern that many other people have traveled before. 3. Of A. The hiring manager will be tired of art catalogue looking at that resume template design because a lot of other people use it. That hiring manager should be fired. It’s the autobiography of a, content of art catalogue your resume that matters, not the aesthetic (unless it’s not readable.) We hope that clears up any misconceptions you may have had.
We invite you to autobiography, scroll back to the top and choose from one of our many resume libraries, and start writing. cover letter for nursing. Should i include collegiate sports in my resume? And if so where? It depends how much professional experience you have. If you are a recent college grad, then it is acceptable to essay, include on your resume. Good luck on the job hunt! Good luck on autobiography of a the job hunt!
If the jobs are relevant to the ones you are applying for, then you can go as far back as you like. With regards to moral essays, your military experience, check out of a our military to civilian resume guide: https://resumegenius.com/blog/go-shooting-guns-coffee-runs. Any of the templates in in india library 2 would be suitable for manufacturing careers. Best of luck! I’ve worked in the same industry for the past 13 years. Of A Pen Essay. Multiple employers with jobs lasting two to three years each. The jobs have been similar, so the experience looks a bit repetitive. I need to find a template that highlights my experience without getting bogged down in the chronology, Any suggestions? It provides ample space for your professional experience, while also highlighting your top qualifications. Good luck on resume the job hunt! hi resume genius.. Of A. i need template resume that suitable for trainer and moral essays, coach.. can u suggest to me with template is suitable.. #128578;
I had a job for 7 years and during that time I wore many hats, Executive Admin, Purchasing, Vendor Management, Project Coordination, etc. How would I write that on pen essay my resume? Perhaps the Company name and then all the argumentative essay brain, related roles under that and the times I did those jobs? I was always the autobiography of a pen essay, Executive Admin, but I did other jobs during that period. Yes, your suggestion is correct. Start with the brain, company name and included the related jobs with their own bullet points underneath. Good luck! Consider trying the ‘Job Hopper’ or the ‘Executive.’ They should able to fit all your jobs nicely.
Ive never had a job so what should I use? Most of the templates above would suit your situation, but we suggest trying the Career Changer template because it emphasizes skills over the dates of autobiography your professional experience. (https://resumegenius.com/resume-templates/career-level-life-situation-templates#career-changer-templates) Best of luck! We suggest using the ‘Gatsby’ Template. Good luck with grad school! As far as style, we suggest our ‘Professional’ template. In terms of paraplanner resume format, if you want to include your restaurant experience, then you might want to consider using a functional format:https://resumegenius.com/resume-formats/functional-samples-writing-guide. Hope this helps! We suggest using our ‘Entry-Level’ template.
Good luck with the internship! Good Day Resume Genius.I’m a midwife by autobiography of a pen essay, profession an has worked in moral a military hospital for 16 years in of a KSA. I’m trying to apply as a home based ESL educator and an email respondent . Art Catalogue. Since I’m from the autobiography of a pen essay, medical profession, I’m having difficulty in choosing the in india, perfect resume.The skill I know is more on the medical.,clerical which involes data entry for of a pen essay appointments and summary, interpreter and my part time informal english lessons to native speaking arabs. What template should I use? Try the ‘Murray’ template. Good luck!
Hello. Which is good for moral essays cabin crew applicant? I have no many work experience in autobiography pen essay service. So i want to highlight the other things. Thanks #128578; Take a look at our Flight Attendant resume sample: https://resumegenius.com/resume-samples/flight-attendant-resume-example You can download it and input your own information. Which template would you recommend for a career in education?
Check out our teacher resume samples: https://resumegenius.com/resume-samples/teacher-resume-example You can download them and wildlife, input your own experience. Try using the ‘Freeman’ template. Best of luck on the promotion! Hi! What resume template would you recommend for a college freshman trying to pen essay, apply for a competitive summer program with the USDA and moral essays, South Dakota State University? Sound like the autobiography of a pen essay, ‘Entry-Level’ template would be a good fit for what you’re trying to do.
Good luck with the summer program. Hi! Which resume template would you recommend for someone trying to tap into the finance and accounting market. Looking for an entry-level position. You should go with the ‘Entry-Level’ template. Essay. Good luck with the autobiography of a pen essay, job hunt. I have worked 32+ years as a nurse, the last 4 years taking care of my elderly father and online work. Now seeking to get back into cormier dissertation, the job market for extra income, not necessarily in autobiography of a the health field, just to earn some income and socialize. What resume do you suggest? Try the ‘Job Hopper’ template.
Good luck with your job search! Hi! What resume template would you recommend for wildlife essay a 9th grader trying to apply for autobiography of a pen essay a doctor (any)?? Apparently, resume making and interviewing is essay about brain drain our project for the fourth quarter this year. I couldn’t find any clear examples on the web, and I was hoping you could help me out with what template I should use..
Try using the ‘Elegant 2.0’ template. Good luck on your project. Yes, if you click the View all Resume Designs button and click the download link for the template pack of your choice. If you’ve never written a resume before, I’d recommend checking out our “How to Write a Resume” guide to get a clearer idea (it’s much more comprehensive than any answer I can give here). https://resumegenius.com/how-to-write-a-resume. Hit us up with any follow-up questions after giving that a read we’ll see if we can help further! Good luck!
Hey there Margaret, In order to best understand which template works, it’s a good idea to check out which resume format fits your particular needs; then you can take it from there. https://resumegenius.com/resume-formats. All of the of a, templates were created by professional resume writers, so it’s hard to paraplanner resume, go wrong with any of them — it just depends on your preference. Good luck! It really depends on what job you’re applying for. Since you have substantial work experience, try quantifying that in pen essay your resume (think: any numbers that a hiring manager can look at application, and better understand what you accomplished during your time working there). Check out this page and autobiography, choose the essay, one you find most fitting, that should be a good start: https://resumegenius.com/resume-formats. Good luck on the job hunt! Hey there hbil036, This way, you can focus on your skills qualifications critical to the job application.
As an aside, you may want to look into whether you’re qualified to get back into accounting after that many years outside of the field. Of A Pen Essay. I understand that some regulations and rules change over eileen the years — it may just be a matter of taking a test or updating your certifications, but I’m not certain. If that doesn’t seem to be a problem then go with the functional resume for sure. Good luck on the job hunt! If you are lacking in autobiography of a pen essay major experience, I’d recommend using a reverse chronological format for your resume. Our “Classic” template on this page should do the trick: https://resumegenius.com/resume-templates/ Good luck at the job fair! I recommend you first check out our internship resume sample page: https://resumegenius.com/resume-samples/internship-resume-example. Essays. Afterwards, feel free to choose any format – just use a comprehensive education section instead of of a pen essay a professional experience section, and seneca moral, you should be good. Good luck landing that internship!
Think you can judge the quality of a resume within 6 seconds? The answer may surprise you. Put your skills to the test, and learn how to make your resume 6 second worthy! 3 Reasons Why I Wouldn't Hire Tom Brady. Tom Brady’s resume is a couple yards short of autobiography of a a touchdown. There are tons of resume errors throughout. See why. How to autobiography of a pen essay, Modify and Maximize your Resume Template.
Need a resume template? Feel free to download one, but be sure to make small modifications to unlock your. Would You Rather Work for a Man or a Woman? Do people still care whether they work for a man or woman, or do most people simply look for a nice job. 5 Ridiculous Excuses To Calling Out Of Work That Were Surprisingly Successful. Every office is bound to have that one person that abuses the call-out policy. These people go above and. Resume Genius' builder, resources, advice and wildlife in india essay, career tips are regularly featured on some of the world's leading online and of a, offline publications including: Our code geeks and HR experts are proud to dissertation, introduce our new Free Resume Builder software to help you land more interviews in autobiography today's competitive job market.
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SAT / ACT Prep Online Guides and Tips. It’s finally that day you’ve circled on your calendar – the day when ACT scores are released. You log into ACTstudent and look at of a, your essay score. There's an 8 for your overall Writing score as well as four different domain scores of 6, 8, 9, and 10. What does your ACT Writing score mean and how is your ACT essay scored? This article will shed some light on both of these things. In India. Feature image credit: eppny by woodleywonderworks, used under CC BY 2.0/Resized from original. A Quick Look into autobiography ACT Essay Scoring.
On test day, you complete the first four sections of the test and write your essay. What happens next? Once ACT, Inc. Dissertation. receives your essay, it is scanned and uploaded to an essay grading program for graders to score. Autobiography. In addition, ACT.org states that “[a]n image of your essay will be available to your high school and eileen dissertation the colleges to which you have ACT report your scores from that test date.” Each ACT essay is scored by two different graders on a scale of 1-6 across four different domains, for a total score out of 12 in each domain. These domain scores are then averaged into a total score out of 12. NOTE : The ACT Writing Test from September 2015-June 2016 had a slightly different scoring scale; instead of averaging all the domain scores to get a total ACT Writing score out of 12, the domain scores were combined and scaled into of a a total score out of 36.
One June 28th, 2016, however, ACT, Inc. announced that starting in paraplanner, September of 2016, the Writing test would no longer be scored on a scale of of a 1-36, due to the confusion this had caused. This change to out-of-12 ACT Writing scores is still different from the pre-September 2015 ACT essay scoring, since that system relied on graders giving the essay one holistic score (rather than 4 analytical domain scores). Because the ACT Writing is optional, your essay score will not be factored into your ACT composite score. Paraplanner. It will, however, be factored into your English-Language Arts subscore, which averages your English, Reading, and Writing scores and of a rounds up to the nearest whole number. So what are the seneca four domains that your essay is scored across? Scores in this domain relate to autobiography of a pen essay your discussion of the personal essay perspectives on the essay topic. 2. Development and Support. Scores in this domain reflect how you develop your points with logical reasoning or specific examples. Scores in this domain relate to your essay's organization on both a macro (overall structure) and micro (within each paragraph) level. Scores in this domain depend on your command of standard written English (including grammar and punctuation); variety in sentence structure and autobiography vocabulary is also rewarded in this domain.
For more on what goes into essay brain each domain score, read my article on pen essay the ACT Writing Rubric. ACT Essay Scoring: Official Policy. Every essay is graded by two graders , who must score the essay within one point of cormier each other. If the graders’ scores disagree by more than one point, a third grader will be brought in to resolve the issue. It's currently unclear whether this means a greater-than-one-point difference in domain score or overall essay score between graders – stay tuned for more information. While your essay receives scores in each of the four domain areas, the domains themselves are graded holistically . Autobiography Of A Pen Essay. For example, in essay, the Language Use domain, there are no guidelines that instruct scorers to of a pen essay deduct 1 point for art catalogue essay every 10 grammatical errors. Another important part of official ACT essay scoring policy is autobiography of a, that factual accuracy is not important. ACT essay graders are not supposed to score essays based on argumentative about brain drain whether or not the facts are accurate. The point of the ACT essay is of a, NOT to write a research paper with well-documented facts on art catalogue a topic. Instead, you're asked to argue in favor of a perspective on of a pen essay the topic and compare your perspective to the other perspectives given by art catalogue the ACT in the essay prompt; as long as your examples support your arguments, it doesn't matter if the examples aren't 100% true. While each domain is graded holistically, there are a few key actions you must take if you want to of a pen essay score above a 2/6 in personal essay for college, each domain.
I've extracted these ACTions via analysis of the autobiography essay scoring rubric as well as through scrutiny of the sample essays the essay ACT provides on pen essay its website. As I go through each domain, I'll be using the following official sample ACT prompt for any examples: Many of the goods and services we depend on daily are now supplied by intelligent, automated machines rather than human beings. Robots build cars and other goods on assembly lines, where once there were human workers. Many of our phone conversations are now conducted not with people but with sophisticated technologies. We can now buy goods at a variety of stores without the help of a human cashier.
Automation is wildlife in india essay, generally seen as a sign of progress, but what is lost when we replace humans with machines? Given the accelerating variety and pen essay prevalence of intelligent machines, it is worth examining the in india implications and meaning of their presence in our lives. What we lose with the replacement of people by autobiography pen essay machines is wildlife in india, some part of our own humanity. Even our mundane daily encounters no longer require from us basic courtesy, respect, and tolerance for other people. Machines are good at autobiography, low-skill, repetitive jobs, and at high-speed, extremely precise jobs. Cormier Dissertation. In both cases they work better than humans.
This efficiency leads to a more prosperous and progressive world for everyone. Intelligent machines challenge our long-standing ideas about what humans are or can be. This is good because it pushes both humans and machines toward new, unimagined possibilities. Autobiography Pen Essay. Write a unified, coherent essay about the increasing presence of intelligent machines. Essay. In your essay, be sure to. clearly state your own perspective on autobiography pen essay the issue and analyze the relationship between your perspective and at resume, least one other perspective develop and support your ideas with reasoning and examples organize your ideas clearly and logically communicate your ideas effectively in standard written English. Your perspective may be in full agreement with any of the others, in partial agreement, or wholly different. You must: Have a clear thesis in your essay. Because you are writing a persuasive essay, it is autobiography of a pen essay, imperative that you make your position on the topic clear . Otherwise, how can you persuade someone that your view is the correct view? Since you have limited time and have to compare your perspective with at eileen, least one of the other perspectives anyway, choose one of the three perspectives given to you by the ACT to of a pen essay argue for in your thesis. You must: Discuss the relationship between your perspective and at least one of the perspectives that the ACT mentions in the prompt. Essay. The prompt explicitly states that you need to analyze the relationship between your perspective and at least one other perspective.
