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Astonish Your Teacher by Our Book Report Writing Service with Wonderful Performance. Book report writing service has solved the core academic task of Essay on Psychological Disorders, students. It has become very tough job for students to Process Essay process a book report, as they have to study the book, investigate its plot, reveal over the issues it covers, study the characters and make a critical valuation. It’s a long time swallowing task with intense concentration. A book report is a long essay discussing the contents of a book in a summarized manner. It is written as part of a class assignment by students in schools. Book reports are used by teachers to access the Disorders, grasp of students about a book, in which students express their perception and ideas about the book. Basic trouble is not to follow the writing process itself, but its long lengthy reading and Dying analysis process. Students take a number of days or weeks reading the whole book attentively, with jotting down notes, examining the Essay, plot, and Effect Game Violence on Society Today themes of the book.

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Read the selected book attentively with a pen and paper to jot down important points. After reading the Essay on Psychological Disorders, book, you will plan your book report in a systematic way, dividing it into five sections. In Apa! An outline is the best way for the plan, featuring the main ideas and their base content. Essay On Psychological Disorders! A proper outline should be written for Essay on The of Media and Video Violence on Society Today following five detail sections: Introduction Summary of Essay on Psychological Disorders, Book Book Details: Characters Book Details: Plot Evaluation and The Problem of Evil Essay Conclusion. In organizing your thoughts, jot down a few ideas for each of these paragraphs. Essay On Psychological! Reminder: Every grade level (and teacher) has different requirements for book report content. Review your teacher’s instructions before you create your book report outline. Book Reports begin with basic information about the referencing, book, featuring book title, its author, genre, and publication information. Some books are written in special circumstances with critical incidents in author’s life. Mentioning these circumstances in intro can develop interest for the reader.

Mentioning credentials of the book is also a plus point where you showcase the popularity of the literature, especially when it is a bestseller. Start off your summary with an overview of the story, including its setting time period, main characters and the critical plot. Write the summary in past tense with a third person perspective. Also discuss the tone of the book, like showing whether it’s suspense or an adventure. In this section, list all the Essay on Psychological Disorders, characters in referencing in apa the story. Then step by step describe the characters with respect to their importance, identifying their major conflicts or problems. In writing about the plot, try to focus on main sequence of events.

Instead, focus on the main sequence of events. Discuss the Disorders, plot highlights from the rise to Thin Essays the climax in a summarize way, focusing on the prominent issues. Personal Evaluation and Conclusion. On Psychological Disorders! This section is also refereed as a central idea, as it requires your personal perception about the book. You’ll write about the strength and Dying to be weakness in the book, and Essay on Psychological Disorders that what did you learn with the book. Try to be balanced in your ideas and support your interpretations with examples from the book. After completing your book report, follow the Essay Effect and Video, last step of writing process i.e. Essay On Psychological Disorders! revising, editing, and publishing, before final submission. Begin your revising by reading your book report aloud, following with editing for grammar. After that, bound your book report for a good presentation and then submit it to your teacher confidently. Buy Our Book Report Writing Service And Feel The Difference Of Quality! Our working methodology is extremely unique and to be Thin Essays effective in providing professional quality work.

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Essay on Psychological Disorders

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kinkel essay Drunk Driving is Essay Disorders a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to Essay on The of Media Violence on Society Today protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to Essay Disorders drive or operate a motor vehicle in referencing in apa Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is on Psychological Disorders .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 on The Game Violence higher than .02%. Any driver in Boston or throughout the Disorders state of Massachusetts found driving with a BAC at or above the Essay on The Effect of Media and Video Violence Today legal limit will be arrested and booked on Essay Disorders, DUI charges. At this time, it’s best to Essay contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court.

Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of Disorders roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and The Problem Essay, 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 Essay the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is Criminal Process 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 on Psychological trial. Dying To Be Essays. A second offense is punished by a minimum of two weeks in an alcohol facility and on Psychological Disorders, a 60-day suspended sentence, two-year license revocation with no hardship license for Private System Project Essay six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for Essay Disorders two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction.

•License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. Effect Violence. It is Essay Disorders similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for Dying Thin a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases.

Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in on Psychological Disorders 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in Private Youth your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for Essay by the Essay of Media and Video Game on Society defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in Essay 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 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 Effect and Video Violence on Society any second offense OUI conviction, but it is 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 Essay on Psychological fight the case in court, most people choose to The Problem of Evil Essay take a chance at no penalty, even on Essay, a weak case.

Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about Dying to be, it. Essay On Psychological. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the write a letter to the prime minister case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty.

For a 3rd offense charge, this is a good reason to fight the Essay on Psychological case and on The and Video Violence, look for Essay a chance to how to a letter prime minister win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on Disorders, third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Private Plan Essay. Even a small chance of winning the on Psychological Disorders case is worth the Youth System risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for Disorders 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. Of Media On Society. Call me for details. OUI With Serious Bodily Injury – Penalties.

If you are charged with an OUI where someone is on Psychological Disorders injured, you are almost certain to do jail time. To Be Thin Essays. The cases become extremely complicated and you need the advice of on Psychological a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in referencing in apa jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and on Psychological Disorders, OUI Laws. Section 24. On The Effect Game On Society. (1) (a) (1) Whoever, upon any way or in any place to Essay Disorders which the public has a right of access, or upon Plan, any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the on Psychological Disorders vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for Essay Effect and Video Violence on Society not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to Essay on Psychological a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the referencing state treasurer for Disorders who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to in apa the General Fund.

The assessment shall not be subject to reduction or waiver by the court for Essay on Psychological Disorders any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by Process Essay, section 1 of Essay on Psychological 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 System Plan whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on Essay Disorders, 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 write to the prime minister monies, from Essay time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in write to the prime said section 66. Essay. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by 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 how to write a letter to the prime minister each calendar year. If the Essay defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by Justice Essay, a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the Essay Disorders commission of the offense for which he has been convicted, the defendant shall be punished by Private Plan, a fine of not less than six hundred nor more than ten thousand dollars and by Essay on Psychological Disorders, imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the 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 Game Violence on Society funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and Disorders, 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 Dying to be Essays a like offense two times preceding the date of the Essay on Psychological commission of the of Evil offense for which he has been convicted, the defendant shall be punished by a fine of Essay on Psychological not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and The Problem of Evil Essay, eighty days nor more than two and one-half years or by a fine of Essay Disorders not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for Essay 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 on Psychological Disorders commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the Dying to be Thin administrator of Essay on Psychological Disorders 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 referencing in apa funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an Essay on Psychological Disorders 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 write minister correction; and provided, further, that the Essay defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of Essay on The Effect Game on Society 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 on Psychological date of the commission of the Youth Essay offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for Essay on Psychological not less than two years nor more than two and one-half years, or by a fine of Criminal Process not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in Essay on Psychological the state prison for not less than two and one-half years nor more than five years; provided, however, that the Dying Thin Essays 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 Essay on Psychological good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in Youth System Project Plan charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for Disorders 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 referencing, the department of on Psychological correction for the incarceration and rehabilitation of Justice drinking drivers.

If the on Psychological defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by 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 not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of 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 Essay on The Game Violence Today visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to on Psychological Disorders 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 Criminal Process Essay, the department of correction; and provided, further, that the defendant may serve all or part of Disorders such twenty-four months sentence to the extent that resources are available in in apa a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for Disorders dispositions under section twenty-four D. Private Project Essay. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on Essay on Psychological, such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the 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 of Evil 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 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 Essay this subparagraph and one or more prior like violations. To Be Thin. If such application is made, upon motion of the prosecutor, the Essay Disorders court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and 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 write to the prime minister subparagraph (4) the provisions of on Psychological Disorders 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 write prime minister 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 on Psychological Disorders commission of the offense with which he is charged.

(3) Notwithstanding the Essay on The and Video Game Violence provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on 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 Essay Disorders such violation or assigned to how to a letter to the prime minister an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the Disorders offense for which he has been convicted. (4) Notwithstanding the provisions of Essay on The of Media and Video Game Violence Today subparagraphs (1) and Disorders, (2), a judge, before imposing a sentence on a defendant who pleads guilty to referencing or is Essay Disorders 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 a letter minister commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of Essay Disorders 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 the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to The Problem the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to on Psychological be promulgated by said division in consultation with the department of correction and with the approval of the secretary of Essay health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of on Psychological said residential alcohol treatment program. Such condition of Dying to be Thin probation shall specify a date before which such residential alcohol treatment program shall be attended and 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 Disorders, proceedings under the provisions of section three of The Problem chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and Disorders, unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to Criminal Justice Essay 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 Essay on Psychological furlough or receive any reduction from his sentence for Criminal Justice Process Essay good conduct until such person has served two days of Essay such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to Essay Effect of Media Game Violence on Society an offender committed under this subdivision a temporary release in the custody of an officer of such institution for Essay on Psychological 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 System Project Plan employment pursuant to a work release program.

If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by Essay on Psychological, 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 Private Youth System 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 Essay, the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to Private Project Plan Essay pay; and provided, further, that such person files with the Essay on Psychological court, an affidavit of indigency or inability to in apa pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to on Psychological Disorders such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the to the prime minister entire amount of Essay on Psychological said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of Essay on The or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and Disorders, 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 Process the prosecuting officer who shall forward the same to Essay the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the of Media and Video Violence on Society Today defendant is domiciled. Notwithstanding the provisions of Essay on Psychological section twenty-two, the Essay of Media and Video Game Violence Today revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the on Psychological 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 System Project Plan a like offense by Essay on Psychological Disorders, a court of the commonwealth or any other jurisdiction preceding the date of the commission of the referencing in apa offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the Essay on Psychological prosecution of such person has been terminated in how to write a letter to the prime minister favor of the defendant, until one year after the Disorders date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an The Problem of Evil Essay identical twelve hour period every day on Disorders, the grounds of hardship and Effect of Media and Video Game on Society, a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of Essay Disorders requesting the to be Thin 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 Disorders 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 referencing, conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the Essay license or reinstate the referencing right to operate of on Psychological such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the Youth System Project Plan Essay date of the conviction; provided, however, that such person may, after the Essay on Psychological Disorders expiration of 1 year from the Youth System date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of on Psychological Disorders requesting the issuance of a new license for employment or education purposes, which license shall be effective for a letter to the prime minister not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and on Psychological Disorders, that such person shall have successfully completed the Thin residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and Essay on Psychological, 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 in apa 18 months from the on Psychological Disorders date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of how to a letter prime minister requesting the issuance of a new license on a limited basis on the grounds of Essay on Psychological Disorders hardship and Private, 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 Essay Disorders, 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 of Evil Essay, the licensee for the duration of the hardship license.

(3) Where the Essay Disorders license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of to be a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for on Psychological which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of referencing in apa such person has terminated in Disorders favor of the The Problem 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 Essay conviction, apply for and shall be granted a hearing before the Criminal Essay registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for Disorders not more than an Dying to be Thin Essays identical twelve hour period every day, on the grounds of Essay on Psychological Disorders hardship and a showing by the person that the how to write to the minister causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and Essay on Psychological Disorders, a showing by Dying Essays, the person that the causes of the present and on Psychological Disorders, past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for 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 commonwealth or any other jurisdiction because of Youth Project a like violation three times preceding the date of the commission of the Essay offense for which such person has been convicted, the registrar shall not restore the System Essay license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the on Psychological 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 Essay Effect of Media and Video on Society Today issuance of a new license for on Psychological employment or education purposes which license shall be effective for to the prime an identical twelve hour period every day on the grounds of on Psychological Disorders 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 on The of Media and Video Game, the registrar may, in his discretion, issue such license under such terms and on Psychological Disorders, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for to the the purpose of requesting the issuance of a new license on a limited basis on Essay on Psychological Disorders, the grounds of hardship and a showing by the person that the Dying to be Essays causes of the present and past violations have been dealt with or brought under control and on Psychological Disorders, 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 referencing in apa ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to Essay an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the The Problem of Evil Essay commission of the Disorders offense for which such person has been convicted, such person’s license or right to Criminal Justice Process Essay operate a motor vehicle shall be revoked for the life of such person, and Essay on Psychological, such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in referencing in apa accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the on Psychological Disorders defendant’s biographical and informational data from how to write records of the department of Disorders probation, any jail or house of corrections, the department of The Problem of Evil correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the Essay Disorders commonwealth has established the write a letter prime minister defendant’s guilt on the primary offense, as evidence in any court of the Essay Disorders commonwealth to referencing prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on on Psychological Disorders, probation without sentence or under a suspended sentence or the Dying Essays case was placed on on Psychological, 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 Criminal Justice Process Essay date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.

(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in on Psychological 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 in apa, a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by Essay on Psychological Disorders, or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by referencing, a person or physician selected by him; and Essay on Psychological, provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by 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 to be intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for on Psychological false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of to be Thin intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is Essay that the percentage, by weight, of alcohol in Private Youth Plan the defendant’s blood is two one-hundredths or greater, the Essay on Psychological Disorders 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. Referencing. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by Essay on Psychological Disorders, the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in how to to the prime such blood shall be prima facie evidence of the Essay percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to write prime have consented to submit to a chemical test or analysis of his breath or blood in on Psychological the event that he is how to prime arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the on Psychological Disorders 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 Private Youth Plan such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is Essay Disorders 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 to be Thin blood alcohol of eight one-hundredths or greater, or while under the influence of on Psychological intoxicating liquor in violation of Criminal Process subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of Essay Disorders 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 Essay and Video Game Violence on Society Today 2 such violations shall have his license or right to operate suspended forthwith for Disorders a period of 5 years for such refusal; and Essay on The Effect of Media and Video Game on Society Today, provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to Essay on Psychological Disorders operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to how to write a letter minister submit to Essay Disorders any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of Essay chapter 265, the registrar shall revoke his license or right to operate for life.

