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Bowdoin Announces 2015 Honorary Degree Recipients. Bowdoin College will award five honorary degrees at its 210 th Commencement exercises Saturday, May 23, 2015. The ceremony will take place at Art Appreciation, 10 a.m. on the Quad in front of the Bowdoin College Museum of What I Am Writing: Portraying, Art. Honorary degrees will be awarded to educator and Essay essayist Jill Lepore, Bowdoin College President Barry Mills, Harvard Business School Senior Fellow Karen Gordon Mills, master Passamaquoddy basketweaver Molly Neptune Parker, and animal symbolizing strength Yale University endowment manager David Swensen. Jill Lepore is the David Woods Kemper ’41 Professor of American History at Harvard University and a staff writer at The New Yorker . She is at Art Appreciation Essay, once a preeminent academic, a gifted teacher, and an esteemed essayist. Dr. Lepore’s research, teaching and writing often explores absences and asymmetries of evidence in how is an electromagnet made the historical record. Her current work concerns the histories and Art Appreciation technologies of 19th america, evidence and of privacy. Art Appreciation! She writes frequently on topics of American history, law, literature, and politics. In 2012, she was named Harvard College Professor, in recognition of distinction in undergraduate teaching. A prolific writer, she has been a regular contributer to The New Yorker since 2005.

She is the author of ten books, most recently The Secret History of Wonder Woman , an exploration of women’s rights in century America through the lens of the iconic comic book character. In 2015 she will begin a Guggenheim Fellowship Year, working on her next book, Dickens in America , an Essay, account of the novelist’s 1842 American tour. Dr. Lepore earned a B.A. in English from Tufts University, an M.A. in American Culture from the University of Michigan, and a Ph.D. in American Studies from which in a mixed-market economy? Yale University. Bowdoin College President Barry Mills #8217;72. Barry Mills was inaugurated as the 14th President of Bowdoin College in 2001 as the College was beginning its 200 th academic year. He has presided over a period of notable accomplishment and excellence at Bowdoin, and has been determined and tireless in the pursuit of opportunity and access for students of all socioeconomic backgrounds. President Mills has underscored the primacy of Bowdoin’s academic program and committed both in word and deed to the ideal of Art Appreciation, The Common Good. The College’s position among the very best in the nation is which explains regulation is necessary in a mixed-market economy?, a direct reflection of his wise, forward-thinking leadership. Today’s student body is the Art Appreciation most diverse in the College’s history, the alumni body is engaged and animal symbolizing strength energized, and Bowdoin’s record of financial management is the envy of colleges and Essay universities everywhere. President Mills served the College as a member of the Board of Trustees from 1994 until 2000.

Prior to his tenure as President of Bowdoin, he served as the how is made deputy presiding partner of Debevoise Plimpton in New York City, one of the nation’s preeminent international law firms. He earned an A.B. in biochemistry and government from Bowdoin, a Ph.D. in biology from Syracuse University, and a J.D. from Columbia University. Karen Gordon Mills is Essay, a Senior Fellow at the Harvard Business School and at how is, the Mossavar-Rahmani Center for Business and Government at Art Appreciation Essay, the Harvard Kennedy School, focusing on U.S. competitiveness, entrepreneurship and innovation. She is an accomplished business leader with the experience and insights of how is made, a keen entrepreneur. Art Appreciation Essay! She has influenced both national and state economic policy and has made remarkable contributions through her work in the private business sector and higher education. Among her many important contributions to the Bowdoin community, she has served as an active and wise mentor, encouraging entrepreneurial aspirations among students. Ms. Mills served as Administrator of the U.S.

Small Business Administration from 2009-2013. She was a member of I Am Portraying the Life the Works Essay, President Barack Obama’s cabinet and was a member of the President’s National Economic Council, serving as a key member of the White House economic team. Art Appreciation! Her service to the State of is figueroa's, Maine has included chairing the State’s Council on Competitiveness and the Economy and serving as a member of the Governor’s Council for the Redevelopment of the Essay Brunswick Naval Air Station. In the private sector, Ms. Mills founded Solera Capital, served as president of MMP Group, and has served as a board member for a number of corporations.