If you fail to discuss how your perspective relates to any of the given perspectives, it will be very difficult to autobiography of a pen essay score above a 2 or 3 in the Ideas and Analysis Domain. Personal For College. With the above Intelligent Machines prompt, for instance, you'd need to compare your position to at least one of the following: how machines cause us to lose our own humanity (Perspective One), how they are efficient and create prosperity (Perspective Two), and how machines challenge us and pen essay push us to new possibilities (Perspective Three). You must: Support your discussion of each perspective with either reasoning or example. There are a couple of ways you can support your arguments. One way is to use reasoning , which tends to argumentative essay about brain drain be more abstract.
For example, if you were using reasoning to of a pen essay support your argument for Perspective Two, you could discuss how machines taking over lower skill jobs frees up humans to do higher skilled tasks that require more creative thinking. Essay Drain. The other way you can support your points is through use of specific examples . For example, to support Perspective Two, you could use the example of how the mass-production of clothes has made it less expensive for everyone to own things like good boots. For a high score in this domain, you must: Discuss both positive and autobiography negative aspects of the perspectives you disagree with as well. In order to achieve a high score in this domain, you must show that you understand the complexities of the issue. Argumentative Brain Drain. The main way to autobiography do this is to discuss the pros as well as the moral essays cons of the perspectives you disagree with. For instance, if you agree with Perspective Two in the above prompt (machines make us more efficient and that’s good), when you discuss Perspective One you should provide a brief instance of that perspective being sort of true before moving on to show how it is not as true as Perspective Two. Learn how to juggle both sides of a perspective in our article on how to write an ACT essay step-by-step. You must: Group your ideas logically. Writing an organized essay will make it easier for the essay graders to follow your logic and reasoning.
Grouping your ideas logically can mean separating out autobiography of a ideas into eileen different paragraphs (for instance, putting each perspective into its own paragraph), or it can involve clearly linking different aspects of the same idea in the same paragraph . Pen Essay. No matter how you plan out resume your essay, try to autobiography of a make it as easy as possible to follow your arguments. Being able to communicate clearly is paraplanner, a key skill for college and life in general, so it makes sense that it would be tested on the ACT (a college entrance exam). ACT essay graders care more about the clarity of your thoughts than the fanciness of autobiography your language. Clarity of writing normally entails using proper grammar and clear, non-convoluted sentence structures. Cormier. Throwing in fancy vocab won’t get you anywhere if it makes things less clear instead of more clear (I've seen this happen too many times to count).
In addition, re-reading and revising your essay can help you make sure you are saying what you mean. Example of an unclear sentence: Machines are more practical because they are cheaper and so you can hire less people to do the work and pay less money overall and so you have a better profit margin. Example of a clearer sentence (revised): Machines are more practical and cheaper in the long run because you can higher fewer people to get the same work done. TURNS out, the steam engine was more practical (and cheaper in the long run) than a thousand people pushing and pulling a train by pen essay hand. What Does This Mean For Your ACT Essay? Be clear up front what your perspective on the issue is. Don't hide your thesis. Make it obvious when you’re discussing each perspective (and make sure to discuss the relationship between your perspective and at personal for college application, least one other ). Support each argument with reasoning and/or specific examples. Take time to pen essay plan so you can write an seneca moral organized essay.
Focus on writing clearly before you start worrying about using advanced vocabulary. You've learned what your essay needs to of a pen essay include. But how you do you decode the prompt? Follow along as I teach you how to attack ACT Writing prompts. Want to seneca moral essays improve your ACT score by 4 points?
Check out our best-in-class online ACT prep program. We guarantee your money back if you don't improve your ACT score by 4 points or more. Our program is entirely online, and it customizes what you study to your strengths and of a pen essay weaknesses. If you liked this ACT Writing lesson, you'll love our program. Paraplanner. Along with more detailed lessons, you'll get your ACT essays hand-graded by a master instructor who will give you customized feedback on pen essay how you can improve.
We'll also give you a step-by-step program to follow so you'll never be confused about what to study next. Check out argumentative about drain our 5-day free trial: Have friends who also need help with test prep? Share this article! Laura graduated magna cum laude from Wellesley College with a BA in Music and Psychology, and earned a Master's degree in Composition from the Longy School of Music of Bard College. She scored 99 percentile scores on the SAT and pen essay GRE and loves advising students on how to excel in high school. You should definitely follow us on social media. You'll get updates on our latest articles right on your feed. Follow us on all 3 of our social networks: Have any questions about application this article or other topics? Ask below and we'll reply!
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dessay height Drunk Driving is a serious offense. Of A Pen Essay. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and personal essay for college, defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the autobiography of a 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 age of 21, he or she is prohibited from driving if his or her BAC is paraplanner resume, higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in of a court. Wildlife In India Essay. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the of a influence, and personal application, always prosecute those people in court. There are defenses to a Massachusetts DUI and pen essay, Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in art catalogue essay a diversion program.
The case is of a pen essay, 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 argumentative essay about brain, six months. A third DUI is of a, punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for paraplanner resume, two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of autobiography of a pen essay, Correction. •License suspended for argumentative brain, 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. Autobiography. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and personal essay application, court fees (over $2500 in autobiography pen essay total), as well as take a hit to your insurance.
•Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to personal, 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in autobiography of a most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in essays the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.
•License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at of a pen essay, least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at essay brain, 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 of a, by the defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license).
•If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only resume, be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is pen essay, still a tough punishment to accept for 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 prior is in another state, or decades old, you will be forced to get an interlock device installed in seneca moral your car as a condition of license reinstatement. The Registry is harsh on this point, and there is of a pen essay, nothing any lawyer can do about it. Brain. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program.
•License suspended for of a, 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 wildlife in india, fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only happens if the autobiography pen essay 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 cormier dissertation, a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.
•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Autobiography Of A. Even a small chance of winning the case is worth the personal risk, since it is probably your only chance to avoid jail time. Autobiography Of A Pen Essay. You need to consider fighting your case at trial in almost all cases.
MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to essay, do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer.
You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on pen essay, how your DUI or OUI violation is charged and prosecuted. Here is art catalogue, a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of 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 autobiography of a weight, of alcohol in their blood of seneca essays, eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in autobiography pen essay section one of personal essay application, chapter ninety-four C, or the vapors of glue shall be punished by a fine of of a, 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 art catalogue essay, imprisonment. There shall be an assessment of autobiography pen essay, $250 against a person who is convicted of, is personal, placed on probation for, or is granted a continuance without a finding for autobiography, or otherwise pleads guilty to or admits to a finding of resume, 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 autobiography of a the court with the seneca state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to autobiography, the General Fund. The assessment shall not be subject to paraplanner, reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to autobiography of a, a finding of sufficient facts for operating a motor vehicle while under the influence of argumentative about drain, intoxicating liquor or under the autobiography of a influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against art catalogue essay whom a fine is assessed is sentenced to autobiography, a correctional facility and 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 monies, from time to time, into the Victims of Drunk Driving Trust Fund established in argumentative about drain section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by autobiography pen essay the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of essay, Drunk Driving Trust Fund pursuant to this section shall be in addition to, and autobiography pen essay, 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 this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of in india essay, a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for pen essay, probation, parole, or furlough or receive any deduction from his sentence for essay, good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of pen essay, correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the resume 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 autobiography pen essay, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in wildlife in india employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by autobiography of a pen essay the department of correction for the incarceration and rehabilitation of seneca moral essays, drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the autobiography of a pen essay commission of the offense for art catalogue essay, which he has been convicted, the defendant shall be punished by a fine of autobiography of a, not less than one thousand nor more than fifteen thousand dollars and by seneca moral imprisonment for of a, not less than one hundred and eighty days nor more than two and one-half years or by a fine of cormier dissertation, not less than one thousand nor more than fifteen thousand dollars and by imprisonment in of a pen essay the state prison for wildlife in india, 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 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 autobiography of a pen essay, engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to art catalogue essay, support the autobiography of a recovery of an seneca moral essays offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and pen essay, provided, further, that the defendant may serve all or part of such one hundred and in india essay, fifty days sentence to the extent such resources are available in a correctional facility specifically designated by pen essay the department of correction for in india, the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the of a date of the commission of the offense for which he has been convicted the essay for college 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 not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the autobiography of a warden, superintendent, or other person in charge of a correctional institution, or the administrator of wildlife in india essay, 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 autobiography of a funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at resume, said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of autobiography of a, drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of essay, a like offense four or more times preceding the date of the commission of the of a offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for eileen cormier, not less than two and autobiography of a pen essay, one-half years nor more than five years; provided, however, that the brain sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of 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 funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to autobiography of a, engage in employment pursuant to a work release program; or for seneca essays, the purposes of an aftercare program designed to support the recovery of an autobiography offender who has completed an essay alcohol or controlled substance education, treatment or rehabilitation program operated by pen essay the department of correction; and personal essay for college, provided, further, that the defendant may serve all or part of autobiography of a, such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of dissertation, correction for the incarceration and autobiography of a pen essay, rehabilitation of argumentative essay about, drinking drivers. A prosecution commenced under the of a pen essay 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 eileen dissertation, a jury-of-six session, until the autobiography pen essay court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the 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 in india essay, this subparagraph, the prosecutor may apply for 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 pen essay, one or more prior like violations.
If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the eileen dissertation court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to autobiography of a, section twenty-six A of personal essay for college application, chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the autobiography of a pen essay commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the wildlife in india essay court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the autobiography offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and art catalogue essay, (2), a judge, before imposing a sentence on a defendant who pleads guilty to autobiography, 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 paraplanner resume, a like offense two or more times of the date of the commission of the offense for autobiography, which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the defendant, if any, and such information as may be available as to wildlife in india essay, the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the autobiography pen essay safety of the art catalogue essay public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to of a pen essay, participate in an out patient counseling program designed for such offenders as provided or sanctioned by personal essay for college application the division of autobiography pen essay, alcoholism, pursuant to regulations to be promulgated by said division in consultation with the seneca department of autobiography, correction and essay application, with the autobiography of a approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by eileen cormier dissertation 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. Autobiography Of A. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and moral, completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and autobiography of a pen essay, proceedings under the provisions of section three of essays, chapter two hundred and pen essay, seventy-nine shall be commenced.
In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for wildlife essay, good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on pen essay, the recommendation of the eileen cormier dissertation warden, superintendent, or other person in charge of a correctional institution, or of the pen essay administrator of resume, a county correctional institution, grant to an offender committed under this subdivision a temporary release in autobiography the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in essay for college employment pursuant to autobiography, a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to seneca, pay; and provided, further, that such person files with the court, an affidavit of autobiography of a pen essay, indigency or inability to pay and essay, that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to autobiography pen essay, such individual or to the family of wildlife in india, such individual, and that the autobiography pen essay court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to personal essay, make partial or installment payments of the autobiography of a cost of said program. (b) A conviction of a violation of in india essay, 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 autobiography of a pen essay date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and essay, has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate.
Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to of a, the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of resume, a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the autobiography of a pen essay date of the wildlife in india commission of the offense for which he has been convicted, the registrar shall not restore the autobiography pen essay license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the paraplanner resume defendant, until one year after the date of of a, conviction; provided, however, that such person may, after the eileen cormier 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 a new license for of a, employment or educational purposes, which license shall be effective for not more than an eileen cormier dissertation identical twelve hour period every day on autobiography, the grounds of hardship and a showing by the person that the causes of the present and argumentative brain, past violations have been dealt with or brought under control, and the registrar may, in of a his discretion, issue such license under such terms and conditions as he deems appropriate and essay, necessary; and of a pen essay, provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the 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 dissertation present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the autobiography of a pen essay right to moral essays, 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 autobiography pen essay a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of art catalogue, such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the of a causes of the present and essay brain, past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the autobiography of a pen essay date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of moral essays, hardship and a showing by the person that the causes of the autobiography of a pen essay present and past violations have been dealt with or brought under control and paraplanner, the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to autobiography of a, operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by moral essays a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to autobiography of a pen essay, a violation of said section due to paraplanner resume, a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the of a registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of argumentative essay, requesting the issuance of a new license for autobiography, employment or education purposes, which license shall be effective for seneca essays, not more than an identical twelve hour period every day, on the grounds of hardship and a showing by of a 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 seneca essays, necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the autobiography of a registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Seneca. 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 autobiography of a pen essay 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 wildlife in india essay commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the autobiography of a pen essay registrar shall not restore the license or reinstate the right to operate of in india essay, such person unless the autobiography of a pen essay prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of 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 essay, a showing by the person that the causes of the autobiography 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 wildlife essay expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of of a, requesting the issuance of essay for college, 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 autobiography of a, 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 art catalogue essay, the duration of the hardship license. (33/4) Where the license or the autobiography of a 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 resume commonwealth or any other jurisdiction because of a like violation four or more times preceding the of a date of the commission of the art catalogue essay offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of autobiography pen essay, such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on essay, 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 autobiography favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from paraplanner, any order of the registrar of of a pen essay, motor vehicles under the provisions of this section.
(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of paraplanner, sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from autobiography of a, records of the in india department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the autobiography pen essay defendant before the essay about court had been convicted previously or assigned to autobiography, 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 seneca moral any court of the pen essay commonwealth to prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to resume, introduce any additional corrobating evidence, nor live witness testimony to autobiography of a, establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of essay, this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the pen essay 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 in india essay first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.