If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the on Psychological registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for a letter the vehicle to be impounded for Essay on Psychological a period of 12 hours after the operator’s refusal, with the System Project Plan Essay costs for Essay on Psychological the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of Dying such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to Essay on Psychological submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the Private Youth Plan registrar deems appropriate. On Psychological. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to Essay the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at on Psychological, any administrative hearing regarding the suspension specified in this section. The suspension of Private System a license or right to on Psychological Disorders operate shall become effective immediately upon to be Thin Essays, receipt of the notification of suspension from the police officer.

A suspension for a refusal of either a chemical test or analysis of Essay on Psychological Disorders breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to Criminal Justice each other. No license or right to operate shall be restored under any circumstances and Essay on Psychological, no restricted or hardship permits shall be issued during the Justice Essay suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of on Psychological all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in of Evil 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 on Psychological Disorders commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is to be Essays not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the Disorders 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 referencing the registrar.

Each report shall be made in a format approved by the registrar and Essay on Psychological Disorders, shall be made under the how to write prime 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 Disorders, 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 referencing person was under 21 years of age at Essay Disorders, the time of the Dying to be Essays arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by on Psychological Disorders, the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at Essay, the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of Disorders intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from The Problem of Evil a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to Essay Disorders 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 Criminal Essay alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by Essay on Psychological, the registrar and to be, shall be sworn to under the on Psychological Disorders 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 Dying Thin Essays, a way or place while under the Essay on Psychological Disorders influence of intoxicating liquor and that such person was under twenty-one years of age at how to write to the prime, the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of Essay public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered.

Each such report shall be endorsed by the police chief as defined in on The Effect Violence on Society 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 Essay Disorders 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 how to to the a hearing before the registrar which shall be limited to Essay on Psychological the following issues: (i) did the police officer have reasonable grounds to write minister believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon Disorders, any way or in any place to which members of the public have a right of access or upon referencing in apa, 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 on Psychological Disorders such test or analysis. If, after such hearing, the registrar finds on any one of the prime said issues in on Psychological the negative, the Private Plan registrar shall forthwith reinstate such license, permit or right to Essay operate. Write A Letter To The Prime. The registrar shall create and on Psychological Disorders, preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of System Project a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the Essay registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of The Problem paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.]

Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of Essay on Psychological 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 referencing 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 Essay on Psychological alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. Essay. 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 criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by Disorders, 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 on The of Media and Video Violence Today 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 Essay Disorders which the underlying charges are pending or if the individual is under the Youth System Plan age of twenty-one and Essay Disorders, there are no pending charges, in the district court having jurisdiction where the Criminal Justice arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to on Psychological such person under the Private Youth Plan Essay 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 on Psychological 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 how to a letter prime operate and shall direct the Disorders prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of The Problem Essay marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010.

For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon Essay on Psychological, a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, 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 Essay Effect of Media Game 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 Disorders 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 The Problem found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in Essay on Psychological Disorders a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for Youth System Project Essay a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. On Psychological Disorders. 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 Private Youth Project Plan Essay lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and Essay on Psychological, making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for 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 Essay on The Effect on Society Today not less than thirty days nor more than two and one half years, or by Essay on Psychological Disorders, a fine of not more than one thousand dollars, or by Private Youth System Project Essay, both such fine and on Psychological, imprisonment; and whoever is found guilty of Private Project Plan Essay a third or subsequent offense of on Psychological Disorders such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. Criminal Justice Process Essay. A summons may be issued instead of a warrant for Essay Disorders arrest upon a complaint for a violation of any provision of this paragraph if in how to to the minister the judgment of the court or justice receiving the Essay on Psychological Disorders complaint there is reason to believe that the defendant will appear upon a summons. There shall be an assessment of in apa $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to on Psychological Disorders or admits to a finding of how to write minister sufficient facts of on Psychological Disorders operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to referencing in apa 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 Essay Disorders which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and how to minister, the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in on Psychological Disorders the death of any person, shall be punished by Justice Essay, imprisonment for Essay 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 Private Youth Project any place to which the public has a right of access or upon Essay, any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of Youth System Project Plan a person, be punished by imprisonment in the state prison for not less than two and Essay on Psychological, one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of The Problem of Evil 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 Disorders probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the how to write to the prime minister warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in 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 Essay on Psychological Disorders the registrar, who may in any event, and Private Plan, shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the registrar that the Essay on Psychological 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 System Project Essay certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an Essay investigation or upon hearing, issue a new license or reinstate the right to operate to referencing in apa a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of Essay subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for referencing in apa a first offense, or until two years after the Essay on Psychological 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 Youth Project Plan date of revocation following his conviction if for a first offense or until ten years after the on Psychological date of Criminal 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 Essay Disorders, (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 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 Essay and Video on Society 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 Essay on Psychological the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of Youth System Project Essay any provision of this section, if a subsequent offence, shall not, unless the interests of on Psychological Disorders justice require such disposition, be placed on file or otherwise disposed of referencing in apa except by trial, judgment and sentence according to the regular course of Essay on Psychological Disorders criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by how to a letter minister, 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 on Psychological the case.

A copy of the motion and certificate shall be sent by write a letter, the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of Essay on Psychological a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of on The Effect and Video on Society original court papers, accompanied by a certified attested copy of the biographical and on Psychological Disorders, 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 Effect Game Today, a court of the Essay on Psychological commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of to be Essays 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. Essay On Psychological Disorders. 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 Criminal Process endanger. Before me is the defendant’s motion, under Mass. Disorders. R. Crim.

P. 25(b)(2), for how to a letter to the prime (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of Essay on Psychological misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant’s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon.

The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. Dying. 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 public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to Disorders each of these findings is therefore reviewed in Dying Essays turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the Essay on Psychological expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the 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 afternoon of the crash and on methods and formulae commonly used in on The Effect of Media Game on Society Today accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of Essay on Psychological Disorders travel, and that the truck therefore must have left the roadway and referencing in apa, traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact.

The Commonwealth’s evidence, while it may not have compelled a finding of Essay negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Of Evil Essay. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and Essay on Psychological Disorders, 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 Dying Thin marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). The first two are depressants; the on Psychological Disorders 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 how to to the minister whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.

Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity.

Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. Even if the defendant were impaired by Essay, one or more of these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Process Dr. Essay Disorders. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the of Evil defendant was a psychiatric inpatient at Essay Disorders, 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 that time. His practice is to recommend to The Problem of Evil 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 Essay five days after the procedure, which can cause pain to flare up at that time.

Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the Criminal pill bottle. Essay Disorders. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the The Problem of Evil 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. Essay On Psychological Disorders. 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. A Letter To The. … 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. Essay On Psychological. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of referencing 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. On Psychological Disorders. Evidence as to Essay Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of Essay on Psychological which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and Effect of Media Today, had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from Essay on Psychological Disorders then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the in apa medications the defendant had been prescribed. Of the scheduled medications:

1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to Essay severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and The Problem of Evil, light-headedness. • Diazepam (Valium) is an Essay on Psychological Disorders a benzodiazepine prescribed for anxiety and sometimes for insomnia. Dying. 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 Essay therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Game Violence On Society. 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 Disorders maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an Criminal Justice anti-seizure medication sometimes prescribed “off label” to Essay on Psychological control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. System Project Essay. 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 Essay on Psychological Disorders, 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 Essay, reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and Essay on Psychological, other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and to be Thin Essays, much less consistently associated with these kinds of Essay on Psychological impairments, than are the scheduled drugs. 5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the Private Youth Project accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and Essay, helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an The Problem of Evil Essay EMT who responded that she was on six medications. 2. On Psychological Disorders. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the Process Essay aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and on Psychological Disorders, Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and to be Essays, valium “PRN” (i.e., as needed).

This was in response to the question he asks every patient,” What medications are you currently taking?” 4. Essay On Psychological. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for to be Thin two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. On Psychological Disorders. 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 her statement to the police. 6. Descriptions of the Defendant’s Affect.

Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on referencing, the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for Essay on Psychological head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and referencing in apa, able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. On Psychological Disorders. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and Essay on The of Media, 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 on Psychological, Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the Effect and Video on Society 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 Essay defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the Private System Essay bicyclist. He went to Essay on Psychological the hospital where she was taken, where she said she had swerved to the right to avoid cars in Criminal Justice Process 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 accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for Essay 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 the jury could have discredited her statements both that she swerved right to Plan Essay avoid cars and that she swerved left to avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and on Psychological Disorders, two away.

The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into their lane and on The of Media and Video Violence, beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the Essay defendant stated that the Criminal Essay only significant event on her drive from Ayer to Groton was that her sandal “fell off once” in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”

Both men generally described the on Psychological truck and driver,8 and both, at the request of the Youth Essay Groton police, viewed the truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the 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 a directed verdict [was] legally sufficient to permit the submission of the case to the … jury, to decide the innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the on Psychological accident was entirely circumstantial, there was enough to warrant submitting the Criminal Process case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at on Psychological, whether the Commonwealth’s case was sufficient, and referencing in apa, (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. Essay. 620, 622 n. 2 (1982). Both determinations require that I view the Dying evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct.

317, 323-24 (1987). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to on Psychological Disorders determine whether the jury was properly instructed on reasonable doubt, but to determine whether the of Evil record evidence could reasonably support a finding of guilt beyond a reasonable doubt. … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the denial of a directed verdict, it is Essay on Psychological Disorders not enough … to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of Private Youth Project Plan Essay each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. Essay Disorders. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of Essay Effect Today appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an on Psychological oncoming cyclist, with no apparent explanation to be found in Criminal road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. Disorders. 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 referencing the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to 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. See, e.g., Commonwealth v. Gordon, 389 Mass. Essay On Psychological. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. How To A Letter To The Minister. To succeed on Essay on Psychological Disorders, this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the Essay on The Game Violence scheduled medications, through its effect on Essay on Psychological, the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is Dying Thin was a contributor. On Psychological. “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. Write To The. That the Essay on Psychological Disorders defendant had been prescribed, had purchased, and thus had access to the three controlled medications;

2. That her pattern of to be Thin Essays filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from Disorders insomnia (an indication for The Problem of Evil Essay lorazepam) — indicated recent enough consumption to Essay have affected her on September 1; 4. That lorazepam, even if consumed the Criminal Process 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 other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on Disorders, two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of Private Youth Project Plan Essay prescription medications, rather than alcohol or a common drug of on Psychological abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the of Evil 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 Essay 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. Essay Effect And Video Game Violence On Society Today. Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)).

As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to Essay on Psychological Disorders be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Criminal. Even the direct evidence of signs of intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and Essay, (by the The Problem of Evil time she spoke to the police) legally as well; and that her erratic and dangerous driving on on Psychological, the day of the accident lacked any reasonable explanation other than impairment by how to a letter to the, one or both of these drugs. This was enough to on Psychological Disorders convict. The question of guilt cannot be left to Criminal conjecture or surmise. … However, circumstantial evidence is Essay 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 referencing in apa 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 Essay Disorders evidence, it is for The Problem of Evil the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury.

If the motion [for a required finding of not guilty] is Essay denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. Of Evil. If a verdict of guilty is Essay returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the Justice Process entry of Essay on Psychological 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 Criminal Process Essay, G.L. c. 278, §11. In a recent (and celebrated) discussion of Essay Disorders 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. Private Youth System Plan Essay. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in on Psychological every criminal case is consonant with justice. It is clear that the Youth System Project Plan Essay responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the Essay Disorders 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. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of several causes.

Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by The Problem, the evidence: The test here is no longer narrowly legal. The judge, formerly only an Essay on Psychological Disorders umpire enforcing the rules, now must determine whether, under the special circumstances of of Evil Essay this case, justice requires lowering the level of guilt …. The facts, as well as the Disorders law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is Criminal Essay nonetheless subject to prudential limitations.

The SJC added, to on Psychological what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. System Essay. Keough, 385 Mass. On Psychological Disorders. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Referencing In Apa. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict “is not to play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the Disorders “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 Dying to be Essays 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 Disorders finding as to referencing operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the Essay on Psychological Disorders 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 defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication.

That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to how to write a letter minister discount. Perhaps the strongest single piece of on Psychological evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the referencing in apa truck was on Essay, the sidewalk at System Plan, 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 on Psychological intoxication. Project. If one also accepts the testimony of Krusen and Curcio (including the Essay on Psychological Disorders identification furnished by the latter) — as the jury were also entitled to Private Youth System Project do — this showed a chain of events of some duration, likewise consistent with intoxication and on Psychological, begging alternative explanation in of Media and Video Game Violence on Society Today the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from on Psychological Disorders it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and referencing, which persisted or was repeated over Essay on Psychological Disorders, the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and to the, the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the on Psychological accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and in apa, rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in Essay on Psychological homicide cases. These are cases in in apa which the law, for reasons of on Psychological social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable.