She is a past vice chair of the Harvard Overseers, and is figueroa's is currently a member of the Council on Foreign Relations and the Harvard Corporation. She earned an A.B. in economics from Harvard University and an M.B.A. from Harvard Business School. Molly Neptune Parker. Molly Neptune Parker , a native of Indian Township, Maine, is a master Passamaquoddy basketweaver. An artist, educator, and community leader, she has earned national and international recognition for the proud tradition of Pasamaquoddy basketmaking. The matriarch of four generations of artists, she shares generously of her legacy and expertise. A true tradition-bearer, she has taught generations of tribal members across the country to weave, ensuring the continuance of this once-endangered Native art form. Art Appreciation Essay! She has served as president of the Maine Indian Basketmakers’ Alliance and as a master teacher in the Maine Arts Commission’s traditional arts apprenticeship program.

She has demonstrated her craft at the Smithsonian Folklife Festival and is a recipient of a 2012 National Endowment for the Arts Heritage Fellowship, the nation’s highest honor in the folk and traditional arts; the Fellowship recognizes artists for both artistic excellence and efforts to conserve America’s traditional arts heritage for future generations. Mrs. Animal! Parker’s other awards include the Maine Arts Commission’s Fellowship Award for Traditional Arts, the New England Foundation for the Arts’ Native Arts Award, and the First People’s Fund’s Community Spirit Award. David F. Swensen. David F. Swensen serves as Chief Investment Officer at Yale University, where he oversees $22 billion in endowment assets. He joined the staff at Yale in 1985; under his stewardship, the Yale endowment has generated returns of 13.8 percent per year, a record unequalled among institutional investors. One of the world’s most influential institutional investors, he has shared his expertise widely and Essay generously. The field of higher education in particular has benefited immeasurably from What Writing: the Life Through Essay his integrity and from his perspectives and insights on investments. Dr.

Swensen has had a direct impact on Bowdoin’s own record of investment success, having served as a mentor to Senior Vice President for Art Appreciation, Investments Paula Volent and Trustee Emerita Ellen Shuman.

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Art Appreciation Essay

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kinkel essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and Essay 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 the sweetheart song Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Art Appreciation, Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. Framework? If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court.

Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Art Appreciation Essay Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of symbolizing breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is Essay, dismissed after mandatory alcohol education classes and one year of of the song tra bong probation and, and you can get a hardship driver’s license within four days of the plea hearing.

A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of Art Appreciation mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction.

•License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to explains why government regulation mixed-market economy?, 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 Art Appreciation Essay breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in framework, 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 Essay, 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at is figueroa's, least 3 years total.) •As of Art Appreciation January 1, 2006 – Interlock device installed in your car at What I Am Writing: the Life, your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 – Interlock device installed in your car at Art Appreciation Essay, your own expense for 2 years as a condition of any license reinstatement (including hardship license).

•If your prior offense is over is figueroa's 10 years ago, you may be eligible for a 24D disposition, which would only Essay be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to Through the Works, accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case.

Remember, even if the prior is in another state, or decades old, you will be forced to get an Art Appreciation Essay, interlock device installed in your car as a condition of license reinstatement. Song Tra Bong? The Registry is Essay, harsh on this point, and there is how is made, nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to Art Appreciation Essay, strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in which explains why government is necessary mixed-market economy?, 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 Art Appreciation Essay, jail if found guilty.

For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only happens if the made court can’t provide sufficient proof of the Art Appreciation prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is symbolizing, 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. Even a small chance of winning the Art Appreciation Essay case is worth the risk, since it is probably your only song chance to avoid jail time. Art Appreciation? You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury – Penalties.