(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’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 of a, his breath, shall be admissible and deemed relevant to the determination of the personal application question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the of a pen essay results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and essay, provided, further, that blood shall not be withdrawn from any party for autobiography, the purpose of such test or analysis except by drain a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the autobiography of a pen essay person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of dissertation, twenty-one and autobiography, such evidence is that the art catalogue percentage, by weight, of alcohol in pen essay the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and wildlife in india, sworn to, by a chemist of the department of the pen essay state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of eileen cormier dissertation, alcohol in such blood shall be prima facie evidence of the percentage of alcohol in autobiography such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to seneca essays, a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the autobiography influence of intoxicating liquor; provided, however, that no such person shall be deemed to drain, have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and of a pen essay, provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to essay application, have consented to of a, a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for cormier dissertation, such refusal, no such test or analysis shall be made and autobiography of a, he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of personal essay, said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 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 of a, 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to cormier, submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. Autobiography. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of in india, section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to autobiography, take a test under this paragraph, the cormier police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by autobiography the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in essay for college a format approved by of a pen essay the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the costs for the towing, storage and paraplanner, maintenance of the autobiography pen essay 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 paraplanner 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 autobiography of a, 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 in india, 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 police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to autobiography pen essay, the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at art catalogue, any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to autobiography, operate shall become effective immediately upon receipt of the notification of suspension from the police officer. Paraplanner. A suspension for of a, a refusal of eileen, 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 autobiography of a same incident, and as to each other. No license or right to operate shall be restored under any circumstances and moral essays, 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 autobiography pen essay court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is essay, not less than eight one-hundredths or the of a pen essay person is under twenty-one years of seneca essays, age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Autobiography. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of 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 resume person was administered a test or analysis, that the operator administering the test or analysis was trained and autobiography of a pen essay, certified in seneca moral essays the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by pen essay the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and essay, that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to pen essay, suspend, in seneca essays a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to autobiography of a, 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 about drain notice of intent to suspend from autobiography pen essay, a police officer.
The license to operate a motor vehicle shall remain suspended until the disposition of the offense for essay, which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is of a pen essay, two one-hundredths or greater and upon art catalogue, the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the of a driver’s license or permit issued by eileen cormier dissertation the commonwealth, and, in the absence of a complaint alleging a violation of of a pen essay, 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 essays, operate a motor vehicle upon receipt of of a pen essay, 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 wildlife, shall be sworn to under the penalties of perjury by such police officer. Each such 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 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. Pen Essay. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of eileen cormier, public safety, that the of a pen essay 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 essay brain drain, the time the autobiography pen essay test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered. The license to cormier dissertation, operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of of a pen essay, access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the resume registrar finds on pen essay, any one of the 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 issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in essay the district court for autobiography of a, the judicial district in which the paraplanner resume offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of of a pen essay, 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 for college application submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by of a the evidence in the record, the court may reverse the argumentative essay about brain drain 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 autobiography pen essay, the basis of chemical analysis of for college, his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to of a pen essay, a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to 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 wildlife 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 of a pen essay, twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to paraplanner, operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to 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 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 paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by autobiography of a weight, of eileen, alcohol in autobiography of a 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 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 dissertation, such restoration. (h) Any person convicted of a violation of subparagraph (1) of of a, 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 art catalogue, glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. Of A Pen Essay. The court shall set such financial and other terms for the participation of the in india 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 of a pen essay, any way or in any place to which the public has a right of access, or any place to which members of the eileen cormier dissertation 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 autobiography, making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in art catalogue 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 pen essay, not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in resume the state prison for not more than five years or in a house of autobiography of a, correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of eileen dissertation, his two most recent prior offenses shall be punished by a fine of autobiography, 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 personal for college application, not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. Autobiography Pen Essay. 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 paraplanner resume the judgment of the court or justice receiving the complaint there is reason to autobiography pen essay, believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by about brain drain 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 autobiography public might be endangered, or upon paraplanner resume, a bet or wager or in a race, or whoever operates a motor vehicle for autobiography pen essay, the purpose of wildlife in india essay, making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and autobiography of a pen essay, making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in paraplanner resume an application for such a license or learner’s permit, or whoever knowingly makes any false statement in autobiography of a pen essay an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the 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 moral, whoever uses a motor vehicle without authority knowing that such use is of a, unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of about drain, not more than one thousand dollars, or by both such fine and imprisonment; and of a pen essay, whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by dissertation imprisonment for autobiography of a pen essay, not less than six months nor more than two and one half years in a house of paraplanner resume, 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. Of A Pen Essay. 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 argumentative essay drain the judgment of the court or justice receiving the complaint there is reason to autobiography, believe that the defendant will appear upon a summons.
There shall be an personal application assessment of $250 against a person who, by a court of the autobiography of a pen essay commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of 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 wildlife the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to autobiography pen essay, the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the resume public shall have access as invitees or licensees, and autobiography, without stopping and making known his name, residence and the registration number of resume, his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in autobiography pen essay the death of argumentative essay about brain drain, any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to autobiography, 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 personal for college application, avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the of a pen essay injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by seneca moral essays imprisonment in a jail or house of of a pen essay, correction for cormier dissertation, not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at of a pen essay, least one year of such sentence; provided, however, that the commissioner of correction may on resume, the recommendation of the warden, superintendent or other person in of a 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 art catalogue essay officer of of a, such institution for wildlife in india essay, the following purposes only: to attend the funeral of a relative; to autobiography of a, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to personal for college, engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the autobiography of a pen essay license or right to operate of the essay person so convicted, and no appeal, motion for new trial or exceptions shall operate to of a, stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to eileen dissertation, operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to autobiography, him, if the prosecution has terminated in essays favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in autobiography pen essay any court for a violation of essay for college application, any provision of paragraph (a) or (a1/2) of autobiography, subdivision (2); provided, however, that no new license or right to resume, operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of autobiography, revocation following his conviction if for a first offense, or until two years after the essay date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for autobiography, a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for argumentative about, a first offense or one year after the date of revocation following any subsequent conviction within a period of of a pen essay, three years. Paraplanner. 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 of a pen essay, license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of seneca, revocation following a subsequent conviction within a period of 3 years.
The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of pen essay, section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of paraplanner resume, any provision of autobiography of a pen essay, this section, if a subsequent offence, shall not, unless the eileen dissertation interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by of a pen essay affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. Essay About Drain. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to autobiography of a, this section, introduction into argumentative evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the pen essay date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of essay, 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. Autobiography Of A. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant’s motion, under Mass. R. Crim. Argumentative. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of autobiography, misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant’s motion is paraplanner, DENIED.
At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on autobiography pen essay, or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite essay for college application, direction. The truck was driven by the defendant, who was then on her way from of a pen essay, her home in Ayer, via Route 111, to Groton center. Resume. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and autobiography of a, felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and paraplanner, that her truck veered out of of a pen essay, her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.
The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the personal public might have been endangered, and that she was under the influence of an autobiography pen essay 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. Art Catalogue. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to autobiography, negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the seneca moral essays Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the autobiography afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the art catalogue point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. Autobiography Of A. 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 essay brain, 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. Of A. c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of personal essay for college, one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to autobiography, 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 essay for college application, whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. Of A. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and art catalogue, September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.
OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the pen essay 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 art catalogue 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 autobiography pen essay Dr. Moral. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at autobiography pen essay, that time. His practice is to recommend to argumentative brain drain, 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 autobiography procedure (the defendant is a smoker), both place the patient at increased risk for essay brain drain, dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and autobiography, staples to the bag containing the pill bottle. Resume. 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 pen essay 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 dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. 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. Paraplanner Resume. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to pen essay, Therapeutic and eileen cormier dissertation, Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the autobiography pen essay other scheduled and paraplanner, the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.
In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the autobiography of a defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the paraplanner 29th). She also stated that she had been having trouble sleeping, and autobiography pen essay, that the art catalogue night before the autobiography of a accident, she had gone to bed about eileen cormier, 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Pen Essay. Of the argumentative essay brain scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the of a pen essay opium plant and used for moderate to essay about, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and autobiography, vigilance; difficulty coordinating eye movements; and light-headedness.
• Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to wildlife essay, diazepam, but slower-acting and autobiography pen essay, with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours.
Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the moral non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to pen essay, control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Essay Brain. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia.
Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “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 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 autobiography pen essay, an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of cormier dissertation, producing these effects. Of A Pen Essay. 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 eileen, showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to autobiography of a, whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.
3. Resume. Arthur Ragusa was a nurse at of a, the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). Paraplanner Resume. 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 autobiography, the Groton Police, the defendant said she had taken her medications the morning of the accident. Argumentative Brain Drain. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on autobiography, a locked floor at Emerson Hospital). Moral. She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the 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 September 1. She never mentioned diazepam, lorazepam, or oxycodone in autobiography of a pen essay her statement to personal essay for college application, the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol.
2. Melissa Heys, a nurse with the nearby Groton School, came on autobiography of a pen essay, the scene very shortly after the essay accident, and autobiography of a pen essay, went to cormier dissertation, see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to of a pen essay, follow the seneca moral essays directions of the autobiography of a pen essay EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the about defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Autobiography. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and seneca essays, oriented “times 3? (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the autobiography pen essay presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the essays 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 of a pen essay, 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 paraplanner, avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the autobiography pen essay accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and wildlife in india, the jury could have discredited her statements both that she swerved right to pen essay, avoid cars and personal application, that she swerved left to avoid the bicyclist.
There was also testimony from autobiography of a pen essay, two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and resume, Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at pen essay, a friend’s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite essay about, (northbound) lane. As they and autobiography of a pen essay, the truck approached one another at essay, a curve in the road, the truck swerved into their lane and autobiography of a pen essay, beyond, into the dirt by the (wrong) side of the essay application road. Of A Pen Essay. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to seneca moral, the police, the defendant stated that the only significant event on her drive from autobiography pen essay, Ayer to art catalogue essay, Groton was that her sandal “fell off once” in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”
Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the pen essay truck after the essay drain accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in of a pen essay the garage was the one he had seen on Groton School Road. Brain. Curcio, on the hand, testified that he was positive that it was the same truck. Autobiography Of A Pen Essay. The time, place, and descriptions of the encounter were such that the seneca moral essays jury would have been warranted in concluding that the driver was the defendant, and autobiography of a pen essay, that her near-miss with the Krusen-Curzio vehicle took place just before the art catalogue accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth’s case.
At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for autobiography of a, a directed verdict [was] legally sufficient to permit the submission of the seneca case to the … jury, to of a pen essay, decide the innocence or guilt of the accused.” Commonwealth v. Eileen Cormier. Latimore, 378 Mass. 671, 676 (1979). Autobiography. I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at paraplanner, whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to autobiography pen essay, proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. Personal Essay. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.
App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the autobiography pen essay sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the seneca moral essays 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 autobiography of a pen essay, the prosecution, any rational trier of fact could have found the essential elements of the personal essay crime beyond a reasonable doubt.” Thus, to sustain the denial of a directed verdict, it is not enough … to find that there was some record evidence, however slight, to support each essential element of the of a pen essay 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. Argumentative Essay About Brain Drain. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass.
454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of autobiography pen essay, motion for directed finding). As noted above, in essay the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in autobiography of a pen essay the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Paraplanner. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. Autobiography Of A. 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 scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). Argumentative Essay Drain. 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 diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).
From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for autobiography, diazepam and argumentative essay brain, (more especially) lorazepam indicated regular consumption; 3. That the of a recency of her filling prescriptions for oxycodone (August 29, 2001) and argumentative drain, lorazepam (August 31, 2001) — particularly when combined with the of a indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the essay about drain other circumstantial evidence of intoxication; 6. Of A Pen Essay. That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for essay, either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of pen essay, abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the art catalogue accident to detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.
Ct. Autobiography. 713 (2002) and seneca moral essays, Commonwealth v. Autobiography. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of 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 resume jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and pen essay, dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.
An inference drawn from circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Essay. 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 autobiography, denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and cormier, may include in the alternative a motion for a new trial. Of A Pen Essay. If a verdict of guilty is returned, the personal essay for college application judge may on motion set aside the verdict and of a, order a new trial, or order the entry of a finding of not guilty, or order the essay about brain 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. Autobiography Pen Essay. c. 278, §11. In a recent (and celebrated) discussion of personal essay for college, 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 autobiography, the courts at both trial and appellate levels reflect the art catalogue evolution of legislative policy promoting judicial responsibility to ensure that the autobiography 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 in india 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 granting a new trial.
The judge’s power under rule 25(b)(2), like our power under G.L. c. Autobiography Of A Pen Essay. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the resume judge’s own error, or … the autobiography pen essay interaction of several causes. Commonwealth v. Woodward, 427 Mass. Cormier. 659, 666-67 (1998). As the trial judge in autobiography pen 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 wildlife in india umpire enforcing the rules, now must determine whether, under the special circumstances of autobiography of a, this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to essay for college, consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. Autobiography Of A. The SJC added, to dissertation, what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is of a, 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. Argumentative Essay Brain Drain. 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 autobiography of a pen essay, play the role of thirteenth juror” or to “second guess the essay about brain jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to autobiography, operating to endanger):
1. The lack of any direct evidence, or of essay, overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the of a pen essay defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an art catalogue essay argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in autobiography of a pen essay the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in about brain drain its entirety, is difficult to of a pen essay, discount. Art Catalogue Essay. Perhaps the strongest single piece of evidence came, not from autobiography of a pen essay, medicine or from seneca moral, pharmacology, but from autobiography, physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of eileen, 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 of a, undercut by resume the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the autobiography of a controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and seneca, rational one.
As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is autobiography pen essay, most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of eileen, human intent in homicide cases. These are cases in which the law, for reasons of social utility and of a, fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an argumentative drain ascertainable fact. Its determination on autobiography, the evidence presented in personal for college this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the autobiography pen essay ability of the jury. In India Essay. That evidence, if necessarily circumstantial and pen essay, incomplete, was nonetheless substantial in essay for college its quantity and its overall quality. Trial presentations for autobiography pen essay, both sides were excellent.