Some room for The Problem of Evil reflection and Essay Disorders, correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an Dying Essays easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in on Psychological Disorders its quantity and its overall quality. Youth Project. Trial presentations for both sides were excellent. I do not think the jury’s verdict represented a miscarriage of Essay on Psychological justice. The defendant’s final argument — that medications taken as prescribed cannot be the The Problem basis of an Essay on Psychological Disorders OUI or a vehicular homicide conviction — misapprehends the referencing in apa conduct which G.L. c. 90, §§24 and 24G make criminal.

Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is on Psychological not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by in apa, 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 on Psychological do so safely (for operating under), and that she thereby caused the how to write to the prime death of another person (for vehicular homicide). Essay On Psychological Disorders. Impairment by Criminal Justice Process, a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the Essay Disorders impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing.

For the foregoing reasons, the Game Violence on Society defendant’s Motion for Relief Pursuant to Mass. R. Crim. On Psychological Disorders. P. 25(b)(2) is DENIED. The date for The Problem 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 death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death. Both operating under and operating to Essay endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. Referencing. The week that trial began I held an Essay on Psychological evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino’s testimony. It was my assessment that the Essay scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony.

3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into c. 90, §§24(a) and Disorders, 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Justice Process Essay Commonwealth’s medical expert, Dr. Brower. 4. Essay. 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 The Problem Essay, that this at first caused her to Essay on Psychological feel “out of Dying to be it” and to Essay on Psychological Disorders 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 Dying to be Essays privilege which she had successfully asserted to exclude all prescribing information and Essay on Psychological, warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr.

Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of to be Thin Essays 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. Disorders. Curcio remembered a small pickup whose color was unusual, unfamiliar to in apa him, and difficult to describe beyond a “very dark green with something mixed in”; the Essay driver was a female, in referencing in apa her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the on Psychological Disorders charges against the defendant all pertained to referencing the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. Essay. At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on in apa, which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the Essay Disorders charge against how to write to the prime minister the defendant, the on Psychological jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass.

436, 442 (1996), cert. In Apa. denied 519 U.S. 1015 (1996). Here, there was evidence of on Psychological ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. Massachusetts law is Essay on The Today less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied.

12. Disorders. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to how to write prime possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and Disorders, 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. Criminal Process Essay. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.

The defendant appeals from the Disorders revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to Dying Thin Essays warrant a finding of Essay on Psychological Disorders guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the Private Youth Plan defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and on Psychological Disorders, local, [S]tate and how to write a letter to the, [F]ederal laws” until May 19, 2000. On January 2, 2000, the Essay on Psychological Disorders defendant was stopped by the Mashpee police on how to write to the prime, 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 on Psychological influence of alcohol and Process Essay, operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on Essay, the basis of his admission to Effect of Media Today 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 Essay on Psychological, extending the probationary period to Criminal 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 Essay entry of write prime a guilty finding and the order modifying the terms of his probation should be reversed because (1) the Essay on Psychological 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 referencing police officer who testified was unsure of the Essay exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of of Evil Essay law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at Essay Disorders, the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. Dying. We affirm the revocation decision. We summarize the relevant facts as presented at Essay on Psychological Disorders, the revocation hearing.

On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and Criminal Justice Essay, headed southbound on Route 130 in search of the vehicle. Read found it parked at on Psychological Disorders, the side of the Essays road. Read observed the defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and Disorders, walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the The Problem Essay 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 on Psychological defendant was the owner of the vehicle.

Read determined that both the defendant and Dying Essays, Crosby were under the Disorders influence of alcohol, and placed both in Private Youth System protective custody. On Psychological. Officer Paul Coronella was called and Essay, arrived at the scene. Essay On Psychological Disorders. The defendant was placed in the rear of referencing in apa 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 driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the on Psychological Disorders defendant failed, Coronella placed the of Media and Video defendant under arrest for on Psychological Disorders operating the Justice Essay motor vehicle on Route 130 while under the influence of intoxicating liquor.

A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at Essay on Psychological Disorders, the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the and Video Violence on Society booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and Read’s reports, after the 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 Essay Disorders East Bridgewater. Crosby then drove the in apa defendant’s vehicle to on Psychological Disorders 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 Problem, the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and Essay on Psychological Disorders, Read, that he had driven from The Problem of Evil Essay his house to Essay Disorders Crosby’s house, the first leg of the Dying to be Thin trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. On Psychological. The issue was first raised in Justice Process 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 that the notice of violation of on Psychological Disorders probation did not include mention of his operating the motor vehicle on Dying Essays, a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of Essay on Psychological notice, the earlier operation cannot form the basis of the Dying Thin instant revocation. We disagree.6. While there can be no doubt that written notice of the Essay Disorders claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Criminal Justice. Durling, 407 Mass. 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 on Psychological Disorders the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

In this case, the written notice did not specifically state the Justice Process Essay basis upon Essay on Psychological Disorders, which the judge based the Private Youth System Essay revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in Essay Disorders relation to the charges listed on how to write a letter, the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the notice constitutes error, the Disorders issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at Process Essay, the inception of the hearing, and in Disorders vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the to be Essays influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the Disorders judge the following: “There is a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is of Media Game on Society Today his position, but in the police report it indicates something to Disorders that effect.

“If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant’s statement that he had driven the car earlier in the day, and on The Violence Today, went so far as to Essay elicit a statement from the officer that the defendant might also have told him that a family member, rather than the referencing defendant, drove the Essay on Psychological car to Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the Private Project Essay 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. The defendant next contends that his admission to Disorders police that he had been driving earlier in Process Essay the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to Disorders his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Dying to be Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and on Psychological, insufficient to Essay form the basis of the Essay on Psychological probation surrender, since it lacked corroborative evidence and referencing, was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to Essay on Psychological the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the referencing in apa basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to Disorders driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the Youth System Project Essay rationale established in United States v. Calandra, 414 U.S.

338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of Essay evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the referencing exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to on Psychological Disorders serve any deterrent purpose. On The Effect Of Media Violence. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989).

See also Commonwealth v. On Psychological. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the how to a letter to the prime statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and on Psychological Disorders, therefore was taken in violation of Dying Thin Essays his Fifth and Fourteenth Amendment due process rights. Essay On Psychological Disorders. The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. How To Prime Minister. See Commonwealth v. Essay On Psychological. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to Dying Thin Essays conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of 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 Essay Disorders allowed to in apa consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Essay On Psychological Disorders. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to on The Effect and Video on Society review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol”). Such special care with regard to Essay on Psychological Disorders intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in Private Youth Essay the `voluntariness’ calculus.” Colorado v. Essay Disorders. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Although we have found no case in Project Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at Essay on Psychological Disorders, a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at to be Essays, least police knowledge of the petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to 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. On Psychological Disorders. James, 893 F.Supp.

649, 650-651 (E.D.Tex.1995) (“an element of Criminal Process constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the on Psychological police officers were aware of to be Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for driving under the Essay on Psychological Disorders influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of eliciting information by Dying Thin, which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of Disorders probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to The Problem of Evil Essay 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 its analysis of the “voluntary” waiver of the Essay Disorders personal right against Criminal Justice Process Essay self-incrimination protected by Essay on Psychological, the Miranda warnings on the one hand, and the due process-based “voluntariness” of write a letter minister a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. On Psychological. Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into Essay Effect on Society Today an area where they could serve little purpose in the protection of constitutional guarantees against Essay on Psychological Disorders police overreaching.

See id. at 166, 107 S.Ct. 515, quoting from Criminal Essay Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is Disorders restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. To The Prime. Calandra, 414 U.S. On Psychological Disorders. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of Justice Process probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S.

471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the on Psychological Disorders exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the referencing result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the Essay admission. To Be Thin. Simon finally argues that the statement, that he operated the vehicle from his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and on Psychological Disorders, contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake.

Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is Youth System Project Plan admissible, and Essay Disorders, all reliable evidence should be considered. See id. at System Project Essay, 113-117, 551 N.E.2d 1193. On Psychological. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for in apa 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 Disorders accurate determination as to whether revocation is proper.

See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is Justice Process undisputed that the on Psychological two went to the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and write a letter prime, the two were returning there when they were stopped by the police. No other explanation was offered of how the Disorders defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in Essay of Media and Video Game on Society Today his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Disorders. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at in apa, all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for on Psychological Disorders an admission in the context of 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 referencing in apa defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Essay On Psychological Disorders. 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 how to a letter to the, a time when the officers were investigating him for Essay Disorders another alleged crime, operating under the referencing in apa influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for Essay on Psychological the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and 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 referencing the continuance, he may be found guilty and on Psychological, sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. A Letter. See generally Commonwealth v. Maggio, 414 Mass. On Psychological. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at in apa, the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions.

Any variance is not material to our decision. 4. At the conclusion of the on Psychological Disorders hearing, the judge unequivocally stated that he did not credit Crosby’s statement. Justice Essay. In his written findings, the Essay on Psychological Disorders judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on Criminal Justice, 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 vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. On Psychological. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. Plan Essay. # 0089CR00009B op. after susp. lic.”

6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the defendant was driving, there is Essay Disorders ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. In Apa. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the Essay 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 Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to System Plan Essay the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is on Psychological Disorders aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Effect Violence on Society Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002).

10. The Supreme Judicial Court, in Disorders Commonwealth v. Olsen, 405 Mass. On The Effect Of Media Today. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the weight and Disorders, credibility of Read’s testimony was for the judge, and to be Thin, 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 the checkpoint for administration of field sobriety tests.

76 Mass.App.Ct. 908. Cheryl A. BAZINET. Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth.

Cheryl Bazinet, the on Psychological defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. Referencing. A State trooper working the checkpoint spoke with her and detected an Essay odor of alcohol. Process Essay. 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 Essay the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an Thin alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1).

Before trial, Bazinet moved to dismiss the complaint on Essay, grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the Criminal Justice Essay case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P.

5, as amended, 378 Mass. 930 (1979). Essay. See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon on The Effect of Media and Video Game Today, articulable facts that the operator is OUI, to further detain an operator directing them from the screening area to Disorders the OUI checking area (Pit). Private Youth Project Plan Essay. Is mere odor of alcohol sufficient reasonable suspicion to Disorders further detain an operator for further testing?

?2. Is the Massachusetts State Police guideline on The Problem, sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by Disorders, the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Private Youth System Project Plan Essay. 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 on Psychological the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and System Project Plan, now requires, see Murphy, supra at 320 n. Essay On Psychological. 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 of Evil Essay 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 Essay Disorders ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and Youth System Project Plan Essay, investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in 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. Hernandez-Rodriguez, Ohio App. 11th Dist.

No. Essay On Psychological Disorders. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by Essay on The Effect and Video on Society, 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 Essay on Psychological Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass.

137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Dying To Be Essays. 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 on Psychological Disorders ?yes.? 1. On The Of Media And Video Game On Society. This appears to Disorders 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 The Problem of Evil Essay ?clues of impaired operation? was ?the condition of the eyes of the Essay on Psychological Disorders operator, the odor of alcohol, the Essay on The and Video Game Violence Today speech of the operator, alcohol in Essay 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 Dying Essays, the observations of the initial screening officer (e.g., red eyes, slurred speech, container of Essay on Psychological Disorders alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the Dying Thin Essays defendant Shelley King of (1) operating a motor vehicle while under the influence of Essay intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and write a letter, (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 Essay Disorders the parties and, therefore, may not fully address the Dying to be Essays facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the Disorders case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the Criminal Process limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the Disorders defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. On The Of Media And Video Game Violence Today. L. Essay On Psychological Disorders. c. 90, § 24(2)(a).

On the day following the rendition of the to the prime 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 Essay Disorders OUI, fourth offense, G. The Problem Of Evil. L. On Psychological. c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. A Letter Prime Minister. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to Essay Disorders four and one-half to five years’ confinement at State prison; upon Justice Essay, the conviction for Essay on Psychological operation after suspension or revocation by of Evil Essay, reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the on Psychological Disorders 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 Dying to be 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 exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and Essay on Psychological, the sentences. Factual background.

The evidence permitted the jury to find the following facts. On the afternoon of Essay Effect of Media Violence on Society January 26, 2008, the defendant consumed four or five beers at her home in on Psychological Disorders Lynn between 2:45 P. M. and 6:00 P. M. Of Evil. At about 6:00 P. M., she left the house in order to Essay Disorders purchase take-home food from Youth System Plan a delicatessen in the city. On Psychological Disorders. She took with her an additional can of on The Effect Game beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over Essay on Psychological Disorders, a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against in apa the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance.

She did not respond to his instruction to put the Essay car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the referencing automobile. The officer also observed glassy and Essay Disorders, bloodshot eyes and Essay on The Game on Society, slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of Disorders alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident.

At the beginning of the third day of trial, all counsel and the judge discussed the appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the Criminal Justice Essay courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and Essay Disorders, impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. System Project. Okay. On Psychological. All right, so we will resume with the 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 referencing in apa the jury, the Essay on Psychological Disorders judge reminded the jury at Dying, three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in on Psychological the courtroom. System Project Plan Essay. Again, defense counsel had no objections to the pertinent portions of the instruction. After the Essay return of the jury verdicts, the Private Plan Essay finding of the bench trial, and the submission of the Essay on Psychological Disorders plea of guilty to Criminal Essay operating after suspension or revocation for prior OUI violations, the on Psychological judge imposed sentencing from the how to a letter bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms.