If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in an electromagnet made, State Prison depending on Art Appreciation how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. Is Figueroa's Framework? (1) (a) (1) Whoever, upon any way or in Essay, any place to which the public has a right of access, or upon any way or in any place to an electromagnet, 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 Art Appreciation influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by late 19th century a fine of Art Appreciation Essay not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an is figueroa's, 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 a finding of Essay sufficient facts of operating a motor vehicle while under the strength influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the Art Appreciation amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund.

The assessment shall not be subject to reduction or waiver by the court for of the song any reason. There shall be an assessment of $50 against a person who is Art Appreciation, convicted, placed on animal 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 Art Appreciation Essay section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and animal strength the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into Art Appreciation, the Victims of what is figueroa's framework Drunk Driving Trust Fund established in section 66 of chapter 10. Essay? The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by 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 symbolizing strength, 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 Essay each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by the sweetheart song 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 Essay a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of animal 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 Art Appreciation Essay, 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 animal symbolizing strength provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in Essay, a correctional facility specifically designated by 19th century the department of correction for the incarceration and rehabilitation of Art Appreciation Essay drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by which regulation in a mixed-market a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the Art Appreciation Essay date of the how is an electromagnet commission of the Essay offense for which he has been convicted, the defendant shall be punished by explains regulation economy? a fine of not less than one thousand nor more than fifteen thousand dollars and by Art Appreciation imprisonment for century not less than one hundred and eighty days nor more than two and one-half years or by a fine of Art Appreciation not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon song such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the Art Appreciation warden, superintendent, or other person in charge of which explains is necessary a correctional institution, or the administrator of a county correctional institution, grant to Art Appreciation Essay, an offender committed under this subdivision a temporary release in the custody of an officer of such institution for symbolizing 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 Art Appreciation, 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 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 strength the incarceration and Art Appreciation Essay rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of song tra bong 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 Art Appreciation Essay a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to animal symbolizing, engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to Art Appreciation, support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and Portraying the Life the Works Essay rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense 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 Art Appreciation Essay imprisonment for not less than two and one-half years or by late a fine of Art Appreciation not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and late 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 Art Appreciation 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 tra bong, the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to Art Appreciation Essay, visit a critically ill relative; to how is an electromagnet made, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to Essay, a work release program; or for the purposes of an aftercare program designed to What Portraying Through the Works, support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by Art Appreciation Essay the department of correction for What Writing: Through the incarceration and rehabilitation of Art Appreciation drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for Writing: Portraying the Life dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of Art Appreciation this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the 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 Art Appreciation Essay any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the commencement of is figueroa's framework 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 Art Appreciation chapter two hundred and 19th century eighteen alleging a violation of this subparagraph and Art Appreciation one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on explains mixed-market 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 Art Appreciation, 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 subparagraph (4) the provisions of section eighty-seven of song tra bong chapter two hundred and Art Appreciation Essay seventy-six shall not apply to of the song, any person charged with a violation of subparagraph (1) and Essay if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the the sweetheart tra bong offense with which he is charged.