I do not think the jury’s verdict represented a miscarriage of brain, justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to autobiography of a, the contrary notwithstanding, neither the statutes, nor the conviction in paraplanner 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 autobiography of a, do so safely (for operating under), and personal, that she thereby caused the autobiography pen essay death of another person (for vehicular homicide).
Impairment by a prescription drug may be as dangerous as impairment by eileen cormier 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. Pen Essay. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and wildlife, will be addressed in this case — in sentencing. For the foregoing reasons, the defendant’s Motion for Relief Pursuant to autobiography, Mass. R. Crim. Argumentative Essay About Brain. P. 25(b)(2) is DENIED. The date for pen essay, 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 essay death of autobiography pen essay, another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to art catalogue essay, endanger, resulting in death. Autobiography Pen Essay. 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 personal for college application, two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass.
54 (1994), of autobiography, Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to dissertation, this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into c. 90, §§24(a) and 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 me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by pen essay her psychotherapists, and argumentative essay about brain drain, 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. Autobiography. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by dissertation 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. Pen Essay. Brower, of the calming and seneca moral, sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.
8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and of a pen essay, Curcio. 10. At the essays defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to pen essay, drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. Cormier. 1015 (1996). Here, there was evidence of of a pen essay, ingestion of multiple controlled medications, but a single homicide resulting from a single operation of essay about drain, a motor vehicle.
Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. Autobiography Of A. 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 driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Eight of art catalogue essay, these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the autobiography of a pen essay influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.
Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.
The defendant appeals from the revocation of his probation, based on art catalogue essay, evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and 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. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the of a pen essay influence of alcohol and cormier dissertation, operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the autobiography pen essay 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 resume defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the autobiography of a pen essay entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the argumentative about drain law, because it was uncorroborated; and (4) his admission was not the product of autobiography, voluntary actions, because at the time of the admission he was intoxicated, and essays, prior to his admission he had not been given his Miranda warnings.
We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Pen Essay. Read testified at cormier, the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on pen essay, Route 130 in search of the vehicle. Read found it parked at the side of the road. Paraplanner Resume. Read observed the autobiography pen essay 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 argumentative essay about, began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the pen essay woods by the side of the road, where he apparently had been urinating.
Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of about drain, alcohol, and of a, placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in cormier dissertation the rear of Coronella’s police car and Crosby was placed in the rear of Read’s police car, both for transportation to the police station.
En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the of a driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the essay driver. Read obtained a signed, written statement from Crosby that the autobiography pen essay defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the paraplanner resume defendant under arrest for autobiography pen essay, operating the wildlife in india essay motor vehicle on Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the autobiography of a defendant to have a blood alcohol reading of .16.
Officer Sean Sullivan, who had been called to inventory the wildlife in india essay contents of the defendant’s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and autobiography of a, Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at in india essay, that point. According to autobiography of a, both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to 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 defendant had been driving the vehicle at the time it was stopped. 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 eileen cormier dissertation written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from autobiography of a pen essay, his home to art catalogue essay, 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 connection with the incident that occurred on Route 130, and autobiography pen essay, that the notice of cormier dissertation, violation of autobiography, probation did not include mention of his operating the eileen cormier motor vehicle on a public way earlier in autobiography pen essay the day.5 The Commonwealth appears to cormier, concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Autobiography Of A. Durling, 407 Mass. Essay. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of of a, conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity.
See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. Essay Application. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is autobiography of a pen essay, not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at eileen dissertation, 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. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in of a pen essay the police reports that were generated in relation to the charges listed on argumentative drain, the notice of probation violation. In any event, assuming that the failure to autobiography pen essay, specifically enumerate the eileen dissertation misconduct on the face of the of a pen essay notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of personal, defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the of a officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the influence charge.
With respect to the remaining issue, operating after suspension of about brain drain, license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of operating after a suspended license. And there are two incidents of operation, one of autobiography, which I understand my client is paraplanner resume, accused of admitting that he did. Autobiography Of A Pen Essay. 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 that issue and for college application, not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in autobiography pen essay the proceeding, counsel engaged in vigorous cross-examination of the in india essay officer with regard to the defendant’s statement that he had driven the car earlier in the day, and autobiography pen essay, went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house. Counsel was amply prepared at essay, the start of the of a pen essay hearing to consider the issue of the defendant’s admitting to the first occasion of eileen cormier dissertation, 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. 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. Pen Essay. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the argumentative about brain drain statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to autobiography pen essay, the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and personal essay for college, was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the autobiography of a statement that formed the paraplanner basis of the violation. Autobiography Of A Pen Essay. The record shows that the conversation reported by Coronella, in which the defendant admitted to eileen dissertation, driving the autobiography vehicle that morning, took place after the paraplanner resume defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to autobiography of a, agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible.
Following the rationale established in eileen cormier 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 pen essay Fourth Amendment, the argumentative essay Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. Pen Essay. 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 paraplanner resume violation of the autobiography defendant’s Miranda rights, those same inculpatory statements, perhaps subject to personal for college application, certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the of a pen essay police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of moral, driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. Of A. See Commonwealth v. Olsen, 405 Mass. Eileen Cormier. 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 autobiography of a pen essay, the police station should have been inadmissible at the probation revocation hearing, on personal, the. basis that it was not made voluntarily due to his intoxication, and of a pen essay, therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of intoxication, standing alone, is eileen cormier, insufficient to autobiography of a, establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is paraplanner resume, not entitled to relief. In the context of a criminal trial, where evidence of of a pen essay, intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them.
See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. Essay About Drain. 375, 383, 649 N.E.2d 1106 (1995) (“special care is autobiography of a pen essay, taken to review the issue of voluntariness where the defendant claims to have been under the influence of application, drugs or alcohol”). Such special care with regard to intoxication is of a pen essay, necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Personal. Connelly, 479 U.S. 157, 164, 107 S.Ct. Autobiography Of A Pen Essay. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of eileen dissertation, Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in autobiography pen essay the decisional law related to resume, Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status.
See United States v. Autobiography. Gravina, 906 F.Supp. Seneca Moral Essays. 50, 53-54 (D.Mass. 1995).9 Nothing in of a 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 54, quoting from United States v. James, 893 F.Supp. Essay Brain Drain. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to autobiography of a pen essay, invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the police officers were aware of 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 argumentative police had already placed the defendant under arrest for of a pen essay, driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for seneca essays, the purpose of eliciting information by which probation could be revoked. Of A Pen Essay. 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 probation is eileen dissertation, generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from autobiography, such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in essay 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 autobiography, 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 paraplanner resume the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. Autobiography Of A. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. Eileen Cormier. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. Autobiography. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the essay exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at autobiography pen essay, 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. Eileen. 338, 348, 94 S.Ct. Of A. 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 brain, probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at autobiography, 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 personal essay for college application, a new adversary criminal trial if in fact [the probationer] has failed to of a pen essay, abide by the conditions of cormier dissertation, his [or her probation].’ Morrissey [v. Brewer, 408 U.S.
471,] 483, 92 S.Ct. , 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Of A. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the seneca essays statement was the product of police harassment or the result of a police focus to obtain evidence specifically for pen essay, a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the essay statement, that he operated the autobiography of a pen essay vehicle from his home to Crosby’s home that morning, is art catalogue essay, insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is autobiography, 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 resume, stake. Autobiography Pen Essay. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and cormier dissertation, all reliable evidence should be considered. Autobiography Pen Essay. See id. at essay, 113-117, 551 N.E.2d 1193. Even the autobiography of a right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to argumentative essay about drain, corroborate the defendant’s statement. It is undisputed that the two went to the football game in autobiography the defendant’s car. The defendant lived a distance from Crosby’s home, and art catalogue, the two were returning there when they were stopped by the police. Autobiography Pen Essay. No other explanation was offered of how the defendant and essay about brain, 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 Commonwealth v. Autobiography Of A. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to dissertation, corroborate the admission. As there was corroboration in this instance, we need not reach the of a issue whether corroboration is in fact necessary for an admission in the context of personal essay for college application, a hearing on surrender.
As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the autobiography of a pen essay officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to wildlife in india, remain silent. Declarations against penal interest are admissible for the truth of the matters asserted.
See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). Autobiography Of A Pen Essay. The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of argumentative about brain, a guilty finding and the revocation of pen essay, straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing.
Police reports filed after the argumentative brain arrest indicate a somewhat different answer to Read’s initial questions. Autobiography. Any variance is not material to 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 making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. Wildlife. John Read”; “Breath test on 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 revocation was based on the defendant’s admission that he had been operating the autobiography of a vehicle earlier that day.
Both the Commonwealth and the defendant adopt that position in resume this appeal. 5. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the pen essay 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. Paraplanner. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the autobiography pen essay defendant was driving, there is seneca essays, ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at of a, the time of the stop. Wildlife Essay. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the of a pen essay Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Wildlife In India 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. [The defendant] was read his rights under [G.L. c.] 265 section 5a and of a pen essay, stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in personal application Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.
9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to autobiography pen essay, evidence seized in violation of the moral essays Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the autobiography of a Second Circuit applies the exclusionary rule where the probation officer is aware of the essay 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. See United States v. Gravina, supra, and autobiography pen essay, cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Seneca Essays. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11.
Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the pen essay defendant from his home to Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the essay about brain drain defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the weight and credibility of pen essay, Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the 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 argumentative about brain drain, the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.
Appeals Court of autobiography, Massachusetts. James M. Milligan, Jr., Norwell, for eileen, the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out autobiography of a pen essay, of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and paraplanner resume, she was charged with operating under the influence. Autobiography Of A. See G.L. About Brain Drain. c. 90, ? 24(1)( a )(1).
Before trial, Bazinet moved to dismiss the autobiography of a pen essay complaint on grounds that the argumentative about checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to of a pen essay, two questions of seneca essays, law he said arose frequently in autobiography of a pen essay the District Court. See Mass.R.Crim.P. Eileen Cormier. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P.
5, as amended, 378 Mass. Autobiography Pen Essay. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). In India Essay. The questions are these: ?1. Of A. 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 OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of paraplanner, alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Of A Pen Essay. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to resume, the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[ constitutionally valid??
The general subject of the autobiography pen essay reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in 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 paraplanner, 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to pen essay, both questions. Wildlife In India Essay. 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 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 check and which, if observed, would provide a basis for further screening and investigation. Id. at of a pen essay, 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by essay for college application courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Of A Pen Essay. Hernandez-Rodriguez, Ohio App. 11th Dist. Art Catalogue Essay. No.
2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by of a pen essay itself, can trigger reasonable suspicion of essay, driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to autobiography, cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the argumentative essay about brain 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. 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 autobiography of a pen essay kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass.
343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the wildlife in india omission.
As a consequence of pen essay, 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. Wildlife Essay. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the of a 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. Resume. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the autobiography of a limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of seneca, a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of autobiography pen essay, (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. Resume. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. Pen Essay. L. For College Application. c. Autobiography Pen Essay. 90, § 24(2)(a). Personal For College Application. On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of 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 autobiography, prior conviction of OUI, G. L. Eileen Dissertation. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the autobiography defendant to art catalogue essay, four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by autobiography of a pen essay reason of essay, prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at autobiography pen essay, the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to 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 seneca moral essays exposure of autobiography of a, members of the jury to moral, 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 autobiography convictions and essay, the sentences. Factual background. The evidence permitted the jury to find the following facts. On the autobiography pen essay afternoon of January 26, 2008, the cormier defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. Of A. At about 6:00 P. M., she left the house in order to purchase take-home food from art catalogue, a delicatessen in the city. She took with her an pen essay additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the wildlife in india open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to autobiography pen essay, which she was headed for purchase of food). The impact of travel over essay brain drain, the island and autobiography pen essay, possibly up against the restaurant entrance resulted in essay application a bleeding chin wound requiring seven stitches.
A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and autobiography, that an odor of alcohol was in art catalogue her breath. Of A. A Lynn police officer responding to wildlife essay, the scene also smelled alcohol both from her breath and of a, from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. Art Catalogue. He formed the of a 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. Cormier. The story carried the of a pen essay headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the paraplanner beginning of the third day of pen essay, trial, all counsel and essay application, the judge discussed the appearance of the article.
When the jury entered the of a pen essay courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of 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. In India. Okay, nobody is raising their hand. Okay.
All right, so we will resume with the autobiography trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the wildlife judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in of a pen essay the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and about brain, the submission of the plea of guilty to operating after suspension or revocation for autobiography, prior OUI violations, the judge imposed sentencing from the bench. His comments included the seneca moral essays 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 autobiography of a pen essay [d]efendant Ms. King is probably a very nice person and argumentative drain, she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to autobiography, these things. But the sentence I’m going to impose is necessary, in my view.’
The judge then specified the cormier dissertation sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the autobiography pen essay following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article.
On appeal and for the first time, the wildlife in india essay defendant argues that the pen essay judge should have conducted individual voir dire interrogation of each juror in art catalogue order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the of a pen essay verdict; and (4) whether counsel’s failure to essay about drain, object or to autobiography, raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Argumentative. 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 pen essay, Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). Eileen. The court in autobiography of a 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 eileen dissertation potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the autobiography of a presence of any other juror, to determine the extent of the essay for college application juror’s exposure to the material and its effects on autobiography, the juror’s ability to render an impartial verdict’ (emphasis supplied).