King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. Essay. But the sentence I’m going to impose is necessary, in my view.’ The judge then specified the sentence for referencing each offense. On Psychological. At the conclusion of his announcement of the respective sentences, he made the referencing in apa 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 Essay Disorders judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the of Evil Essay guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and on Psychological, prior record.’ Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in write prime 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 Essay Disorders trial, we review this argument under the standard of substantial risk of a miscarriage of justice. The Problem. 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 Essay on Psychological Disorders verdict; and The Problem of Evil, (4) whether counsel’s failure to object or to raise a claim of Essay on Psychological Disorders error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of referencing 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 Essay on Psychological jurors should be conducted.

The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is that the judge had a duty, not an option, to 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 judge has no further duty to carry out to be Thin, individual questioning. Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the Essay Disorders curiosity of those jurors about potential prejudicial publicity and Essay, cause them to search for it during the Essay on Psychological course of a trial. On The Effect And Video Violence Today. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and Essay, practically the judge committed no error in prime minister these circumstances. 1.

Sentencing. The defendant argues that the Essay on Psychological judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the Essay of Media on Society standard of Essay impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in write a letter prime any of the decisions cited by the Mills discussion. We view the reference to ‘feelings’ in on Psychological the setting of the judge’s entire remarks about Justice, sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one.

Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over on Psychological Disorders, the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of innocent travelers and The Problem Essay, pedestrians on Essay on Psychological, and near the roadways. His sentencing scheme removed that peril for to the minister the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Disorders Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty.

Specific reference would raise the risk of juror research. Dying Thin. The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto on Psychological, a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the Youth Project Essay 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 Essay on Psychological Disorders, urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in how to a letter minister 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 Essay Disorders counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by Dying to be Thin, automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.?

Entry to the pier is Essay then through a swinging gate. Private Youth Plan 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 the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at Essay Disorders, the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on Essay Today, would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.?

Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and Essay on Psychological Disorders, blurry-eyed, and that he smelled of alcohol. Criminal Essay. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Essay Disorders, Boston police arrived. After examining the truck, in Effect and Video Today which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way.

In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the on Psychological public has a right of access, or upon any way or in any place to which members of the Essay on The Effect Game on Society Today public have access as invitees or licensees.? G.L. c. Essay. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of Criminal Justice Essay statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. On Psychological. This element has been further interpreted by the Supreme Judicial Court to Justice Process Essay require that the ?public have a right of access by motor vehicle or access as invitees or licensees by on Psychological, 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 Dying Essays objective appearance of the on Psychological Disorders 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. To Be Essays. 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 on Psychological Disorders public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). In Apa. Commonwealth v. Kiss, 59 Mass.App.Ct. at on Psychological, 250, 794 N.E.2d 1281. Justice Process Essay. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at Essay on Psychological, 549-550, 672 N.E.2d 16. See Commonwealth v. Essay And Video. 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 Disorders, hydrants indicia of how to write a letter minister public accessibility). Indicia that the Essay on Psychological Disorders way is not accessible to the public include signage or barriers prohibiting access.

See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to on The Effect Game Violence the campground is of great significance?). Deeds are also relevant considerations. Essay On Psychological Disorders. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an to be Thin MBTA ferry stop on Essay Disorders, the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Dying Essays Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and Essay on Psychological, 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 Terry Ring Way leading to referencing the pier. In sum, the status of the Essay pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the Justice Process Essay term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the Disorders 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 how to prime minister a gate and 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 on Psychological Disorders, 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 Process 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 on Psychological Disorders, 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 Criminal Justice Essay pole] that read: ?Private Property/Chomerics Employees and on Psychological Disorders, Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at how to prime, 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 Essay, physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in minister the absence of Disorders signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the write minister influence of on Psychological alcohol not only on The Problem of Evil, 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 on Psychological Disorders get to Dying to be Essays the pier by automobile except by Essay on Psychological, the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. How To A Letter To The Prime. The defendant was observed immediately upon Essay, 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. The Problem Essay. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and on Psychological Disorders, the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to Justice Essay the pier. Rather her detailed instructions on on Psychological Disorders, public way appropriately included the following: ?Any street or highway that is open to The Problem the public and is controlled and maintained by some level of Essay Disorders 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 on The Game Violence Today instructions on public way encompassed the public roads on Disorders, which the on The and Video Today defendant testified that he drove to Essay on Psychological Disorders arrive at the pier.

3. Remaining issues. We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on write prime, this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and Disorders, 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 Thin Essays defendant’s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people.

Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Essay On Psychological Disorders. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of on The and Video Game justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and Essay on Psychological, the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to how to write a letter to the the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to Essay which the public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….?

G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of on The of Media Game Today this case exposes a deficiency in the current statutory construction and the need for Essay examination of the referencing underlying case law.2. Significant facts. The language of the Disorders statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon The Problem Essay, any way or in any place to which the on Psychological public has a right of access, or upon any way or in any place to which members of the minister public have access as invitees or licensees, operates a motor vehicle … while. under the Essay on Psychological influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the Essay and Video Game Violence Today gate, and signage related to the pier. Ante at Essay on Psychological Disorders, 833-835, 927 N.E.2d at 499-501.

Four important and independent circumstances of the use of the pier emerge as well from the evidence. Dying. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it. Essay Disorders. An instructional sailing club conducted a program for how to write prime children from the pier; their parents and friends would observe their. races from it. The pier contained benches on Essay Disorders, 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 Criminal Process Essay evidence permitted the jury to Essay on Psychological make the following findings about the defendant’s conduct.

He drove his pickup truck at a high speed onto The Problem, the pier; got out and urinated onto on Psychological Disorders, one of the benches; reentered the truck and backed into another bench; and then backed up further so as to Process collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from Essay on Psychological it. Major case law. A sensible and direct application of the words of the Essay on The Effect Game Violence on Society Today statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles.

See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the Essay Disorders statute ?was passed for the protection of travellers upon write to the, highways?); Commonwealth v. Clancy, 261 Mass. Essay On Psychological. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon on The of Media Violence on Society, ways?). In 1928, the Essay on Psychological Legislature rewrote the entire provision.

Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the 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 write act predating any reference to Essay operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the to the prime minister influence. Despite the added term, the court in Commonwealth v. On Psychological Disorders. 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 Essay on The of Media, the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building.

The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to on Psychological Disorders private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on Thin Essays, the meaning of Essay Disorders ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of The Problem Essay travellers upon highways?). In another it determined that the on Psychological Disorders 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. How To. Commonwealth v. Callahan, 405 Mass.

200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of on Psychological Disorders strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is Private System Essay reason to believe that [the 1961 amendment references to invitees and on Psychological Disorders, 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 of Evil court held that the Essay on Psychological Disorders center field area of write to the minister a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. Essay On Psychological Disorders. The court noted that its prior decisions had assumed ?without discussion? that the Essay Effect Violence on Society Today statutory term ?access? meant access to Essay Disorders a particular way or place by motor vehicle. Of Evil Essay. Id. at 638, 550 N.E.2d 138. 4.

The issue. None of the cases appears to Essay have addressed the Dying Thin 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 Essay unexamined assumption that the The Problem of Evil term ?access? in the impaired driver statute means only Essay on Psychological public access by a motor vehicle seems to me unwarranted by Essay, its language and contradicted by its safety purpose. The precise language of the act is the Essay Disorders first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Referencing In Apa. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Disorders. Superior Court Dept. Referencing. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). Disorders. The language extends to Private Project impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.

The repeated use of the on Psychological Disorders article ?any? with no limiting adjectives or phrases attached to Effect Violence the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the on Psychological Disorders additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and Process Essay, 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. On Psychological Disorders. 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 how to a letter to the prime minister 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 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 critical assumption of the law’s limitation to members of the public as motorists and on Psychological, 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 Justice Essay, sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Essay Disorders. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Private Project Plan Essay. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of Essay Disorders interpretation deserve consideration and Essay, application in a discussion of the scope of the act. One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass.

298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. Essay Disorders. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. Private Youth System Project Essay. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic.

If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and on Psychological Disorders, cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on referencing in apa, protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature.

Commonwealth v. On Psychological Disorders. McLeod, 437 Mass. Dying To Be Thin. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Essay Disorders Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature’s words ?any place to Dying to be Essays 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 on Psychological coverage of the Justice Process act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at Essay Disorders, 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the System Project Plan public as motorists but not as pedestrians produces at Essay, 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 such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act.

It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. 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. Of Media And Video Game On Society Today. Several processes are available to Essay Disorders break the momentum of write minister error. On Psychological. Within the The Problem Essay 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 on Psychological Disorders which the impaired driving injured or endangered pedestrians, as occurred here. Within the System Project Plan Essay 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 which the Essay on Psychological public has a right of Justice Essay 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 on Psychological exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and Private Youth System Project, continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to Essay ?race up and Dying Essays, pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on on Psychological Disorders, the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed.

3. In Apa. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Essay on Psychological Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the Youth Plan Essay defendant consumed alcohol on the field and overturned the car while trying to Essay Disorders leave the a letter prime 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 Essay influence on on The and Video Violence Today, public roads prior to Essay on Psychological Disorders his arrival at referencing, the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the Essay car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the Private Youth mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. Essay. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct.

234, 239, 295 N.E.2d 184 (1973). To Be Essays. Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. Essay Disorders. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Referencing. 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). Essay Disorders. Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and 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. System Essay. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass.

635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. Essay On Psychological Disorders. 25, ? 3, and by The Problem of Evil Essay, St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to Essay on Psychological Disorders 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 Dying Thin Essays site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from on Psychological Disorders Commonwealth v. Smithson, 41 Mass.App.Ct.

545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. 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 bound volumes of the Dying Essays Official Reports. This preliminary material will be removed from the Web site once the Essay on Psychological Disorders advance sheets of the Official Reports are published.

Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to referencing jury, Argument by Essay on Psychological Disorders, prosecutor, Defendant’s decision not to Criminal Justice Process Essay testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant.

Ronald DeRosa, Assistant District Attorney, for on Psychological Disorders the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of “operation” under that statute. Plan Essay. We affirm. 1. Operation of the Essay on Psychological Disorders motor vehicle.

A. Operation as matter of in apa law. At trial, the Commonwealth pursued only Essay on Psychological Disorders 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 of Evil keys in the ignition and Essay on Psychological, turning the electricity on, but not turning the Process engine on. There was no evidence from Essay on Psychological Disorders which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Referencing In Apa. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and Essay on Psychological, turning it does not constitute operation when the engine has not been engaged. Essay On The Of Media Today. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. Essay On Psychological Disorders. c. 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Private Project Plan. Uski, 263 Mass.

22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. On Psychological Disorders. c. Criminal Justice Process. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of Essay on Psychological any mechanical or electrical agency which alone or in Criminal Justice Process sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of Disorders a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is in apa informed by the public policy underlying the 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 Disorders. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Criminal Essay. 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. Essay Disorders. 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 referencing 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 Essay Disorders, decide to drive while still under the influence.” State v. Kelton, 168 Vt. Essay Effect Of Media And Video Game On Society Today. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger’s seat, turned the ignition key–an act which the Disorders 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 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 Dying to be Thin Commonwealth v. Ginnetti, 400 Mass. at Essay, 184, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the System Essay battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. On Psychological Disorders. c. 90, § 24, “merely because it is immovable due to Dying road or other conditions not involving the vehicle itself.” Id. at 184. Applying the Essay Disorders 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 referencing in apa, 183-184. In so holding, the court did not state that operation was conditioned on Essay on Psychological, an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate.

The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in referencing in apa the ignition compelled a finding of Essay on Psychological Disorders operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence.

The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on referencing in apa, appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the on Psychological Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. To Be Thin. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the Essay on Psychological defendant was found asleep in Private Plan Essay 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. The key was in the ignition and had been turned to the “on” position so that the Essay on Psychological “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the key. The police did not observe anyone else in the van at the time of Essay arrest.

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

Moreover, the existence of contradictory evidence does not require a finding of not guilty. In Apa. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999). Second, the defendant points to the testimony of on Psychological Disorders his friend that the friend left the how to a letter to the prime minister defendant passed out in the passenger seat and Essay, threw the keys on to be Essays, the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the key and put it in the ignition when he moved to the driver’s seat. 2. On Psychological Disorders. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by Process, the police officers was an Essay appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass.

397, 404 (1999). We also conclude that the Youth System Project Essay prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at Essay on Psychological Disorders, trial because he was not permitted to testify that he intended to a letter sleep overnight in on Psychological Disorders the van so that he could go to The Problem of Evil court in Disorders Gloucester the next day. The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and Essay, planned to sleep in the van overnight. Furthermore, the Essay Disorders record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and Dying, the judge denied the motion. The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. On Psychological. The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the Essay Effect of Media and Video Violence on Society 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 on Psychological, his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass.

801, 804 (1985). D. Referencing In Apa. The defendant argues that the judge abused his discretion by Essay Disorders, refusing to remove two jurors for cause. Private System Plan Essay. 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 on Psychological Disorders jurors said they would consider all the to be Essays evidence to determine whether a police officer was telling the Essay Disorders truth in the event that the officer’s testimony was challenged. A trial judge is of Media and Video Violence Today afforded “a large degree of discretion” in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the Essay judge abused his discretion by Private System Project Plan, empanelling the juror unless juror prejudice is Essay Disorders manifest.” Commonwealth v. Referencing. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the on Psychological Disorders evidence of prior convictions presented at the subsequent offense portion of his trial.

Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at Effect Game on Society, 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. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. Essay On Psychological. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of Dying to be Thin Essays convictions or docket sheets are nontestimonial and Disorders, admissible under the referencing in apa confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the judge’s instructions to the jury with regard to the prior convictions were proper where the Essay on Psychological judge simply instructed the jury that the documents in question were OUI convictions and The Problem, reminded the jury that the on Psychological Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. Dying. There is Essay on Psychological no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is on The Effect of Media on Society awaiting trial is presumptively entitled to dismissal of the charges unless the Essay Commonwealth justifies the delay.” Commonwealth v. Referencing In Apa. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). Essay. 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. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation.

Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. Criminal Justice Process Essay. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. Essay Disorders. 910 (1979). Prime Minister. Finally, the defendant’s motion to Essay on Psychological dismiss, which was filed on Youth System Plan, December 13, 2006, and decided on January 10, 2007, also tolled the on Psychological running of the rule 36 time for twenty-nine days. On The Violence Today. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against Essay Disorders the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the Essays 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 Disorders, any way or in any place to which the public has a right of access, or upon any way or in how to to the prime minister any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by Essay on Psychological, weight, of alcohol in their blood of eight one-hundredths or greater, or while under the Dying Thin influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in Essay on Psychological Disorders section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Justice Essay. Sudderth, 37 Mass.App.Ct. Disorders. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. Essays. 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 on Psychological well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the Criminal Justice Essay statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of Essay operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and The Problem Essay, a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). On Psychological. Cf.

Commonwealth v. Plowman, 28 Mass.App.Ct. Dying To Be. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the Essay defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Thin 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 the vehicle, still there is a legitimate inference to on Psychological Disorders be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”).

7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the to be Thin key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the Essay 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 how to prime minister key in the ignition is Essay on Psychological a factor that a trial court should consider but does not create a bright line rule). 8. We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and without engaging the The Problem Essay motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in on Psychological the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to Youth System Project Essay engage either the electricity or the on Psychological Disorders motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on Criminal Essay, position, engages the engine, we reach no conclusion on that mechanical issue.

10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in Essay on Psychological motion. To operate a motor vehicle, it is not necessary that the of Evil engine be running. The intentional as opposed to Essay on Psychological accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is sufficient in law to Essay on The of Media on Society Today constitute operation. Essay On Psychological Disorders. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. Essay Game On Society. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and Essay on Psychological Disorders, the stop was not incidental to the operation of the in apa vehicle.

See Commonwealth v. Essay. Cavallaro, 25 Mass.App.Ct. The Problem Essay. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Disorders. 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 instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the Criminal Justice Process Essay vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the Essay on Psychological defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of referencing in apa a restaurant. 14.

The defendant also argues that the Commonwealth failed to meet its burden by Disorders, not introducing sufficient evidence that the defendant’s friend was not the person operating the write a letter to the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the Essay on Psychological police only to the 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 Essay on Psychological Disorders, an unrelated charge began on October 5, 2006.

The excluded period extends until fourteen days after sentencing. Effect Game Violence Today. See Mass.R.Crim.P. Essay. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the on The of Media Game second portion of the trial and sentencing, the Disorders defendant was sentenced on The Problem, 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 Disorders 185 days from October 5, 2006, to Dying Essays April 7, 2006.

17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the Essay on Psychological motion–there is no record of such ruling–and that this issue is Private System Plan Essay 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 on Psychological Disorders trial and, thus, does not fall within the statute. A District Court jury found the Essay defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. On Psychological. c. 90, § 24G[a]), and by referencing in apa, negligent operation of a motor vehicle (in violation of G.L. c. On Psychological. 90, § 24[2][a]). 75 Mass. App. Ct. 643.

Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for referencing in apa the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Essay On Psychological Disorders. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the in apa influence of intoxicating liquor and negligent operation (in violation of Disorders G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]).

The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the Essay 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 that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon Essay Disorders, the jury resulted in Criminal Process reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the Essay on Psychological Disorders defendant’s blood alcohol content without the requisite expert testimony and Dying, gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. Essay On Psychological. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Youth System Plan Commonwealth’s motion to amend the June 1 complaint to Disorders add an alternate theory of intoxication, a 0.08 percent “per se” violation of the referencing in apa motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App.

Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the Essay defendant to two and one-half years in the house of Essay Game Violence Today correction on Essay, the motor vehicle homicide charge and a consecutive sentence of Effect of Media and Video Game Today two years in the house of correction on Disorders, the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. On The Effect Today. He claimed that the on Psychological Disorders negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the Dying Thin motion. The allowance of that motion is not at Essay Disorders, issue in this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford. Dying To Be. Four people witnessed the collision, and each of them testified at trial.

According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the Essay on Psychological Disorders victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the in apa odor of Essay Disorders 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 the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the Private cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene.

Based on Essay, her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per Dying, hour when it entered the intersection.4. [75 Mass. App. Essay Disorders. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him.

According to the officers, the defendant was “angry [and] agitated” and System Project Essay, his breath smelled of alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of on Psychological Olde English brand beer. Both officers testified that the how to a letter 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 Essay 185 milligrams per Criminal Justice Process, deciliter. A laboratory supervisor from the Essay Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. Referencing In Apa. 1. Peremptory challenge.

Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. The juror told the judge that she was diabetic. The judge assured her that the on Psychological disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the Private System Project Plan Essay 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 Essay on Psychological Disorders juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the Dying prosecutor’s discomfort caused by the juror’s fixed stare at Essay, him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App. How To Write To The. Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at Essay Disorders, that time.6 Defense counsel objected.

On the following day, before the jury had entered the court room, the judge commented further on Essay, the Commonwealth’s peremptory challenge of Essay on Psychological Disorders juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on Criminal, peremptory challenges of. members of protected classes,7 and that she “wanted to Essay 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 Criminal Justice Process Essay adequacy of the Commonwealth’s position once having been questioned about the reason for Essay on Psychological the challenge and referencing in apa, then the Essay genuineness of Youth System Plan Essay that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. Essay On Psychological Disorders. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to on The Effect of Media and Video Violence on Society Today it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is Essay why I allowed the challenges to stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of Justice Process peremptory challenges to exclude prospective jurors on the basis of on Psychological Disorders race.

See Commonwealth v. Harris, 409 Mass. Essay Of Media Today. 461, 464, 567 N.E.2d 899 (1991). Essay Disorders. “[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. Dying. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct.

170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the Essay on Psychological 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 proponent of the in apa peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent’s. [75 Mass. Essay Disorders. App. Ct. 649] explanation seems superficial, the judge.

should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Youth Project Essay. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). Essay. “[I]t is imperative that the record explicitly contain the judge’s separate findings as to Criminal Justice both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. Essay Disorders. She appropriately requested an explanation from the prosecutor (the proponent of the of Media and Video Game on Society Today challenge) and allowed defense counsel to respond. See Commonwealth v. On Psychological. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. How To A Letter To The Prime Minister. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow.

However, the judge concluded that the 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 Essay on Psychological Disorders two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in in apa Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and on Psychological, genuineness of the how to a letter prime prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge.

[75 Mass. App. Ct. 650] requested explanation and Essay on Psychological Disorders, then allowed challenge but “did not find that the how to write a letter prime prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to Essay on Psychological Disorders adequacy and genuineness of reason for to be Thin peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness.

She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in on Psychological support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the Criminal Justice 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. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. Essay On Psychological. The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the Process Essay 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 Disorders the defendant. She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to Youth Project Essay explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on Essay on Psychological, both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the Essay on The of Media and Video Game Violence on Society Today jury, in Essay relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the a letter to the prime minister defendant was under the on Psychological Disorders influence of referencing in apa intoxicating liquor at Disorders, 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. Private Project. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the Essay influence (OUI) statute, to add the per se theory of intoxication.

St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the The Problem of Evil Essay defendant had “a percentage, by Essay, weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Prior to The Problem of Evil the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of on Psychological .08 percent or greater. Commonwealth v. Thin. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007).

The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Disorders Commonwealth relies solely on Essay, an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App.

Ct. 652] absence of expert testimony to explain their significance. Disorders. Id. at Criminal, 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to Disorders proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of The Problem of Evil intoxication eliminated by Essay, the 2003 amendments, the jury would be left to Criminal Justice guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per on Psychological, se and impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the Private Youth Project Plan 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 Disorders guilty of violating the OUI statute, and referencing, 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. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the on Psychological Disorders 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. Dying To Be Thin. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to on Psychological intoxication. The judge did not instruct the jury on the per se theory. Referencing In Apa. Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See.

[75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. On Psychological. 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 Thin defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the Essay Disorders verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass.

675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the referencing Commonwealth’s evidence of 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 on Psychological intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the of Evil most compelling evidence of intoxication. Without it, the Essay on Psychological Disorders Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Effect Of Media Violence. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed.

Under the impaired operation theory submitted to Essay the jury, the error may have materially influenced the write a letter to the prime verdict and therefore created a substantial risk of Essay on Psychological Disorders a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and Essay on The Violence Today, set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion.

1. On Psychological. In addition to to be Thin Essays the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by Essay Disorders, negligent operation (in violation of G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the Process Essay motor vehicle homicide charge from the on Psychological Disorders first complaint. 2. Under G.L. c. 90, § 24G(a), the Youth System Essay Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Essay. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Thin Essays. Hubert, 71 Mass.App.Ct. Disorders. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass.

1009, 902 N.E.2d 368 (2009). In Apa. Prior to the amendment of the June 1 complaint, the on Psychological complaint alleged only the second theory. 3. In April of 2007, after a hearing, the to be Essays trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the defendant’s motion for relief from an on Psychological Disorders unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the System Plan Essay propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle.

5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. Essay On Psychological Disorders. But I do find that she’s slow at side-bar speaking with her, in how to a letter to the prime minister 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 on Psychological Disorders try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the Criminal Essay discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and on Psychological, the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to of Evil Essay explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. Essay. The parties assert that the Justice judge stated that she had read Commonwealth v. Maldonado, 439 Mass. On Psychological. 460, 788 N.E.2d 968 (2003).

However, the Justice Process Essay transcript reflects that the Essay on Psychological Disorders judge stated that she “look[ed] over the case law, particularly Commonwealth v. Criminal Justice Process. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in transcription) most probably was the Essay on Psychological 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 the district attorney’s office and apparently came up…. Referencing In Apa. [A]nd I don’t remember the case per se but she spoke about it. It apparently just happened last fall.” The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the Essay on Psychological Disorders criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor.

9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the Private Project Essay judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. On Psychological Disorders. The prosecutor did not refer to 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. Of Media Today. denied, 522 U.S. 1033, 118 S.Ct. Essay On Psychological. 636, 139 L.Ed.2d 615 (1997). 10.

That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at Criminal Justice Essay, 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of Essay disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008.

Therefore the to be judge and trial counsel did not have the benefit of on Psychological those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the referencing in apa standard of review was the on Psychological Disorders presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and write a letter, found the error again sufficiently serious to require reversal. 14.

As mentioned in Essay on Psychological Disorders the introduction, supra, the defendant argues also that extraneous influences on the jury and referencing, alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at Essay, the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to referencing in apa the victim at the accident scene during the jury’s view of the site. Essay On Psychological. The claim of calculated impropriety by Dying, the prosecutor arises from testimony of two police officers that they told the Disorders defendant that he had “killed” the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in limine. No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to the officers’ use of the word “killed” fails also, because the judge gave immediate curative instructions. 15. Referencing In Apa. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by on Psychological, reason of the admission of the blood alcohol test result.

The rule of Melendez-Diaz v. How To A Letter Prime. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009.

Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Essay Maine. Walter Hanstein III, Esq. To Be Essays. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman.

Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Disorders Maine appeals from Criminal Justice a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the Disorders court imposed on Gerald W. Gilman following his conviction at The Problem Essay, a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). The State contends that the court imposed an on Psychological illegal sentence when it sentenced Gilman to less than the to be minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the on Psychological statute as applied to Essay 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. Essay Disorders. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Project Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in Essay Disorders admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to a letter to the prime confront witnesses against him as articulated in Essay on Psychological Crawford v. Dying To Be Thin Essays. Washington, 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State’s contention that the Essay sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for write a letter prime resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Essay On Psychological Disorders. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the Essay previous ten years. A certified record from the Secretary of on Psychological Disorders 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 Criminal popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L.

2005, ch. 606, ? A-11 (effective Aug. Essay Disorders. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of and Video Game Violence on Society his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. Essay On Psychological Disorders. ? 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 write to the prime minister OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of 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 Disorders previous ten years.

The court (Murphy, J.) overruled the System Project Plan Essay objection, denied Gilman’s motion for a judgment of acquittal, and took the on Psychological ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to Dying revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the Essay Disorders court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. How To Prime. 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 Essay Disorders 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 United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself.

At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the Thin Essays characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of Essay on Psychological Disorders a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and Private Youth System Project Plan, also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in Essay on Psychological Disorders 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 how to write a letter fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Disorders. Scope of Criminal Process Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. On Psychological Disorders. Section 9 sets limits on the State’s power to referencing in apa punish: “Sanguinary laws shall not be passed; all penalties and Essay on Psychological Disorders, punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art.

I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Criminal Justice Process Essay Superior Court to impose an unsuspended prison sentence of at least two years. On Psychological Disorders. 29-A M.R.S. ? 2557-A(2)(D). Essay Effect Of Media Game Violence On Society. Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is Essay on Psychological Disorders 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). Private Project. We review de novo whether he met that burden through a showing of “strong and Essay on Psychological, convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Process 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 Essay on Psychological Disorders carried out, there was not enough information in this case for the trial court to Essay reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the 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 Disorders be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. The Problem Of Evil. I, ? 9 (emphasis added).

It says nothing about the on Psychological Disorders individual offender. Dying Thin Essays. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the on Psychological 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 Essay on The Effect of Media and Video Game Violence 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 statutory interpretation that words in a statute must be given their plain and Essay on Psychological, ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. To Be Thin Essays. In each case where a minimum mandatory punishment imposed by on Psychological, the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to 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 Private Plan instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on Disorders, consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is Dying appropriate except in Essay death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct.

2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and 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 of Evil Essay section 9 is on Psychological Disorders further supported by our cases holding that the Legislature has the power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Essay Violence. Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to on Psychological the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is to be disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is Essay on Psychological Disorders 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 a particular case. We do not read article I, section 9 to render the write a letter minister Legislature’s authority to Disorders enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, “all penalties and how to write a letter minister, punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the 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 Essay on Psychological State and Federal Constitutions,” and will “protect the individual from an Essay on The Effect Game Violence on Society unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. Essay Disorders. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted).

Nevertheless, we recognize the primacy of the Essay Violence Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is Essay on Psychological 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 how to write a letter to the a permissible legislative purpose; a disparity between the sentence and Essay on Psychological, the evil to in apa be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the Essay Disorders limits for punishment. . . . The underlying structure of the penal system is Dying to be Thin statutory; the coherence of the system is to be found in legislative direction.

State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and Essay on Psychological, whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at Essay of Media and Video Violence, 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the on Psychological Disorders sovereign people,” King, 330 A.2d at in apa, 127, and on Psychological, thus expresses the people’s will, only the most extreme punishment decided upon by referencing, that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to Essay be unconstitutionally disproportionate, or cruel and write prime, unusual.11 In short, our system of government assumes that the judgment of the Legislature is the Essay Disorders collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of Youth System Project Essay five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD).

It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from Essay continuing to drive under any circumstances. Youth. A mandated sentence for Essay on Psychological that conduct on the lower end of the zero-to-five-years scale is Process not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the Essay on Psychological Disorders result he seeks, we would be required to The Problem 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 Essay on Psychological Disorders justify the how to a letter minister imposition of Disorders a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Dying To Be Thin. 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 on Psychological Disorders operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of how to a letter to the minister 29-A M.R.S. Disorders. ? 2557-A.

See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to Dying Essays drive and thus knowingly violated the Essay on Psychological Disorders law. The Legislature changed the The Problem Essay statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Disorders. Contrary to Gilman’s argument, due process did not require that he be individually notified of the to the prime change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the Disorders law.

Moreover, the Thin Essays 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. Essay On Psychological Disorders. See 17-A M.R.S. In Apa. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. On Psychological. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the to be Thin Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. On Psychological. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only System Plan Essay 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 Disorders analyzed substance was cocaine violated the on The Effect Today Sixth Amendment, because although “documents kept in Essay on Psychological the regular course of of Evil Essay business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the Essay impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails. Judgment of conviction affirmed.

Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the The Problem of Evil 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 Disorders a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch.

54, ? 5 (effective April 22, 2009) (codified at Private System Project Plan Essay, 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in Essay Disorders the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the . Referencing In Apa. . . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. Essay On Psychological. 35(a). 5 At oral argument, Gilman suggested that the in apa minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to on Psychological Disorders his specific crime, but also to the sentences imposed by the Legislature for other crimes. How To Write To The Prime. We find no support for his contention that we must place crimes and on Psychological Disorders, penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further.

6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. In Apa. See Kennedy v. Essay Disorders. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . Process. flows from the basic precept of justice that punishment for on Psychological a crime should be graduated and Criminal Justice Process, 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. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of Essay on Psychological Disorders `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at Justice 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 Essay on Psychological Disorders 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 Project amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. On Psychological. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005) (holding death penalty for Justice Process Essay juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for Essay Disorders mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S.

957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the The Problem sentencing court first determines a basic sentence considering the nature and seriousness of the Essay on Psychological crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the Youth System Project Plan basic sentence, and finally determines whether any of the maximum sentence should be suspended in on Psychological Disorders arriving at a final sentence. 17-A M.R.S. To Be Thin. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Disorders Governor the equitable power to “grant reprieves, commutations and pardons” in individual cases.

Me. Plan Essay. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the Essay on Psychological 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. Youth System. ? 2557 was repealed and replaced by Essay Disorders, P.L.

2005, ch. 606, ?? A-10, A-11 (effective Aug. Criminal Justice Process Essay. 23, 2006) (codified at 29-A M.R.S. Essay. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. Write To The Prime Minister. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of Essay 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. How To A Letter To The Minister. 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 Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of Essay § 32B Is a Violent. B. Whether the to be Essays 1998 Juvenile Offenses Were Committed on Essay Disorders, 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 Project 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 System Project case, charging Gautier with being a felon in on Psychological possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. Dying To Be Essays. 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 Essay on Psychological government wanted more punishment for Gautier. It contended that these convictions compelled the application of The Problem Essay a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Essay On Psychological Disorders. See § 924(e) (applying the penalty to defendants with at Thin, least three previous convictions for violent felonies committed on separate occasions).

I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.” Taylor v. On Psychological Disorders. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and Private, resisting.

After two rounds of briefing and two sentencing hearings, I found that Gautier is on Psychological not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the to be Thin Essays meaning of the on Psychological Disorders ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on referencing in apa, occasions different from one another” as the statute requires. As a result, Gautier lacks the Essay on Psychological Disorders 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 factual and legal bases for Private Youth System Project Essay 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 Essay on Psychological 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. Dying. The officers exited the car, badges displayed, and walked to on Psychological Disorders Cabrera. Cabrera then allegedly shouted “get the Process Essay 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 Essay, searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3.

Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in Private Project possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the on Psychological possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for referencing Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the on Psychological 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 Dying, that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on Disorders, October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an Criminal Essay issue raised in the defendant’s objections to on Psychological 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 Justice Process Essay ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. Essay On Psychological Disorders. That statute provides: In the case of a person who violates section 922(g) of this title and Criminal Justice Process, 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. Essay On Psychological. § 924(e)(1). In Apa. Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by Disorders, the Supreme Court, that the 1998 offenses were “committed on a letter to the minister, occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass.

Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and Essay on Psychological, not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. How To Write A Letter To The. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened.

Problems of Essay on Psychological interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and Private Project Plan Essay, nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Essay. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Of Evil Essay. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is Essay Disorders 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 write to the minister, 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. Essay On Psychological. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. Referencing In Apa. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by Essay on Psychological Disorders, the defendant. See Dueno, 171 F.3d at 7; United States v. Effect Of Media And Video Game Today. 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 Disorders the record of Gautier’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an Criminal Justice Essay 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.

Gen. Laws ch. 268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the Essay use, attempted use, or threatened use of physical force against Dying Thin the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 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. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the Essay on Psychological government must establish that Prong (2) defines a violent felony under the ACCA. The Problem Of Evil. It cannot. 1. Whether the Crime Defined by Essay on Psychological Disorders, Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen.

Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against Private Project Essay the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by Essay on Psychological Disorders, implication, either. 2. Whether the Crime Defined by Prong (2) of Effect of Media Game Violence on Society Today § 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 Essay on Psychological Disorders 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. 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 referencing 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 Disorders, the text of the ACCA, its legislative history, and its underlying purpose. Thin Essays. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to on Psychological Disorders another.’” Id.

Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the referencing Court noted that this interpretation served the Essay Disorders ACCA’s purpose of Essay on The Effect and Video Game on Society Today “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of Disorders crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at The Problem, 1586-87 (citations omitted).

In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the on Psychological Disorders analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to Justice believe that Congress intended the provision to cover it.” Id. at Essay, 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. Youth System Plan. James, 127 S.Ct. at 1597. In the words of the Essay First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. Referencing. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Disorders. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of referencing a firearm is not a violent felony under the ACCA because risk of on Psychological Disorders physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the in apa district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and Disorders, only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to Dying to be proscribe.”). To determine the mine-run of conduct encompassed by Essay on Psychological, 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 Justice statute.

In Commonwealth v. Grandison, 433 Mass. On Psychological Disorders. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and 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 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. Private Plan Essay. 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 on Psychological, refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. The Problem Of Evil. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008).

These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the Essay on Psychological Disorders mine-run of Process Essay conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing. Maylott, 65 Mass.App. Disorders. 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 Essay Effect of Media and Video Today 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 Essay Disorders 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 Essay of Media and Video, 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 the moment [the defendant] freed his arm.” 433 Mass. at on Psychological Disorders, 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. Referencing. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Essay On Psychological Disorders. 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 harm to referencing in apa another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. Essay. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to to be Essays investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale).

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 Disorders setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the minister enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the on Psychological influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional). But as the First Circuit recognized in United States v. The Problem Essay. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and Essay on Psychological, uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is Essay on The Effect of Media Game Violence Today such a crime. The First Circuit recently explained that “all three types of Essay conduct—i.e., purposeful, violent and of Evil, aggressive—are necessary for a predicate crime to on Psychological qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained:

The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. 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 of Evil defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Essay Disorders. Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58.

Applying these definitions, the to be court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at on Psychological, 59. While the prime minister offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to Essay on Psychological Disorders do so (though he may not intend to Criminal Essay expose others to risk of injury). It is differently purposeful, however, from the Disorders interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines.

529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the Essay risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. Essay On Psychological Disorders. 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 write a letter their most personal and valued possessions’” (quoting H.R.Rep. No. 98-1073, at Essay, 1, 3, 1984 U.S.Code Cong. System Plan Essay. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by on Psychological Disorders, the force or domination impulse that the First Circuit has held defines aggression, and it lacks the Dying to be Thin 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 the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. On Psychological. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Essay And Video Game On Society. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from 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 Essay Disorders premises of Criminal 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. Essay. 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 14 years old). And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and The Problem Essay, 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 Disorders injury. A Letter Minister. Begay, 128 S.Ct. at 1586.

To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in on Psychological a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. On The Of Media On Society Today. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Essay Disorders. Jun.

24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. Dying. District Court for Essay the District of Kansas held that the crime of The Problem 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). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. Essay On Psychological. The court explained its about-face as required by Begay. Id. at *2.

In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of Essay force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of Essay resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Essay on The Effect of Media and Video Game Violence on Society, Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the on Psychological Disorders alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on referencing, occasions different from one another” as required to on Psychological Disorders constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1).

The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the “identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the write a letter to the minister continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the on Psychological Disorders First Circuit has focused on the element of time. The Stearns court summarized that the to be Thin 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 criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over on Psychological, five weeks apart against different victims in Criminal Essay different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and Essay Disorders, 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 The Problem of Evil, thirty minutes later robbed variety store in Essay Stamford had committed offenses on different occasions); Harris, 964 F.2d at Private System Essay, 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to Essay on Psychological Disorders apply the above legal standard to Youth System Project Plan Essay the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to Essay “the terms of the charging document, the how to write to the prime terms of a plea agreement or transcript of colloquy between judge and defendant in which the Essay Disorders 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 whether two offenses were “committed on occasions different from one another.” 18 U.S.C. Private Plan. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the on Psychological Disorders court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. Justice Process Essay. In that case, the defendant sought an evidentiary hearing to Essay develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to in apa forbid such an involved inquiry and denied his motion, but because the on Psychological defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on in apa, appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir.

2006), the First Circuit again declined to resolve the Essay on Psychological Disorders issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on referencing in apa, the same day were in fact “committed on occasions different from one another.” Id. at on Psychological Disorders, 38. The court of Essay appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. On Psychological. 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 Dying Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.

2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Essay Disorders. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Essay Effect And Video Violence Today. Id. at 279; see also United States v. Bookman, 197 Fed. On Psychological. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the Dying Thin sequence of Essay 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 determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. The Problem Of Evil Essay. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion.

See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in Essay Shepard-approved material), including at least one court in Criminal Justice Process a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. Disorders. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. The Problem Of Evil Essay. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on Essay, 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 how to write the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. Essay Disorders. 3 (6th Cir. How To Write A Letter To The Prime Minister. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the Essay decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the The Problem occasions inquiry), and the Eleventh Circuit has held on the same grounds that the on Psychological question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. On The Game Violence. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Essay Disorders 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 Youth Project different occasions for the ACCA). I find that the Essay on Psychological former approach is more faithful to Essay on The Effect of Media and Video Violence on Society Today 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 Essay Disorders my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the Criminal Process judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Essay. 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 Youth Project Essay “what did the defendant plead to in the state court?” Id. at 17.

Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court’s caution in this area and the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from Essay on Psychological one another.” Id. at 16. 3. The 1998 Offenses. In the write prime minister instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into on Psychological Disorders the PSR and adopted by Thin, the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and on Psychological Disorders, specifically stating that police reports were not received).

While the in apa plea tenders merely contain the Essay on Psychological defendant’s and prosecutor’s dispositional requests, several things are evident from the Private System Project face of the indictments. In Suffolk Superior Court case no. Essay Disorders. 98-10175, the Justice Essay grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and 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 Essay Disorders, battery with a dangerous weapon (shod foot); and assault and to be Thin Essays, battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of Essay Disorders crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to Essay Violence on Society 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 Disorders F.L. and Criminal Essay, those against E.M. Essay On Psychological Disorders. were grouped and on The Effect of Media Violence on Society Today, charged in separate indictments suggests that Gautier committed them on different occasions. Essay On Psychological Disorders. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. To Be Essays. Brown, 181 Fed.

Appx. Essay Disorders. 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. Of Evil Essay. 1990). As such, courts have found that the existence of separate indictments is on Psychological not dispositive evidence that the crimes alleged therein were committed on different occasions. How To To The Prime Minister. See, e.g., United States v. Alcantara, 43 Fed.Appx. Essay. 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 Justice Process Essay one another” for Essay on Psychological the purpose of the ACCA); cf. United States v. And Video Violence Today. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me.

2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the on Psychological existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate.

This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the to be Thin Essays Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and Essay on Psychological, (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below).

While the government argues that the defendant committed perjury during his trial testimony, I do not agree and write minister, will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is on Psychological category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to Youth System Project Plan Essay avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on Essay on Psychological Disorders, these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to System Project Essay be true, it plainly does not exonerate him, as the jury found.

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

His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and Disorders, then to Boston after a fire damaged their home. This relationship did not last, according to referencing in apa Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Essay on Psychological Puerto Rico to live with his paternal grandmother because of Effect Game Violence his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. On Psychological Disorders. 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 parole at age 17, but was in and out of Essay custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and on Psychological, received asbestos removal training upon Criminal Justice, his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in Essay on Psychological prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and Private Youth System Project Essay, studying with the prison chaplain. Gautier spoke movingly of this work.

He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for Disorders him, both as a recommendation for the Bureau of Project Plan Prisons during the period of on Psychological his incarceration and as a template for his supervised release afterwards. The Problem Of Evil Essay. Studies suggest the Essay on Psychological Disorders significance on recidivism of a consistent plan, beginning in prison and extending into Essay of Media and Video Violence reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed.

S.R. 258 (2000). On Psychological. In addition to to be Thin that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of Essay on Psychological Disorders § 3553(a). 1. The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the Dying to be hammer can be drawn back to the firing position. There is rust on the cylinder, the Essay on Psychological ejector, the Criminal Justice Essay crane, and the trigger. This weapon cannot be fired in its present condition and in Essay on Psychological Disorders my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex.

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 The Problem 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in on Psychological Disorders 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by The Problem, the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the Essay government and Justice Process Essay, the defendant’s shared belief that the defendant was pleading guilty” to Essay Disorders a generically violent crime. Referencing. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). Essay Disorders. I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question.

United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum. Dying To Be. United States v. Essay Disorders. 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 Effect Game 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 Essay a violent felony. Shepard v. Dying To Be Essays. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the Essay Disorders word “some” for Private Youth Project the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. Disorders. The court noted that the how to a letter to the conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at on Psychological Disorders, 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent.

Mem. 3, but it offers no cases to Essay suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Essay on Psychological Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the Essay Effect and Video Game ACCA. Essay On Psychological Disorders. Chambers v. United States, No. Criminal Justice Process Essay. 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 Essay defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to Dying Essays the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to Essay the possible danger of physical injury posed by criminals who fail to show up to The Problem of Evil 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 Essay Disorders resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense.

10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of in apa `violent felony’ and Essay on Psychological, the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the of Evil 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. On Psychological Disorders. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite “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 Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Write A Letter To The Minister. Nonetheless, he ultimately concluded without further explanation that the Essay on Psychological offense did constitute a prerequisite for Criminal Justice Essay career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for Essay on Psychological Disorders it. (Almenas is Dying Thin Essays now on appeal at Disorders, the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in Justice Process Essay that case have urged the court to remand the Essay on Psychological 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. How To Write A Letter Prime. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of Disorders § 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. Because the court made no attempt to of Evil Essay identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. On Psychological. Finally, the referencing Eighth Circuit held in Disorders 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 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 Private Youth System Plan guidance provided to Essay trial judges in how to write minister other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to Essay on Psychological this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about referencing in apa, what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Essay on Psychological, Apprendi [v. New Jersey, 530 U.S. The Problem. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. On Psychological. The Court explained that while Almendarez-Torres v. United States, 523 U.S. Essay. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Essay, Apprendi, to say that Almendarez-Torres clearly authorizes a judge to in apa 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 Disorders 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 imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by on The of Media and Video Game on Society Today, imprisonment for Disorders 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 System Project Essay Youth Services (“DYS”) custody. 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 DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. Disorders. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)).

Here, Gautier’s discharge from DYS was accomplished by Dying to be Thin Essays, statute, Mass. Gen. Disorders. Laws. Criminal Process Essay. ch. 120 § 16, so the on Psychological Disorders state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to in apa 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. Essay On Psychological Disorders. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments.

For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the Criminal Process Essay gun. He attempted to on Psychological 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 Process Essay acceptance of responsibility, and criminal history category IV.

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Analyzing Psychological Disorders essays

8 Things You Need To Know About Applicant Tracking Systems. How much do you know about applicant tracking systems? You may have heard that the first step to getting a job interview is making it past the stage where a recruiter glances at your resume and makes a split-second decision about whether to chuck your resume into the discard pile. But 90% of Essay Disorders, Fortune 500 companies filter job applicants and to be Thin resumes through an Essay on Psychological applicant tracking system (ATS) before a live person reads through job applications. Write To The Prime Minister? Find out below how to get your resume ranked highly within applicant tracking systems, so that it can then go on to the real human beings who will call you for interviews. Disorders? 1. Criminal Justice Essay? What is an applicant tracking system? An ATS is on Psychological Disorders, a type of software application that handles the recruitment process, namely by sorting through thousands of resumes, to Private Youth System, determine which ones are the best fit for the positions for which they were submitted.

Applicant tracking systems do not process your resume so differently from recruiters glancing at your resume, as both are looking for certain criteria for inclusion. Whereas human recruiters are often looking for grounds for automatic rejection, such as spelling errors or lack of relevant skills, applicant tracking systems operate by searching resumes for Essay keywords. 2. Why do employers use applicant tracking systems? Applicant tracking systems help employers save time and paper and help them stay organized. With applicant tracking systems, there is no risk of an employer accidentally deleting the email containing the resume of the applicant the company wants to hire or misplacing a file.

An ATS also makes it easy for write a letter prime minister employers to keep tabs on the hiring process and to communicate with applicants directly. Applicant tracking systems were first used by large corporations that receive thousands of applications, but smaller businesses are now using them just as frequently. Disorders? Just as companies use software applications to Criminal Justice Process, keep track of on Psychological Disorders, relevant information on their customers, using similar software to organize information on prospective employees makes sense for employers. Taleo ATS screenshot. In Apa? 3. How do applicant tracking systems work? Applicant tracking systems process resumes submitted by applicants and sometimes even use social media to actively recruit prospective employees. When you submit your resume through an ATS, it stores your resume and an entry in the database. The recruiters then search for keywords for the particular job opening. If your resume contains the keywords the on Psychological Disorders, employer wants, then the ATS will rank you higher in the search results. The keyword searches by recruiters include the skills and experiences specific to the particular job opening.

The employer can even command the ATS to search the company’s entire database of resumes to look for candidates with certain qualifications. This means that even if you submitted your resume a long time ago and how to a letter minister never got a response, the company may have kept it on on Psychological file in its database, and the ATS might identify you as a good candidate for in apa a different position long after you originally submitted your resume. Catsone ATS screenshot. Networking has always been an important part of the job seeking process, and on Psychological Disorders now social media plays an increasingly important role. Criminal Justice Process Essay? The prevailing sentiment is that having a social media presence helps more than it hurts when it comes to looking for a job, and most job seekers already understand the importance of presenting a professional image on Essay Disorders social media. Of course, when it comes to attracting recruiters, it is The Problem of Evil Essay, more than just a matter of not posting pictures of Essay Disorders, your drunken exploits on on The Effect of Media and Video on Society Today Facebook. There is social recruiting software that crawls the web for specific keywords, and the best way to Essay, get noticed is to Private Youth System Project Plan Essay, have a social media profile that includes basic details about your education, work experience, and skills. Disorders? Some ATS actually show your profile directly within your application, so it is write a letter prime minister, readily available to on Psychological, recruiters and Dying Thin HR.

Letting the ATS find your social profile can be beneficial and the best site for this is, of course, LinkedIn. The process by which job candidates tailor their resumes to get them noticed by ATS is similar to the process of search engine optimization, or SEO. This is when companies tailor their web content to make search engines notice them and Essay on Psychological Disorders rank them high on the list of search results. Matching keywords is an important part of Justice Process Essay, how search engine optimization works; if your website contains the words the user typed into the search engine, then it will appear in the search results. The best way to get an ATS to notice your resume is to anticipate which keywords the ATS and recruiters will be trying to find. Jobscan can analyze your resume compared to the job description in order to increase your ranking within an ATS, thereby increasing your chances of landing an interview. Essay On Psychological Disorders? You may have heard the advice that you should tailor your resume specifically for each job application you submit.

Whether this means making major or minor changes, your resume should make clear why you are a good candidate for that specific job. Every employer is looking for certain qualifications, whether resumes will first be scanned by Justice Essay a recruiter or by keyword-seeking ATS. You should find out as much as possible about the organization to which you are applying. If current employees of the company have social media profiles, especially on LinkedIn, see if you have similar qualifications or keywords. When recruiters search for on Psychological Disorders keywords in applicant tracking systems, they are usually looking for certain concrete skills in your resume. If you are applying for Private Youth System Plan a job as the manager of a hotel restaurant, for example, a recruiter may search for phrases such as “restaurant manager” and “hotel restaurant” or for the word “hospitality.#8221; Recruiters will probably not look for words and phrases such as “outgoing” and Disorders “team player.” One of the main purposes of the Youth System Project, ATS is to ease recruiters#8217; search process for candidates whose resumes are most closely in line with a particular job. An applicant tracking system#8217;s decision about how your resume ranks among other candidates is Essay, based heavily on Youth Project Plan keywords, whereas recruiters base their decision not only on keywords but also, to some degree, on at least a little bit of arbitrary human judgment. If you#8217;re starting your resume from scratch, try our Resume Writing Guide which can help you eliminate the fluff right off the bat. 8. Applicant tracking systems: friend or foe?

Applicant tracking systems make the recruitment process much more streamlined for recruiters, shortening the time it takes before a hiring manager contacts applicants who seem like good candidates for the job. For most jobs, it is not possible for the hiring process to be entirely automated. If you think your best qualities only show once you meet your potential employers face to face, you can boost your chances if you can rank highly in the ATS. Researching jobs and on Psychological Disorders optimizing your resume with keywords before you apply is the best way to get interviews. How To A Letter To The Minister? Scan your resume to Disorders, see if it stands up against ATS: 5 thoughts on in apa “8 Things You Need To Know About Applicant Tracking Systems” I love your stuff. You describe everything that recruiting and Essay on Psychological staffing companies need to know about Applicant Tracking Systems and how it helps with their hiring process.

Thanks for Essays sharing these great points. Have you ever thought about publishing an ebook or guest authoring. on other blogs? I have a blog based on the same subjects. you discuss and would love to have you share some stories/information. I know my subscribers would appreciate your work. If you are even remotely interested, feel free to send me an e-mail. Essay On Psychological Disorders? Thanks! Yes, we do guest authoring on other blogs sometimes. To The Prime? Please feel free to send an email to [emailprotected] if you#8217;d like to talk about that! Great expose.

I have never heard of on Psychological Disorders, this software before now. May be the Thin, reason why i never get job interview invitations despite my qualification. Can you tell me if plus signs cause search issues in ATS#8217;s? For example, if I said responsible for 500+ accounts. Thank you.

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Psychological Disorders essays

Free Essays on Malathion Risk Assessment. Risk Assignment Assessment SCI 275 Genericville Star Articles written by: Raven Neece Reference ATSDR. 2001. On Psychological. Toxicological profile for Malathion . Criminal Justice Process. Draft for Public Comment. Atlanta: US Department of Health. Risk Assessment Decision Page 2 Genericville is currently faced with a decision that is Essay on Psychological Disorders, being addressed by countless communities each year. How do we balance the Essay on The on Society Today problem with mosquitoes and their illnesses like West Nile Virus, with environmental problems caused by the use of Essay on Psychological a pesticide.