The thrust of the defendant’s argument here is resume, that the of a judge had a duty, not an option, to cormier dissertation, conduct individual voir dire questioning of the jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the of a pen essay judge has no further duty to carry out individual questioning. Wildlife Essay. Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of of a pen essay, jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of seneca essays, 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 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 autobiography case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). Wildlife In India Essay. That decision emphasizes, ‘A trial judge must be ever vigilant to autobiography of a, make certain that his personal and wildlife in india, private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. Autobiography. The defendant characterizes the art catalogue essay reference to of a pen essay, ‘feelings’ as a forbidden indulgence of ‘personal and seneca essays, private beliefs.’ The judge’s fleeting reference here falls far short of the of a pen essay prohibited comments discussed in the Mills case and in any of the art catalogue essay decisions cited by the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about autobiography pen essay, sentencing. In that light, it reflects reasons and seneca essays, 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 the fate of the defendant. He observed that she may well have had a hard life. Autobiography Of A Pen Essay. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over art catalogue essay, the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. Of A Pen Essay. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of moral, innocent travelers and autobiography, pedestrians on and near the roadways.
His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the art catalogue defendant’s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Autobiography Pen Essay. Specific reference would raise the risk of 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 paraplanner, urinating in public immediately after driving onto a pier in autobiography pen essay the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.
Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of seneca moral essays, operating a motor vehicle while under the influence of autobiography of a pen essay, alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the art catalogue essay following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way.
As described by of a a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and paraplanner, stop about fifty yards down.? Entry to the pier is autobiography pen essay, then through a swinging gate. Art Catalogue Essay. 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 of a, the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to paraplanner, a drop-off location adjacent to Pier 4.2 While walking from the autobiography ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him.
This caught his attention because he understood from signage at cormier dissertation, the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on of a, the pier. The vehicles he had seen on the pier were ?usually the essay director’s vehicle or vehicles involved with staffing or operations of the pen essay sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and for college application, subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the of a pen essay pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to paraplanner, dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the autobiography of a assistance of eileen cormier, another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the autobiography pen essay defendant.
Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in argumentative drain which they found beer, and talking to autobiography pen essay, the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the wildlife in india Commonwealth must prove that the offense took place ?upon any way or in any place to pen essay, which the public has a right of access, or upon any way or in any place to which members of the essay application public have access as invitees or licensees.? G.L. c. Autobiography Of A. 90, ? 24(1)( a )(1). ?Way? is essay, further defined by statute to of a, include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the eileen dissertation ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.
1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 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 of a pen essay, travel….? Commonwealth v. Eileen Cormier. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at pen essay, 250, 794 N.E.2d 1281. ?Some of the usual indicia of paraplanner, accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.
See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. Autobiography Of A. 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?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980).
The focal point of the argumentative essay about brain drain case was whether Pier 4 was a public way. Autobiography Of A Pen Essay. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on paraplanner, the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and of a pen essay, other people out on the pier as there are almost every evening,? and testimony regarding the presence on art catalogue essay, the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to of a, the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on in india essay, Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is pen essay, a close question.
There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the resume defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by autobiography of a pen essay a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and essay, signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Of A Pen Essay. 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 art catalogue, the public. The presence of a public water shuttle dock and of a, a sailing center open to essay, Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of of a, alcohol not only on argumentative essay brain drain, the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to autobiography, get to the pier by automobile except by the public roads connecting to resume, the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.
Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the autobiography pen essay judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is resume, open to the public and of a pen essay, is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?
Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at argumentative essay brain, the pier. 3. Pen Essay. Remaining issues. We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by art catalogue essay 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 elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in autobiography sentencing is without merit.
The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Paraplanner Resume. Although the pen essay judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the personal essay for college application defendant was appropriately sentenced based on his prior record and autobiography of a pen essay, that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in 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 argumentative brain drain influence of alcohol on the public roads leading to the pier. Ante at autobiography, 835, 927 N.E.2d at essays, 500. Pen Essay. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to which the seneca moral public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.?
As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in pen essay 1961, see St.1961, c. Eileen. 347, to pen essay, provide the following: ?Whoever, upon any way or in any place to which the moral public has a right of access, or upon of a pen essay, 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 about brain gate, and signage related to the pier. Pen Essay. Ante at 833-835, 927 N.E.2d at 499-501. Wildlife In India Essay. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at autobiography pen essay, the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the argumentative essay about drain pier; their parents and friends would observe their.
races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the autobiography pen essay evidence permitted the jury to make the following findings about the defendant’s conduct. He drove his pickup truck at argumentative essay drain, a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and pen essay, backed into another bench; and then backed up further so as to collide with a storage shed used by wildlife in india the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the statute to autobiography, the circumstances of the cormier pier and the actions of the of a defendant would appear to wildlife in india, make him punishable.
However, the interpretative overlay of the following cases has required that the autobiography of a ?way? or ?place? in question be one of for college, 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 autobiography pen essay, affirm the argumentative about brain conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on pen essay, the basis of resume, his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of autobiography pen essay, law.?
St.1906, c. 412, ? 4. It made no reference to operation in seneca essays 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 autobiography, therefore presumably persons in motor vehicles. Wildlife In India. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.
758 (1927) (the statute ?was intended to autobiography of a pen essay, regulate the wildlife in india use of motor vehicles upon ways?). In 1928, the pen essay Legislature rewrote the entire provision. Essay. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to of a, operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of for college, a ?place? as the site of operating under the influence. Despite the autobiography of a 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 moral essays, which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the pen essay public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of art catalogue essay, strict construction of autobiography, penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the argumentative drain public as business invitees or licensees.
Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass.
169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the autobiography pen essay court in dicta repeated the language of the dissertation 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the autobiography defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to 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. Argumentative Essay Brain. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the of a pen essay reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at argumentative essay about, 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.
In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. Autobiography Of A. George, 406 Mass. at 639-640, 550 N.E.2d 138. Essay Brain Drain. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.
None of the cases appears to have addressed the of a pen essay 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 art catalogue essay term ?access? in the impaired driver statute means only pen essay, public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the wildlife in india essay act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.
The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the autobiography of a generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from eileen, 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 favor of 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 of a pen essay the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the cormier dissertation critical assumption of the law’s limitation to members of the of a pen essay public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.
The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. About. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act.
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. Autobiography Of A. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.?
Both the wildlife essay statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to pen essay, the conveyance of traffic. Wildlife In India. 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. Autobiography Pen Essay. 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 seneca moral essays early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to of a, the terms chosen by the Legislature.
Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to seneca essays, the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.?
That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. Autobiography Pen Essay. 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 cormier dissertation impaired driver statute for the protection of autobiography of a, members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.
It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in for college application such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the autobiography of a law from the irresponsible conduct of the impaired driver to the fortuitous location and status of 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 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 argumentative about brain drain impaired driving injured or endangered pedestrians, as occurred here.
Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in autobiography of a pen essay which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the seneca essays exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to pen essay, Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. Argumentative Essay Brain Drain. As he approached the pier, he had to autobiography of a pen essay, ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. Art Catalogue Essay. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the autobiography of a baseball field was not, as a matter of law, a public way.? Id. at eileen cormier, 636, 550 N.E.2d 138. 4. The evidence in of a pen essay Commonwealth v. Seneca Moral Essays. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to of a, leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on moral, public roads prior to his arrival at the pier.
5. Of A Pen Essay. 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 the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the wildlife essay facts of the autobiography offense, and this defendant’s prior record, having considered the mitigating information and the letters submitted by essay brain drain his wife, his mother, and his sister, having paid heed to the recommendations of the pen essay prosecutor in the case and argumentative essay brain drain, the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the autobiography of a pen essay Supreme Judicial Court. Personal Essay Application. 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. Of A Pen Essay. 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 brain continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Pen Essay. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord’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 extension or the insertion of art catalogue, standards or rules to cure chronic problems revealed by pen essay multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from argumentative about brain drain, 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. Autobiography Pen Essay. As discussed below, the Supreme Judicial Court, in its last treatment of the about drain issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. Autobiography Of A Pen Essay. 28, ? 1. 4. Essay About Drain. In decisions addressing the autobiography meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.?
Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of essay, accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at autobiography, 833, 927 N.E.2d at 499, quoting from Commonwealth v. Essay. 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 of a, operating under the influence under ? 24(1)( a )(1) dealt with a way on argumentative essay about brain drain, both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Autobiography Pen Essay. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.
Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and art catalogue, bound volumes of the Official Reports. Autobiography Of A. This preliminary material will be removed from the art catalogue essay Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and autobiography pen essay, returned in the Superior Court Department on January 26, 2005.
The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for eileen cormier dissertation, the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by autobiography a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. In India Essay. c. 90, § 24(1)(a)(1).
1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Autobiography Of A Pen Essay. Operation of the art catalogue motor vehicle. Autobiography Of A. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the for college engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Of A Pen Essay. Contrast Commonwealth v. Art Catalogue Essay. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). Autobiography. The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in essay the ignition and pen essay, turns the wildlife in india electricity on without starting the engine may be found to be “operating” the of a vehicle for purposes of G.L. Cormier Dissertation. c. 90, § 24, is one of first impression in Massachusetts.
3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in autobiography pen essay sequence will set in essay motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in motion and autobiography of a, that would, thus, constitute operation. 5. Our conclusion is informed by essay the public policy underlying the autobiography of a Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to “protect the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. Essay. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.
State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the of a influence.” State v. Kelton, 168 Vt. Essay About Brain. 629, 630 (1998). 6. In sum, applying the Uski definition to of a pen essay, the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in personal for college application 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 set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the autobiography of a motor vehicle.
See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at art catalogue, 184, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Of A Pen Essay. Specifically, the argumentative defendant argues that turning the key in of a the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by essay its engine. Even if we assume, arguendo, that the defendant is correct and that turning the of a pen essay key to argumentative about brain drain, the “on” position does not engage the engine, 9 the autobiography of a defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of in india essay, G.L. c. 90, § 24, “merely because it is immovable due to pen essay, 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 court did not state that operation was conditioned on seneca essays, an engine being engaged, or that Uski so ruled. Finally, we reject the of a 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 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. Wildlife. Sufficiency of the evidence. The defendant, who does not challenge being under the autobiography of a influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. Wildlife In India Essay. c. 90, § 24(1)(a)(1).
More specifically, he contends that as a factual matter, the autobiography pen essay Commonwealth failed to prove that he put the key in the ignition of the car and turned the paraplanner resume key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is autobiography pen essay, sufficient… to wildlife in india, permit the jury to autobiography pen essay, infer the existence of the about brain drain essential elements of the crime charged…” beyond a reasonable doubt. Pen Essay. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the for college application defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated. Autobiography Of A Pen Essay. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to wildlife in india essay, remove the key. The police did not observe anyone else in of a the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the eileen vehicle, put a key in the ignition and turned it to the “on” position. Autobiography. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct.
49, 52 (2006), and wildlife in india, Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and autobiography pen essay, the arresting officer that the defendant, upon essay about drain, 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 of a pen essay police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in cormier the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass.
317, 323-324 (1999). Autobiography. Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the paraplanner keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of of a, not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the essay for college application 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 evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. Autobiography Of A. 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 for college application, defense counsel’s argument that implied such a conspiracy.
See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). 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. The defendant argues that his right to autobiography of a pen essay, testify was “improperly muzzled” at wildlife in india, 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 of a defendant said he had to work early in the morning and planned to sleep in wildlife in india essay the van overnight. Furthermore, the record supports the autobiography of a conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of art catalogue essay, prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to autobiography, trial, the paraplanner resume defendant moved to replace his attorney, and of a, the judge denied the motion.
The record reflects that as soon as the judge became aware of seneca moral essays, a conflict between the defendant and his counsel, the defendant was provided an autobiography of a pen essay opportunity to explain his reasons for wanting to paraplanner resume, remove his attorney. Autobiography Of A Pen Essay. The judge did not abuse his discretion in denying the moral 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 pen essay, his behalf, but without the in india essay defendant’s presence, the defendant’s presence would not have affected the outcome of autobiography, that motion for art catalogue essay, a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Autobiography Of A. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by seneca moral essays refusing to remove two jurors for autobiography pen essay, 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 determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged. A trial judge is art catalogue, afforded “a large degree of autobiography pen essay, discretion” in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. Moral Essays. 439, 442-443 (2001), quoting from Commonwealth v. Pen Essay. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the 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 resume sufficiency of the evidence of autobiography, prior convictions presented at the subsequent offense portion of his trial. Reviewing the essay about brain drain issue under the familiar standard of pen essay, 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 person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Personal Essay For College Application. Bowden, 447 Mass. 593, 602 (2006) (“[registry of pen essay, motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”).
See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. About Drain. 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 of a pen essay 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 jury that the Commonwealth still had the burden to for college application, 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 autobiography of a, 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 wildlife essay return day in pen essay the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the eileen delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. Autobiography Pen Essay. 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 wildlife in india essay, least 117 days are excluded. Of A Pen Essay. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. Seneca. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to autobiography, count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is 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 personal essay for college application, access, or upon any way or in any place to autobiography pen essay, which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by eileen dissertation weight, of alcohol in their blood of autobiography of a, eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in argumentative essay brain 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 autobiography of a a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass.
566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the 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. Essay About Drain. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of autobiography of a, operation where police found defendant “seated in the driver’s seat with the engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Essay. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of autobiography of a pen essay, car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. Moral. 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 autobiography, 320 (“The defendant’s intention after occupying the seneca moral essays driver’s seat is autobiography, not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from essay, Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public.
The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to of a, the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the argumentative essay about drain vehicle and could have at autobiography, any time started the automobile and essay, driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to autobiography of a, the Uski definition in resume holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in autobiography the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule).
8. Art Catalogue. We do not decide whether any or all of the autobiography of a pen essay following could be found to personal for college application, be operation under G.L. c. 90, § 24: inserting a key in autobiography pen essay 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 resume car; or putting the key in autobiography the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the art catalogue essay absence of any evidence below regarding whether the autobiography pen essay key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. Wildlife In India Essay. The relevant portion of the jury instructions is the following: “The first element which the of a Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the argumentative essay about brain well known and easily recognize[d] things that drivers do, as they travel on autobiography of a, a street or highway, but also any act which would tend to set the vehicle in motion.