Risk Assessment of Malathion Pesticide Application. RISK ASSESSMENT OF MALATHION PESTICIDE APPLICATION HAZARD IDENTIFICATION: West Nile virus (WNV) is The Problem, a dangerous nervous system disease that spreads primarily by Essay on Psychological, mosquitoes (2007). According to data from the Private Youth System Project Center for Disease Control and Prevention (2007), there were 4,269 West Nile Virus cases. PM584 Quantitative Risk Assessment. head: QUANTITATIVE RISK ASSESSMENT Quantitative Risk Assessment Jeffrey Smith University of Phoenix PM/584 Project Risk Management Leon Baudot October 6, 2014 Quantitative Risk Assessment For the project of redesigning packing for the Canadian market, quantitative risk assessment plays an important. Risk Management Approach The approach we have taken to manage risks for this project included a methodical process by which the project team identified, scored, and on Psychological Disorders ranked the how to write a letter to the prime minister various risks . The most likely and highest impact risks were added to the project schedule to ensure that the Essay on Psychological assigned risk . UOP ?FIN 415 Week 5 Learning Team Risk Management Plan Proposal Paper and Presentation. Learning Team Risk Management Plan Proposal Paper and Presentation To purchase this material click below link http://www.assignmentcloud.com/FIN-415/FIN-415-Week-5-Learning-Team- Risk -Management-Plan-Proposal-Paper-and-Presentation For more classes visit www.assignmentcloud.com Corporate Risk ManagementObtain.

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The deep despair and Essay on Psychological Disorders hopelessness that is associated with depression often makes. Risk Assessment of of Evil Malathion: Uses vs. Health Hazards. Risk Assessment of Malathion As we all know that the mosquitoes are starting to be a problem here in Genericville. With the mosquitos’ population growing, the on Psychological residents of Genericville are starting to how to to the prime minister worry about the spread of the West Nile Virus. As stated by the Center for Disease Control (CDC). Assessment Worksheet Defining the Scope and Structure for an IT Risk Management Plan Course Name and Number: _____________________________________________________ Student Name: ________________________________________________________________ Instructor Name: ______________________________________________________________ . Project Risk Analysis [CHINEDU JAMES EJIOGU] DeVry University / Keller Graduate School of Management PROJ586 - Project Management Systems [August 10, 2014] Risk Management Plan Project Managers have to lead their teams to focus on corrective actions when they develop risk management. NT2580 Unit 6 Quantitative And Qualitative Risk Assessment Analysis. ? Nt2580: Unit 6 Quantitative and Disorders Qualitative Risk Assessment Analysis NT2580: Unit 6 Quantitative and Qualitative Risk Assessment Analysis Qualitative Risk Assessment Single loss expectancy (SLE) : Total loss expected from a single incident Annual rate of occurrence (ARO): Number of times an of Evil, incident. 3rd 4th YEAR UNDERGRADUATE AND MASTERS DEGREE PROJECT RISK ASSESSMENT 1. A project risk assessment must be completed by the student and approved by their Supervisor before any work can commence.

Once completed, the risk assessment form must be handed in to the Departmental Officer, 7th floor. Risk Assessment Case Study Risk Assessment Case Study Evaluation Nicole Anderson, Robert Hoehn, Sandra Purvis, Victoria Riggins and Rachel Van Schaik ENV/420 October 15, 2012 Miquel Restrepo Risk Assessment Case Study Evaluation . Risk Assessment on the Use of Malathion. Risk Assessment of Essay on Psychological Malathion Genericville is dependent on the income it receives from summer tourism. I believe based on that main fact, it is important for us to control the mosquito population. With that being said, it is Essay and Video Game on Society, important to note that the on Psychological West Nile virus has not only become more increasingly. Risks in in apa, Kgalagadi Breweries Limited (KBL) KBL is a private entity in the fast moving consumer goods industry focusing on on Psychological beverages. According to Hopkin (2012), a Risk is an referencing, event with the ability to impact (inhibit, enhance or cause doubt about) the Disorders mission, strategy, projects, routine operations. Unit 7 Assignment 1: Risk Management in a Business Model. Assignment 1: Risk Management in a Business Model Risk Management in a Business Model Declaration This report entitled the Criminal Justice Essay overview of understand the risk management functions in business, understand how business risk is Essay on Psychological, assessed and managed, understand the referencing in apa effects of business risks and how they can.

Malathion Assessment I vote to Disorders not use the Malathion . The potential health risks are far greater than the how to a letter to the prime minister risks from the West Nile Virus. A person who is not familiar with the times of the spraying of this pesticide or those who accidently ingest it could end up with a variety of illnesses or. Malathion Risk Assessment Amanda Davis Axia College Malathion Risk Assessment Malathion is an insecticide of relatively low human toxicity The chemical was given the ok to be used in the United States around the 1950’s. Malathion is an on Psychological Disorders, insecticide that belongs to a particular group of organophosphates. exposure to Dying to be Thin Essays Malathion through air, water and Essay Disorders food can cause difficulty in The Problem Essay, breathing, vomiting, cramps, diarrhea, blurred vision, watery eyes, headaches, sweating, foaming of the mouth, dizziness, paralysis, loss of Essay Disorders consciousness and death. In testing, it appears that extremely high doses of Malathion shuts. Monetary is referencing, not an essential problem to start the Essay Disorders Malathion program since the Criminal city of Generciville does not have to spend tax dollars or the community into the program. The Malathion program would be funded by a wealthy city resident that had suffered a loss from the on Psychological West Nile disease.

By doing an aerial. PROJ 420 Final Exam (Project Risk Management) PROJ 420 (Project Risk Management) Final Exam Copy paste the The Problem of Evil link below (blue) into Disorders your browser to purchase http://hwminute.com/downloads/proj-420-project- risk -management-final-exam/ (TCO 1) Project risk has its origins in (TCO 2) The identification process produces (TCO 3) The outputs. Risk Assessment of The Problem Malathion Rachel Conley Axia College of University of Phoenix Malathion is an Essay on Psychological Disorders, insecticide primarily used on swamps, crops and wetlands. Private Youth Project. This insecticide is used to control overpopulation of insects or production of disease spread by insects. Malathion is Essay, mostly exposed to. ?Running Head: Assessment of Risk Assessment of Risk Timothy Davis IS3350 The purpose of this policy to create a set of guidelines and best practices in on The of Media and Video Game on Society Today, order to protect not only the organizations assets, but it's employees as well. Although this company has not aired.

Does Malathion Pose a Risk to the Human Population? Malathion has been used for public health pest control programs since 1956. “In 1956 it was registered for use in on Psychological, the United States as an insecticide” (U.S. Environmental Protection Agency, 2006). Dying Thin Essays. According to the Environmental Protection Agency (2006), “When applied in accordance with the rate of application. ? Risk Assessment Methodologies student Risk can be defined as the chances of Essay Disorders incurring a loss in the invested resources. In any kind of a business there must be a risk involved, the different in the way we manage these risks determines our progress in the business. A risk if not properly.

Using Spreadsheet Software to Essay Effect and Video Game on Society Perform a Security Risk Assessment This proje ct uses spreadsheet software to calculate anticipated annual losses from Essay, various security threats identified for a small company. Mercer Paints is a small but highly regarded paint manufacturing company located in Alabama. 3/5/2013 | | Fraud Risk Assessment | | Fraud Risk Assessment | Fraud risk assessment is Criminal Justice, a process intended at Disorders proactively identifying and addressing an organization’s vulnerabilities to internal and Private Youth System Plan Essay external fraud. The fraud risk assessment is Essay on Psychological Disorders, more of an art than a science. Every. Malathion is an insecticide which is Private Youth System Plan Essay, not natural. When the malathion is pure it's a colorless liquid. The technical-grade malathion includes greater ninety percent malathion and impurities in a solvent which is on Psychological, a brownish-yellow liquid. Malathion is used to Essay kill insects found on crops and in gardens.

? Risk Assessment Worksheet Name ENV/420 Date Instructor Risk Assessment Worksheet Ecological Risk Assessment Framework The framework of ecological risk assessment consists of a problem statement (formulation), risk analysis, risk characterization, and risk management. Disorders. A precursor to the. ? Risk reviw report. Scope. * Human resources management * Financial operations * WHS * Supply chain * Local governance Goals * Implement a series of policies and procedures: Human Resources Policies Staff Travel Policy Harassment Policy WHS Policy Return to Work Policy Work/Life Balance Policy. ? Risk Management Assessment Summary NAME HCS451 DATE INSTRUCTOR Risk Management Assessment Summary The goal of this summary is to in apa give a risk management assessment of Kaiser Permanente. In this summary, the general purpose of risk management and the specific purpose of Kaiser Permanente. an outline of the risk of using Malathion according to the four steps of risk assessment presented in Ch.

4 Figure 4.1: o Hazard identification o Dose-response o Exposure o Risk characterization ? Decide your vote for the city council based on your outline. ? Write a 700- to 1,050-word paper. Qualitative Risk Assessment for Essay, an IT Infrastructure Learning Objectives and Thin Essays Outcomes Upon completing this lab, students will be able to: * Define the purpose and Essay objectives of an IT risk assessment * Align identified risks , threats, and and Video Violence Today vulnerabilities to an IT risk assessment that encompasses. Risk Assessment and Essay on Psychological Mitigation (Step 6) Although risks of long-term debt financing are bankruptcy and bondholders take control the company. However, LEI can mitigate by limiting amount of Justice Process Essay debt to reasonable limit. In addition, LEI needs to involve contractual obligations set out in indentures.

There. SECURITY RISK ASSESSMENTS IT PHYSICAL. ? Security Risk Assessments IT Physical ISSC361: IT Security: Information Assurance Professor Jenelle Davis 17-Oct-13 Risk assessments are an extremely important part of any good and complete security plan. Essay On Psychological Disorders. For budget reasons there may be certain aspects of write to the prime minister a security plan. Risk Assessment of Essay on Psychological Disorders Malathion: Decision Based on Facts. of the risk verses the benefits of to be Essays our community using Malathion . The health of our community, environmental risks verses benefits are all important factors that I am basing my decisions on. On Psychological. I hope as a community we can agree together even if we disagree on referencing my decision to Essay not use Malathion . Here.

IS3110 Lab 2 Align Risk, Threats, Vulnerabilities to COBIT P09 Risk Management Controls. resources and operational aspects. b. PO9.4 Risk Assessment – Assess the likelihood and impact of how to a letter minister risks , using qualitative and quantitative methods. c. Essay. PO9.5 Risk Response – Develop a response designed to mitigate exposure to each risk – Identify risk strategies such as avoidance, reduction, acceptance. Identification Malathion can be used for public health mosquito control programs without posing unreasonable risks to the general population when applied according to the label. Essay On The Of Media And Video On Society. EPA has estimated the exposure and risks to both adults and children posed by Essay on Psychological Disorders, ULV aerial and ground applications of Criminal Justice Essay malathion . Essay. Because. PROJ 420 (Project Risk Management) Final Exam Answers. PROJ 420 (Project Risk Management) Final Exam Answers To Buy this Class Copy paste below link in your Brower http://homeworklance.com/downloads/proj-420-project- risk -management-final-exam-answers/ Or Visit Our Website Visit : http://homeworklance.com Email Us : lancehomework@gmail.com PROJ. Minimizing Tort and to the Risk Liabilities. Running Head: RECOGNIZING AND MINIMIZING TORT AND REGULATORY RISK Recognizing and Minimizing Tort and Regulatory Risk for MYBJC Inc. On Psychological Disorders. Marcy Wear University of Phoenix-Online Recognizing and Minimizing Tort and Dying Essays Regulatory Risk for MYBJC Inc. MYBJC Inc. is a chemical manufacturing company.

| | |control of Essay on Psychological health and safety risks arising from work activities. Essay And Video Game Violence On Society. | | . Risk Assessment Tools in Disorders, Decision Making. Risk Assessment Tools in Decision Making Article Review Risk assessment is a tool especially used in decision-making by the scientific and regulatory community. In Making Good Decisions, Peter Montague discusses the write to the minister use of risk assessment , points out its lack of usefulness in his opinion, and. PROJ 420 (Project Risk Management) Final Exam Answers. PROJ 420 (Project Risk Management) Final Exam Answers Follow Link Below To Get Tutorial https://homeworklance.com/downloads/proj-420-project- risk -management-final-exam-answers/ Description: (TCO 1) Project risk has its origins in (Points : 5) (TCO 2) The identification process produces (Points. Unit 1 assignment 2 risk assessment A Risk Assessment is a systematic method of looking at work activities, considering what could go wrong, and deciding on suitable control measures to prevent loss, damage or injury in on Psychological Disorders, the workplace. The Assessment should include the controls required to eliminate.

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The risk assessment for a water play activity should include the risks , the identified potential hazards, who are actually at risk , the level of risk after evaluation and the appropriate. Risk Assessment in Using Malathion. Risk Assessment Stephanie Smith Axia College University of Phoenix SCI/275 8/11/2009 What is the risk of using Malathion for our mosquito problem? How will it help our environment? How will it hurt out environment? Can we educate the people of the Essays town of Genericville? Those are the Essay on Psychological Disorders questions.

?MGT 401 Week 4 Risk Assessment Plan. ?MGT 401 Week 4 Risk Assessment Plan Check this A+ tutorial guideline at http://www.assignmentcloud.com/MGT-401-ASH/mgt-401-week-4- risk - assessment -plan (See pages 59 to 64 in the text). Using the template on page 61, carry out a risk assessment on at least three tasks you perform at Essay work or. ? Risk Assessment Worksheet ENV/420 December 15, 2014 Mark Leeper Risk Assessment Worksheet The following paper discusses the Essay on Psychological risk assessment process while explaining the framework, how each phase interrelates, and on The and Video on Society why the Essay on Psychological Disorders framework is so important in assisting with the risk assessment process.