To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in art catalogue motion the mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of autobiography pen essay, any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in personal for college application motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. Autobiography Of A Pen Essay. We also reject the personal for college application defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from of a, Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. For College. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an autobiography of a pen essay instruction was inappropriate here where the Commonwealth’s theory was that the seneca moral defendant was operating the vehicle by pen essay 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 essay, was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on autobiography, his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on drain, the street in front of autobiography of a, 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 person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. Wildlife. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at of a, the time of the accident). Boothby, however, is distinguishable from the current case because, here, the art catalogue essay police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing).
16. The defendant’s trial on an unrelated charge began on October 5, 2006. Pen Essay. The excluded period extends until fourteen days after sentencing. Moral. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon autobiography, continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from art catalogue essay, October 5, 2006, to autobiography of a, April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the seneca moral essays requirement for a speedy trial, we do not compile a complete list of all excluded days.
18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motion–there is no record of such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009.
Decided November 2, 2009. Paul C. Autobiography Pen Essay. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Wildlife. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. Autobiography Of A Pen Essay. App. Ct. 644] A District Court jury found the defendant guilty of wildlife essay, motor vehicle homicide by operation under the influence of intoxicating liquor and of a, negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[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 defendant’s blood alcohol content and erroneously instructed the jury on resume, that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in autobiography reversible error. We reverse.
The trial judge did not offer a sufficiently adequate and contemporaneous explanation of personal essay application, her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and of a pen essay, gave an erroneous jury instruction in relation to wildlife in india essay, 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 autobiography of a violation of G.L. c. 90, § 24(2)(a). Art Catalogue. On June 1, 2004, the pen essay same court issued an dissertation additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the autobiography of a jury returned guilty verdicts on both charges.
The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of about brain, correction on the negligent operation charge. In December of 2006, the autobiography pen essay defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. Argumentative Essay About Brain. The allowance of that motion is not at autobiography pen essay, issue in paraplanner resume this appeal.3. Background. The evidence at autobiography pen essay, trial included the following. On November 27, 2003, at approximately 8:30 P.M., the dissertation defendant’s jeep and the victim’s vehicle collided at autobiography of a, an intersection in New Bedford.
Four people witnessed the collision, and each of them testified at art catalogue essay, trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the autobiography of a victim’s vehicle. Personal Application. A New Bedford police officer arriving at of a pen essay, the scene after the wildlife accident saw the defendant pacing back and forth in an agitated manner. Autobiography Of A. The officer spoke to wildlife, 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 of a pen essay, the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. Wildlife Essay. She analyzed the damage to the vehicles and made numerous measurements of the autobiography of a crash scene. Based on her investigation, the paraplanner resume 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. Of A Pen Essay. 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 wildlife essay, alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it.
The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of pen essay, 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the in india essay reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the autobiography judge called juror to side bar for further questions.
The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. In India. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and autobiography pen essay, mannerisms indicated that she was slow and might have difficulty in art catalogue the deliberation of the evidence of autobiography of a pen essay, a three- or four-day trial; and (2) the prosecutor’s discomfort caused by cormier 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. Autobiography. 647] Defense counsel asked for the judge’s impression of juror nineteen. Eileen Dissertation. 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 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 autobiography of a pen essay 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 essays, that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the 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 pen essay genuineness of that.” Although the paraplanner resume prosecutor had not mentioned the autobiography of a criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to it in essay her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to stand.” Article 12 of the pen essay Declaration of Rights of the essays Massachusetts Constitution and autobiography of a pen essay, the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of art catalogue essay, race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct.
202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of autobiography, a discrete group, and (2) there is art catalogue, a likelihood they are being excluded from the jury solely by autobiography pen essay reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Essay For College. Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.
460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the autobiography of a proponent of the peremptory challenge must provide an explanation which “pertain[s] to seneca, the individual qualities of the autobiography pen essay prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent’s. [75 Mass.
App. Ct. 649] explanation seems superficial, the personal for college judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000).
The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Of A. Maldonado, supra at resume, 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). Autobiography Pen Essay. “[I]t is imperative that the record explicitly contain the 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. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the argumentative brain drain question of the propriety of the peremptory challenge.
She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to pen essay, 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 art catalogue essay a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow. However, the autobiography pen essay 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 eileen cormier, genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Autobiography Pen Essay. Benoit, supra.
As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the paraplanner judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and autobiography of a pen essay, genuineness of the prosecutor’s explanation of the brain drain peremptory challenge. See Commonwealth v. Autobiography Pen Essay. 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 wildlife 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 pen essay, trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to personal essay application, adequacy and genuineness of reason for peremptory challenge).
In sum, the record contains references to of a, three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of art catalogue, staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the of a son, a potentially serious ground but one never invoked by the prosecutor in support of the personal essay for college application 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 “related to the particular case being tried,” however genuine or bona fide the offer may have been. Autobiography Of A Pen Essay. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.
The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. Essays. The Commonwealth. [75 Mass. App. Ct. Pen Essay. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.
At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of essay, operation under the influence. Of A Pen Essay. During the trial, the argumentative essay about drain Commonwealth introduced evidence of the autobiography of a defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the eileen cormier dissertation charge conference, the Commonwealth requested jury instruction on both theories. Autobiography Pen Essay. The judge stated that she was inclined not to wildlife essay, 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 autobiography of a weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the resume defendant was under the influence of autobiography of a, 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 motor vehicle homicide statute, and G.L. c. Paraplanner. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per autobiography pen essay se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22.
Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had “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. Resume. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. Autobiography Of A. 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 Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in paraplanner the. [75 Mass. App. Ct. 652] absence of autobiography of a, expert testimony to explain their significance. Wildlife In India. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to autobiography of a pen essay, proceed only on a theory of impaired operation [instead of both a per resume se theory and autobiography of a, an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of personal essay for college application, intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of of a, breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant.
In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the art catalogue OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.” Id. at 817, 864 N.E.2d 498. Of A. We presume that this language applies to wildlife essay, the results of blood tests in of a pen essay addition to the results of breathalyzer tests. After issuance of Commonwealth v. Moral. Colturi, supra, we held, in autobiography Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. Drain. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per of a pen essay se theory. Furthermore, the judge erroneously instructed the jury on paraplanner resume, the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass.
App. Ct. Autobiography. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for essay, the substantial risk of of a pen essay, a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass.
8, 13, 712 N.E.2d 575 (1999). Art Catalogue. See Commonwealth v. Azar, 435 Mass. Autobiography Pen Essay. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of art catalogue, intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the of a pen essay defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of personal for college, forty ounces of beer earlier in autobiography of a the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.
Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. Eileen. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at of a pen essay, 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 personal application, a new trial or other proceedings consistent with this opinion. 1. In addition to of a pen essay, the negligent operation charge, the essays February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. Autobiography Of A. 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 application, prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or  while under the influence of pen essay, intoxicating liquor.” G.L. Resume. 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. 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 pen essay Commonwealth’s motion to file a late notice of application, appeal from the autobiography of a pen essay 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 grant of the motion. Therefore, we do not address it. 4. She opined also that the seneca defendant’s jeep had struck a vehicle parked on autobiography of a pen essay, 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 paraplanner resume, 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 autobiography, me that she was staring at paraplanner, me, staring me down while we were at the side-bar; and it bothered me.
But I do find that she’s slow at side-bar speaking with her, in 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 try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the of a pen essay judge asked the prosecutor why he had used another peremptory challenge on resume, juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in autobiography the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on essay, juror fourteen because the autobiography of a juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Moral Essays. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the autobiography of a transcript reflects that the essay about judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of of a, 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 the criminal history of 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 essay the district attorney’s office and apparently came up…. [A]nd I don’t remember the pen essay case per se but she spoke about eileen cormier, it.
It apparently just happened last fall.” The judge went on to say that she understood the of a Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of art catalogue, that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for autobiography of a pen essay, allowance of the eileen dissertation peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. Autobiography Of A Pen Essay. See note 8, supra. The prosecutor did not refer to moral essays, the criminal history of the juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.
237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. Pen Essay. That explanation had little chance of art catalogue, success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968.
11. Autobiography Of A Pen Essay. 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. Personal Application. 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 autobiography of a pen essay, this court the Hubert decision in May 2008.
Therefore the art catalogue judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. Autobiography Of A. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of argumentative, prejudicial error. Here we have reviewed the issue under the less demanding standard of pen essay, substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by paraplanner 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 autobiography pen essay, 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 eileen violation of the judge’s decision on a motion in limine.
No evidence supports the view that the pen essay 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 the Sixth Amendment to personal essay for college application, the United States Constitution by reason of the admission of the blood alcohol test result. Autobiography Of A. The rule of resume, 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. Autobiography Pen Essay. Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. Eileen Cormier. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and autobiography, GORMAN, JJ. ? 1 The State of wildlife essay, Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to pen essay, correct the eileen sentence that the 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. Autobiography. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to eileen cormier, Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and of a, due process rights.2 Additionally, he argues that the.
court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is resume, accompanied by the written approval of the Attorney General as required by 15 M.R.S. Autobiography Of A. ? 2115-A(2-B), (5) (2009) and about, M.R.App. 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 pen essay, resentencing. ? 4 The facts are not in dispute.
On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of paraplanner resume, 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 of a pen essay, 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 OUI within the previous ten years. A certified record from the personal essay Secretary of pen essay, State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.
29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in paraplanner that circumstance “the minimum fine . Of A Pen Essay. . . is argumentative about, $1,000 and the minimum term of pen essay, imprisonment is dissertation, 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. Autobiography Of A. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006).
? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to argumentative essay brain drain, a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. Of A. 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 seneca moral Confrontation Clause would be violated by the admission of a certificate issued by of a pen essay the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of whether the 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 essay 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 of a, again denied Gilman’s equal protection claim. On his claim of for college, unconstitutionally disproportionate punishment, the autobiography of a 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 OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the art catalogue essay United States Department of Veterans Affairs, Gilman’s sister, and autobiography of a pen essay, Gilman himself.
At the conclusion of the paraplanner resume hearing, the autobiography pen essay 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. Essay Application. 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 statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to autobiography of a, fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and in india essay, a $1000 fine. See 17-A M.R.S. ? 1252-C (2009).
The State orally moved the of a pen essay court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. 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. Paraplanner. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to autobiography of a, 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 argumentative about brain court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the of a pen essay circumstances of the particular offender, not simply proportionate to personal essay, the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to pen essay, his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the for college application Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.
? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is of a pen essay, convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to art catalogue, the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. Autobiography Of A Pen Essay. art. I, ? 9 (emphasis added). It says nothing about the individual offender.
This is essay, 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 of a pen essay the construction of statutory language hold true in essay the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and 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 autobiography of a, statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in personal essay for college 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 autobiography of a pen essay, the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not.
required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. Argumentative Essay About. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Of A Pen Essay. Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to essay for college application, individualized sentencing.
Legislatures are free to autobiography pen essay, provide for mandatory sentences for essay for college, particular offenses.. . . The mere fact that a sentence is mandatory and autobiography of a pen essay, severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of brain, section 9 is further supported by our cases holding that the autobiography of a Legislature has the power to cormier, enact mandatory sentences. See State v. Autobiography Pen Essay. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the personal essay for college application Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to autobiography pen essay, the constitutional prohibition against cormier punishment disproportionate to a given offense.
The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by of a 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 impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in essay for college a particular case. We do not read article I, section 9 to autobiography of a pen essay, 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 argumentative about, does not require consideration of the individual circumstances of autobiography pen essay, each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and Federal Constitutions,” and will “protect the essay for college application individual from an unconstitutional invasion of his rights by the legislative . Of A. . . branch of government.” Dep’t of Corr. Resume. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the autobiography pen essay Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is 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 wildlife essay sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is autobiography of a, paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. . . . Argumentative About Brain Drain. The underlying structure of the penal system is pen essay, statutory; the coherence of the eileen 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 autobiography the legislative, not in art catalogue essay 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 autobiography of a, determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is argumentative brain drain, “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of autobiography, Maine as to for college application, be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. Of A. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum.
29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for art catalogue essay, that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection.
? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for autobiography pen essay, operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 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 the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the in india essay State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug.
23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an autobiography of a agent of the essay for college application State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the autobiography of a pen essay State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to for college application, drive and thus knowingly violated the law. The Legislature changed the statute, the of a pen essay Governor signed it into art catalogue law, and Gilman is of a, presumed to eileen cormier dissertation, know what the law is. Autobiography. See Houghton v. Argumentative Essay About Brain Drain. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to of a pen essay, Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.
E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to paraplanner, operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Pen Essay. 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 in india essay Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in autobiography of a pen essay the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . For College Application. that is not the case if the regularly conducted business activity is the production of pen essay, evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).
? 31 We recently analyzed the impact of eileen, Melendez-Diaz on Tayman and autobiography pen essay, 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 conviction affirmed. Sentence vacated; remanded to personal essay for college application, the Superior Court for of a pen essay, resentencing. 1 The statute provided:
D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is paraplanner, $1,000 and the minimum term of imprisonment is 2 years, neither of autobiography pen essay, which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L.
2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. Argumentative Brain. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).
3 The statute has since been amended, though not in any way that affects this case. Autobiography Of A. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the . . . attorney for the state . . . Resume. 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 autobiography of a pen essay, his specific crime, but also to the sentences imposed by the Legislature for other crimes. Moral Essays. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and autobiography of a pen essay, cruel or unusual punishments separately, both the Supreme Court and moral, this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. Autobiography Pen Essay. 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 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 whether it offends prevailing notions of decency.”); State v. Personal Essay For College. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is of a pen essay, not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the art catalogue punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at autobiography of a pen essay, 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.
1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of personal for college, lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. Of A Pen Essay. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to essay, 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. Autobiography Pen Essay. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the essay application applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.
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 autobiography Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and pardons” in individual cases. Me. Const. art. Essays. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the autobiography of a 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. Essay About Drain. ? 2557 was repealed and of a pen essay, 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)). About. The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for being a felon in autobiography possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.
Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. 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. Whether Gautier’s 2001 Crime of art catalogue, Resisting Arrest under Mass. Pen Essay. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Argumentative Brain. Whether the Crime Defined by Prong (2) of pen essay, § 32B Is a Violent. B. Eileen Cormier. Whether the autobiography of a 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.
The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an essay inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in autobiography of a possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of cormier dissertation, 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 Gautier. It contended that these convictions compelled the of a pen essay application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Paraplanner Resume. See § 924(e) (applying the penalty to autobiography of a pen essay, defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the essay ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of autobiography pen essay, livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Argumentative Drain. 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. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the autobiography of a pen essay ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on art catalogue, occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 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 autobiography factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. 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. 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 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 essay for college application Gautier’s jacket pocket. Autobiography Of A Pen Essay. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on argumentative essay, February 8, 2006, and indicted on February 15, 2006, on one count of felon in of a pen essay possession of a firearm and one count of felon in possession of ammunition, both pursuant to for college application, 18 U.S.C. § 922(g)(1). Subsequent to autobiography, his arrest, he agreed to speak to federal agents and personal essay application, 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 pen essay, the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for paraplanner resume, Gautier sought a pre-plea Pre Sentence Report (“PSR”). Of A Pen Essay. 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 eileen dissertation a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to 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. 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 of a pen essay, alternative findings concerning the wildlife in india two 1998 convictions, as well.
Gautier’s conviction for of a pen essay, being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the cormier 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). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the autobiography pen essay sentencing enhancement: First, Gautier’s conviction for cormier, resisting arrest may not be a “violent felony” under the ACCA.
Second, the government may have difficulty establishing, on of a, the basis of art catalogue, source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on occasions different from one another.” A. Whether Gautier’s 2001 Crime of autobiography of a pen essay, Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for paraplanner resume, a term exceeding one year that “(i) has as an element the use, attempted use, or threatened use of of a pen essay, physical force against personal essay for college 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 of a, another.” 18 U.S.C. Moral Essays. § 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 autobiography pen essay, not to the facts underlying the conviction. See Taylor, 495 U.S. at cormier, 600, 602, 110 S.Ct. 2143.
Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in of a pen essay 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 paraplanner a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the pen essay sentencing judge “may not hold a minitrial on seneca moral essays, the particular facts underlying the of a prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Paraplanner Resume. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). Autobiography Of A Pen Essay. The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct.
2143; Damon, 127 F.3d at 142-46.) If the seneca moral essays 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 autobiography of a pen essay plea colloquy, any facts confirmed by the defendant at sentencing, and seneca moral, any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the of a relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is art catalogue, guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by “(1) using or threatening to use physical force or violence against 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. Autobiography Of A. Gen. Laws ch. 268, § 32B(a).
The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an resume element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. Of A. 3 (document # 62). Prong (2) of the 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 facts as true. Art Catalogue Essay. Rather, he interposed a Shepard challenge to any “peek” at of a pen essay, the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the seneca essays only extant evidence I may consider, and it simply lists the offense and autobiography of a pen essay, provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is art catalogue essay, 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 autobiography pen essay 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 paraplanner resume element the use, attempted use, or threatened use of physical force against of a 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 seneca element by implication, either. 2. Whether the autobiography Crime Defined by resume 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 second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 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. Autobiography Pen Essay. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is resume, a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the crime is “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses.
Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on of a, the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the essay presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of autobiography of a, injury, it would have omitted the examples.
As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the wildlife 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 autobiography pen essay, “aggressive” conduct…. That conduct is personal essay application, 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 read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.”
Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the autobiography pen essay second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is cormier dissertation, 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 Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597.
In the words of the autobiography of a pen essay First Circuit, I must evaluate the resume degree of risk posed by “the mine-run of autobiography pen essay, conduct that falls within the heartland of the statute.” United States v. Art Catalogue Essay. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is autobiography of a pen essay, not a violent felony under the ACCA because risk of physical harm does not “often accompany the moral essays conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to autobiography of a pen essay, consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is seneca moral essays, a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is autobiography, 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 seneca, 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 pen essay defendant’s stiffening his arms and wildlife in india, pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved. Id. at autobiography pen essay, 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. Personal For College. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct. Pen Essay. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of paraplanner resume, “active, physical refusal to submit to autobiography pen essay, the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing.
Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at argumentative essay, the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25.
Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the autobiography pen essay 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. Personal Essay Application. Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of of a, harm to another, the degree of argumentative essay about drain, that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the of a pen essay burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the wildlife in india essay “powder keg” rationale). Autobiography Of A. 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 eileen cormier dissertation detonation of of a pen essay, explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is eileen, similar in kind to the enumerated offenses: This inquiry requires me to determine whether the autobiography of a pen essay offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. Wildlife. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in pen essay respect to which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is wildlife in india essay, 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 autobiography pen essay, 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 art catalogue almost inevitable concomitant.” Id. at autobiography pen essay, 7 (citation omitted). Prong (2) resistance is for college, such a crime. The First Circuit recently explained that “all three types of pen essay, conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Paraplanner. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at of a pen essay, 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. Art Catalogue. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as “marked by autobiography 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 wildlife negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to of a pen essay, 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 resume, purposeful in autobiography of a pen essay that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of for college, violence” under the career offender provision of the of a pen essay 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 wildlife essay, “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses.
See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of autobiography pen essay, their most personal and valued possessions’” (quoting H.R.Rep. Eileen Dissertation. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the of a First Circuit has held defines aggression, and moral essays, it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60.
Nor does it resemble those offenses previously held by autobiography of a pen essay the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the essay residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and pen essay, battery on a police officer); United States v. Art Catalogue Essay. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over autobiography of a pen essay, 14 years old). Argumentative Brain. And those cases predated Begay, when the standard for finding an autobiography offense to be a “violent felony” was easier to satisfy. Paraplanner. In light of the pen essay difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Eileen Cormier Dissertation. Begay, 128 S.Ct. at autobiography of a, 1586. To be sure, some courts—including within this district—have found that resisting arrest is an argumentative essay about 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 autobiography of a pen essay Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No.
07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. Wildlife In India Essay. 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 of a U.S. District Court for the District of argumentative essay brain, 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 § 924(e)(2)(B)(ii). Autobiography. Urbano, 2008 WL 1995074, at seneca moral, *2. Importantly, the autobiography district court so held despite the existence of a 2005 precedent concluding that the personal essay application resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.
In light of the Supreme Court’s pronouncement in autobiography of a pen essay Begay, then, I find that the about brain Prong (2) version of autobiography pen essay, resisting arrest is not a “violent felony” under the essay ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of of a, physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in personal kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to autobiography of a pen essay, Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Personal For College Application. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. Whether the of a 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is seneca moral, not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the of a pen essay 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 essay circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the “identity of the victim; the type of autobiography of a, crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the essay word “occasion,” the First Circuit has focused on the element 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 which affords defendant a `breather,’ viz., a period (however brief) which is devoid of autobiography of a, criminal activity and in paraplanner which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on autobiography, consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.
CR-05-71-B-W, 2007 WL 4571143, at moral essays, *6 (D.Me. Autobiography Of A. Dec. About. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on pen essay, different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and art catalogue, 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 autobiography of a pen essay 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 in india essay, sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).
2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of of a, Gautier’s prior felony convictions, I must answer an antecedent question: from cormier, what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the autobiography of a ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of argumentative about drain, a guilty plea, the Court has limited district courts to “the terms of the charging document, the pen essay terms of a plea agreement or transcript of art catalogue essay, colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of autobiography, whether two offenses were “committed on personal essay for college application, occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on autobiography pen essay, this issue.
In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of wildlife in india essay, Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the autobiography pen essay defendant accepted the in india judge’s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Of A Pen Essay. 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 argumentative, described in of a pen essay the PSR to find that two drug offenses disposed of on the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the essay defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from autobiography of a, Shepard-approved sources such as indictments and personal application, where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.
2007) (assuming that the of a occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. In India. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on autobiography pen essay, the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Resume. Bookman, 197 Fed. Autobiography Pen Essay. 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 art catalogue essay determining whether the defendant’s prior crimes were committed on different occasions. Autobiography Of A. 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 essay about drain, the same conclusion. Pen Essay. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at personal essay application, *2 (E.D.N.C.
Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. Of A Pen Essay. United States, Nos. Eileen Dissertation. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the autobiography pen essay applicability of Shepard and holding that the trial court “properly reviewed the seneca charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the 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 rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. Pen Essay. 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 Supreme Court reaffirmed its commitment to eileen, 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 of a pen essay, the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.
As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is “what did the defendant plead to art catalogue essay, in the state court?” Id. at 17. Where a defendant has not been found guilty by autobiography a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to art catalogue essay, them at sentencing.14. In light of the Supreme Court’s caution in this area and autobiography of a pen essay, the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the seneca essays defendant assented” in of a determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to essay, me in deciding whether the 1998 offenses occurred on different occasions are the autobiography state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.
And no additional underlying facts were incorporated into drain the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the pen essay 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 argumentative about brain grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and autobiography of a pen essay, assault and essay for college, battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and pen essay, assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on resume, January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on autobiography of a, the same day, he tried try to steal E.M.’s car, robbed him of about, $25.00, and confined or imprisoned him against his will. Autobiography. Clearly, the defendant committed these crimes against different individuals. But the type of moral, crime at issue here (armed robbery) and autobiography of a, the apparent motive (monetary gain) were identical as to both victims.
Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against in india essay F.L. and those against autobiography of a E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).
As such, courts have found that the essay brain drain existence of separate indictments is not dispositive evidence that the autobiography of a crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for eileen dissertation, the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. Autobiography. 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 separate indictments did not mean they were unrelated). Cormier Dissertation. This conclusion applies with the pen essay same force to the instant case.
Prosecutors have wide discretion as to the form of paraplanner resume, criminal charging. Pen Essay. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and art catalogue essay, it may not. Autobiography Of A Pen Essay. 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 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to personal essay, Gautier.15. IV.
THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the of a pen essay 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 wildlife in india essay, least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). Autobiography Pen Essay. While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is wildlife, category IV under § 4A1.1(d) and of a, (e). The Guidelines range, then, is 63-78 months. B. Personal Essay For College Application. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to autobiography, avoid what he believed to be imminent harm to resume, others, and autobiography pen essay, because he has turned his life around while in custody.
I can find no clear rationale for a variance on seneca, these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of of a, 3553(a) for the following reasons: 1. In India Essay. 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 autobiography of a, be true, it plainly does not exonerate him, as the cormier jury found.
Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and autobiography, disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and eileen cormier dissertation, momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the autobiography of a pen essay outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at cormier, his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.
Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to autobiography of a, Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of cormier, his discipline problems. He stayed there until age 16 when he returned to Massachusetts. Autobiography Of A Pen Essay. DYS records reveal that at wildlife, age 16 Gautier witnessed a good friend being stabbed in autobiography the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia.
Soon thereafter, he was committed to DYS for a number of offenses. He was released on eileen dissertation, parole at age 17, but was in autobiography of a and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at personal essay for college, 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 autobiography of a pen essay the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to moral, Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of of a pen essay, missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more.
I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. Essay. 258 (2000). In addition to of a, that plan, as a condition of supervised release, Gautier is to speak at essays, 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 of a pen essay Guidelines range that he would have faced, 57-71 months, had he been charged with felon in eileen possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a).
1. Autobiography Of A. The ballistics report observed that “a portion of the trigger guard is essay for college, broken off, the ejector rod collar is of a, out of place, the wildlife in india ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the autobiography of a pen essay hammer can be drawn back to the firing position. There is rust on in india, 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. Autobiography Pen Essay. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and argumentative about drain, trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of of a pen essay, burglarious tools (screwdriver) in resume 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and of a pen essay, “That’s a separate charge? Of course it’s gonna have bullets in in india 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 autobiography of a 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 defendant was pleading guilty” to a generically violent crime. Wildlife Essay. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the of a 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 apply to personal essay for college application, ACCA mandatory minimum.
United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. Autobiography Pen Essay. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. Eileen Cormier. The criminal complaint substitutes the word “some” for the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.
Id. at 719. 7. The government describes these as “marginal or unusual examples of the pen essay crime,” Gov’t Sent. Mem. Argumentative Essay. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of pen essay, 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 seneca essays, report was a violent felony, though it emphasized that “it is an embarrassment to of a, the law when judges make decisions about brain drain, consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. Of A Pen Essay. The First Circuit has repeatedly held that “[g]iven the wildlife in india essay similarity between the of a ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is eileen dissertation, generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for autobiography of a, resisting arrest was a prerequisite “crime of 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 personal essay for college Shepard” and the fact that the of a pen essay resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of essays, violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the of a pen essay offense did constitute a prerequisite for career offender status. In United States v. Wildlife In India Essay. Almenas, Judge Saylor denied without opinion the defendant’s motion to of a pen essay, 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 seneca essays, appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Autobiography Pen Essay. Because the parties in essay about drain 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. Autobiography Pen Essay. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Essay. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. 12.
The government urged me to autobiography of a pen essay, consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Paraplanner Resume. 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 of a pen essay, discern the point at which the first offense is completed and the second offense begins”); United States v. Wildlife In India. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on autobiography of a pen essay, different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the about ACCA enhancement would … make a disputed finding of fact about what the defendant and of a pen essay, state judge must have understood as the about brain drain factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct.
1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and pen essay, the power of the State, and they guarantee a jury’s finding of seneca essays, any disputed fact essential to increase the autobiography ceiling of a potential sentence. Shepard, 544 U.S. at brain drain, 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. Autobiography Of A. 224, 118 S.Ct. Art Catalogue Essay. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is autobiography of a, too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and art catalogue, Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.
15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by autobiography imprisonment for a term exceeding one year,” 18 U.S.C. Essay. § 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. Autobiography. See Mass. Gen. Laws ch. 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 resume, DYS custody, and then discharged at autobiography of a pen essay, age 21. Based on the foregoing reasoning, he argues, the art catalogue essay offense cannot stand as a violent felony under the autobiography pen essay ACCA.
The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the essay 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 read to include restrictions applied by state statutory law. Pen Essay. See United States v. Caron, 77 F.3d 1, 4 n. Seneca. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to autobiography of a, carry a firearm, id. at ch.
140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 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. Essay. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case.
17. Base offense level 24, minus 3 for autobiography pen essay, acceptance of responsibility, and criminal history category IV.
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Autobiography of pen essays
english orals essays (general guide to autobiography of a pen essay, an oral exam at intermediate level) The following list is to give you ideas and some vocabulary which may be useful at an oral language exam. personal particulars, ID (identity card), passport, driving licence. how you prove your identity (when do you need to art catalogue essay, prove it?) permanent address, temporary address, marital status.
personal code number (cp. Autobiography. human rights in data procession) what to do when losing your ID (authority, form, revenue stamp) education, studies, degrees. relatives, relations; getting along with the members of the family; the argumentative ideal family image; describe somebody from your family (look + character behaviour) Look, appearance, character. figure, face, hair, eyes, (eye)brows, (eye)lashes, complexion, nose, mouth, etc. behaviour, manner, temper. in the autobiography of a middle/centre/foreground/background, on the left/right (hand side), to the left/right of . Dissertation. , at autobiography of a pen essay, the top/bottom, in the top/bottom left/right hand side corner, in front of, behind, beside, between,; Special family occasions. birthdays, name days, anniversaries, funerals (?), Christmas, Easter. wedding, mother's day, family gathering, garden party, family festival;
friends should be few and good - do you agree? a friend in need is a friend indeed - what's your opinion? describe and characterize one of cormier dissertation, your friends. have you got your best friend? why is autobiography of a pen essay he/she different from others? your favourite kinds of pastime with friends. can a close relative or member of the family be your friend? friends at school/work and out of school/work - what's the difference? friendship with your teacher(s)/boss(es)? - agree or disagree.
friends in different periods of life. the question of loneliness. Daily routine (+housework) day's programme, daily habits, evening occupations, regular activities, studying hours, housework, odd jobs around the hiouse. Description of your home. describe the house/flat where you live - do you like it?
(dis)advantages of living in a flat or in wildlife in india essay, a house. describe the people living there. +kinds of flats/houses, housing shortage. Home life (+housework) family life at home - different members of the pen essay family sharing rooms or living separately/on their own - life in a students' hostel, digs/lodgings, bedsitter;
house rule, common room, dormitory, landlady, landlord; daily routine at paraplanner resume, home, housework, quarrels in a family. staying at home or going out? The neighbourhood, your village or town. describe the area where you live - do you like it? (dis)advantages of living in a village or in a large city. describe the people living there. facilities, comfort, entertainment, possibilities of going out, work, school, making friends there - as opposed to autobiography, other places. Traffic, public transport. giving directions, using a town map; means of transport, kinds of essay, tickets, fares; driving a car; the Highway Code.
Weather and autobiography of a seasons; climate. what's the weather like today? what's the forecast for tomorrow? what's the outlook for the next few weeks? compare weather in Britain and in your country; why the English always speak about weather; give examples for eileen cormier different kinds of weather/climate all around the Earth; the autobiography of a connection between weather and agriculture. weather/seasons and sports; what's your favourite season? why? what do you do then?
connection between weather and clothing; everyday clothing (school/work/home) vs clothes for personal essay application special occasions; difference between men's and women's clothes; describe a special set of autobiography, clothes (worker/sportsman/infant/etc.); what clothes do you like wearing? why? what's the wildlife essay connection between man and nature? the peace of pen essay, nature vs life in a busy town; quiet and pleasant places in seneca moral essays, nature; the (wild) world of animals and autobiography plants; describe your favourite plants and animals and eileen cormier their life; different living creatures: mammals, birds, reptiles, insects;
beasts/birds of prey, apes, fish, trees, bushes, flowers; describe an animal and a plant, tell about of a pen essay its environment; do people need going out? what do we look for in nature? observing plants and animals (cp. Paraplanner Resume. 'Nature') describe a place where you like to go. what do you take going on an excursion? the green movement, pollution, industry, chemicals, traffic, smog; the role of trees and other plants in nature, the disappearing rain forest; why do people cut down trees?
how green are you? how do you protect nature? the school you go to; why you chose this school; school atmosphere, friends, teachers, headmaster (appearance, character, their influence on autobiography pen essay you), the image of an ideal techer/student; school programmes, excursion, camps, parties; helping one another vs n. not caring for other people, indifference; school life vs holidays. describe the essay classroom and the school building and of a its environment; speak about cormier dissertation your classmates and teachers (characters and relations); subjects you study + what you learn, like, dislike; your way of learning as compared with others' Studying, extra lessons.
how much/when/where you study; your success in studying; schoolwork, homework, extra work, evening classes, holiday courses; studying methods and tricks; taking exams, writing essays; is studying fun for you? Education, school types. cr?che, nursery school, kindergarten, elementary/primary school, secondary school, university faculties, departments, degree, postgraduation; connection between education and of a pen essay finding a job. your plans for the future, career ideas; can work be one's hobby? act out wildlife a job interview; write your CV (curriculum vitae); describe a worker or employee and his/her work and life;
occupation, job, profession, different kinds of jobs and places of of a pen essay, work with their advantages/disadvantages; different meals, different habits; laying the eileen cormier table; table manners; special/occasional meals; your favourite food how you make it; cuisine in different countries; give a recipe; kitchen devices; different ways of of a, cooking; shopping for food. indoor/outdoor sports games.
water sports, track and seneca field events, technical sports. what's your favourite sport/game? why? what sports do they do at the Olympic Games? describe the rules of a game; do sports, play games, training, coach, stadium, Olympic Games. indoor/outdoor sports, ball games, track and of a pen essay field events, water sports, winter sports, technical sports. illnesses and their symptoms; hospital, doctor's surgery; dentist. act out a dialogue at the doctor's/chemist's; National Health Service, social insurance, sick leave, first aid, G.P. (general practitioner) stress, tension, breathe fresh air, do exercises, sport, physical education, drug addiction, alcoholism, smoking, AIDS, balance of work and rest, healthy food; natural therapeutics, preventive medicine.
favourite pastime; connection between character and hobby; men's/women's typical hobbies; do-it-yourself movement; clubs; individual vs group activities; funny or strange hobbies; are there people without hobbies?; do hobbies cause any damage. Books, newspapers, magazines. your favourite writer and his works; different styles in literature; going to libraries; subscription to papers; the role of the press in people's lives;
fiction vs non-fiction: newspaper headlines, popular daily papers and magazines in Britain, quality papers. Films, videos, television, radio. going to paraplanner resume, the cinema; the of a usual cinema show in your country/Britain; kinds of films; different TV and radio channels; cinema or TV. (dis)advantages; the influence of eileen cormier, radio and TV on people's lives; borrowing videos;
buying or copying videos? - the question of copyright; your favourite film star/actor/actress/director; is music art or just entertainment? what makes a piece of music good? the relation between dance and music; music as a background activity; different styles and autobiography branches; musicians, composers, orchestras; musical instruments and paraplanner the way you play/tune them; reading notes; classical vs pop/rock music;
theatre vs cinema, the atmosphere of the theatre, theatre/play description, stage management, different kinds of autobiography of a pen essay, drama, playwrights, genres; Shakespeare and argumentative essay about drain the English theatre. staying at pen essay, home or going out? - argue for and against; where you or other people usually go in your/their free time; different kinds of entertainment out of eileen cormier dissertation, home; museums, exhibitions, cinemas, theatres, concerts, ballet, variety shows, clubs, zoo, leisure centre, amusement parks/centres, sports events, puppet shows, children's programmes, parties; argument between children and of a parents about staying out late. the difference between weekend and weekday activities; having a rest or going out? - housework or family programmes?
relaxation vs useful kinds of pastime; extra work at weekends; a typical weekend in art catalogue, England and in of a pen essay, your country. Shops and things to buy. different kinds of shops; home delivery; off-season sales; bargaining; small shop or supermarket/department store? - argue for or against; act out a situation in a shop. argue for eileen dissertation or against eating in of a, a restaurant, pub, caf?, snack bar; takeaway food: comfort at reasonable price; the (dis)advantage of fast food places and self-service; describe your favourite place to eat; act out a situation in personal essay application, a restaurant; table manners; laying the table; Various services (bank, post office, repair shop, etc) act out situations in autobiography pen essay, a bank, post office, laundrette, etc.
make a telephone call, post a letter; different kinds of mail; the English Post Office; the importance of paraplanner resume, having a bank account (if any) summer/winter holidays; frequented holiday places and activities; preparation for a trip, cost estimate, decide on the route, decide what to of a pen essay, take, pack; passport, visa, (foreign) currency, travel insurance; your favourite places/preferences. why do people visit places of interest? what are they interested in? describe a typical place for tourism and a typical tourist;
arrange a tour at wildlife in india, a tourist office (cp. 'Holidays' 'Travelling') means of autobiography of a pen essay, transport and their (dis)advantages in art catalogue, travelling; where and how you last travelled; accommodation, hotel, camp site, guest house; passport, visa, insurance; customs control/declaration; tourist office, travel agency, book a trip, package tours; route, places of interest, holiday areas; situations at of a, the airport/railway station/port; rent a car. (cp. Paraplanner. 'Holidays' 'Tourism')
arrange your accommodation in autobiography pen essay, a hotel; the eileen cormier dissertation importance of autobiography of a pen essay, facilities and comfort; hotel vs camp site or private accommodation; hotel categories, famous hotel chains; act out a situation with a hotel guest complaining to the manager. Visiting your country. geography and history;
guide a tourist in your country, speak about sights and places of in india essay, interest; customs and traditions, folk art, music. Culture and civilization. culture: (1) refined understanding of art, literature, etc.; (2) state of of a pen essay, intellectual development of a society; (3) particular form of intellectual expression e.g. in art or literature; (4) customs, arts, social institutions, etc. of a particular group o. of people; civilization: (1) becoming or making sy civilized; (2) (esp) advanced state of eileen dissertation, human development; culture and way of life of of a, a people, nation or period regarded as a stage in the development of argumentative essay brain, organized society. your idea of culture and civilisation; the way you understand art and literature, your favourite style(s); your understanding of pen essay, history and society; being a member of society: role and cormier responsibility; social behaviour; human rights and possibilities; cri. ime and punishment; stages in autobiography of a, man's history and society; the eileen dissertation future of mankind. Travelling in Britain or any English speaking country. the United Kingdom/USA: different countries/states and capital cities; parts of autobiography of a pen essay, England/USA; British customs, English vs Scottish/American manners; places of interest in London/New York or any other city.
The English language. the importance of learning languages; why you like/dislike learning languages; why you chose the English language; your results and experiences so far; how/when/where you study (speaking, reading, listening, writing); your idea of the best way of essay, studying a language and practising communication; other languages that you have learned; British vs American English; differences between English and autobiography of a your language. Choose a question at in india, random and of a talk about the topic: 1 About yourself. Who are you and where do you come from? (your family connections and close relations)
(holidays and occasions with the family) 3 A day's programme. The best day in my life. (why was a certain day better than your ordinary days?) 4 The place where you live. My house is my castle.
(describe your room and art catalogue the house) How do you come to school? (means of transport and how to use them; driving) 6 Nice day, sunshine. Which is your favourite season? (weather forecast, British climate vs your climate) 7 Village or town? Are you satisfied with your present environment? (pollution against autobiography of a, nature, the green movement) 8 Studies at school. Why I (don't) like maths.
(your favourite and cormier disliked subjects) 9 Jobs professions. What occupation would you choose as a career? (act out a job interview) 10 Different sports and autobiography of a games. Why I (don't) want to win the Olympics. (give reasons why you like/dislike certain sports)) Cooking or eating out?
(your favourite/disliked food and meals; table manners) 12 At the doctor's. I wish I were never ill. (talking to your doctor; hospital treatment) What do you usually read and paraplanner resume when? (newspapers, literature, your favourite writer) 14 Cinema, theatre. Isn't a live performance better than watching TV?
(argue for or against television) 15 At a concert. The band was terrific. (your favourite kind of music as opposed to autobiography of a, other styles) Department store or fashion shop? (argue for resume or against different kinds of autobiography pen essay, shops)
The soup is essay too cold. (act out a situation in a fine restaurant) 18 Telephone, post office. Are you on of a the phone? (argue for or against in india, phoning vs sending letters) 19 Holiday making. It's not easy to make a good trip. (packing, hotel reservation, camping, etc.) 20 Guiding a tourist.
What should a foreigner know about your country? (sights, places of of a, interest, geography, history, etc.) 21 Travelling abroad. Do I need a visa? (necessary documents and essays arrangements, customs, etc.)