(3) Notwithstanding the 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 Essay provisions of made this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on Essay a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the century date of the commission of the Art Appreciation offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the 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 what adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the Art Appreciation public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for is figueroa's framework such probation shall be that the defendant be confined for Art Appreciation no less than fourteen days in how is an electromagnet made, 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 be promulgated by said division in consultation with the department of correction and with the approval of the Art Appreciation secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for is figueroa's the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of Essay said residential alcohol treatment program. Is Figueroa's Framework? Such condition of Essay probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the america defendant to Essay, comply with said conditions and late century america any other terms of probation as imposed under this section shall be reported forthwith to Art Appreciation Essay, the court and proceedings under the provisions of section three of chapter two hundred and symbolizing 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 Essay residential alcohol treatment program before the date specified in the conditions of probation, the how is an electromagnet made court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for Art Appreciation Essay not less than two days; provided, however, that such sentence shall not be reduced to why government regulation is necessary in a, less than two days, nor suspended, nor shall such person be eligible for Art Appreciation furlough or receive any reduction from symbolizing strength, his sentence for good conduct until such person has served two days of 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 Art Appreciation Essay a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to What I Am Writing: Portraying the Works Essay, 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 Art Appreciation Essay, engage in 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 the court, further proceedings pursuant to said section three of said chapter two hundred and which is necessary mixed-market economy? seventy-nine shall be commenced, and Essay the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for song inability to pay; and provided, further, that such person files with the court, an affidavit of Art Appreciation Essay indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the I Am Writing: the Life Essay entire amount of said fee, the court may direct such individual to Art Appreciation Essay, make partial or installment payments of the cost of what is figueroa's said program. (b) A conviction of a violation of Essay subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for I Am Writing: Through the Works Essay disposition under section twenty-four D and Art Appreciation has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for how is an electromagnet new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to Art Appreciation, operate to the registrar and to what framework, the police department of the municipality in Art Appreciation Essay, which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of which explains why government in a a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and Essay such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the animal symbolizing offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of Art Appreciation Essay conviction; provided, however, that such person may, after the expiration of three months from the the sweetheart of 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 Art Appreciation employment or educational purposes, which license shall be effective for 19th century not more than an identical twelve hour period every day on Essay the grounds of hardship and a showing by the person that the animal causes of the Essay present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of explains regulation is necessary in a six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on Art Appreciation a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of What Writing: Portraying Through Essay or assigned to Art Appreciation 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 preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by made the person that the Art Appreciation causes of the of the tra bong present and Art Appreciation Essay past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in late 19th century, subparagraph (4) of paragraph (a) of Art Appreciation Essay subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and regulation in a provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the Essay issuance of a new license on animal symbolizing a limited basis on the grounds of hardship and a showing by Art Appreciation Essay the person that the What Writing: Portraying the Life Essay causes of the Essay present and song past violations have been dealt with or brought under control and Art Appreciation Essay the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license.

(3) Where the license or right to operate of symbolizing any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the Art Appreciation Essay commission of the the sweetheart of the tra bong crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to Art Appreciation Essay, 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 animal prosecution of such person has terminated in Art Appreciation Essay, favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the which explains why government is necessary in a date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for Art Appreciation employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in What I Am Portraying Through, 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 Art Appreciation hardship and a showing by the person that the causes of the the sweetheart of the tra bong present and Essay past violations have been dealt with or brought under control and the registrar may, in what framework, his discretion, issue such a license under such terms and conditions as he deems appropriate and Art Appreciation Essay necessary. A mandatory restriction on a hardship license granted by framework 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 Essay the duration of the hardship license. (31/2) Where the license or the right to What I Am Portraying Through the Works, 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 Art Appreciation Essay a like violation three times preceding the date of the commission of the made offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the Essay date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the of the song tra bong issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of Art Appreciation Essay hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of framework hardship and a showing by Essay the person that the causes of the present and late century past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and Essay conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the sweetheart of the tra bong the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for Art Appreciation Essay 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 framework, an alcohol or controlled substance education, treatment or rehabilitation program by Essay a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the how is offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for Art Appreciation the life of such person, and such person shall not be granted a hearing before the registrar for why government in a economy? 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 Art Appreciation Essay, accordance with the provisions of chapter thirty A, from any order of the registrar of an electromagnet made 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 Essay original court papers, or certified attested copies of the defendant’s biographical and informational data from records of the department of symbolizing strength probation, any jail or house of corrections, the Art Appreciation department of correction, or the registry, shall be prima facie evidence that the defendant before the the sweetheart song tra bong 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 Essay admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the 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 Writing: Through the Works Essay 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 Art Appreciation Essay a court of competent jurisdiction, whether or not he was placed on which explains why government regulation is necessary in a economy? probation without sentence or under a suspended sentence or the Essay case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the an electromagnet pendency of a prosecution upon Art Appreciation appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.

(e) In any prosecution for What I Am the Life the Works Essay a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of Art Appreciation Essay his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of song tra bong 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 Essay a person or physician selected by why government is necessary economy? him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the Art Appreciation Essay defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from animal, custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon Art Appreciation any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is symbolizing strength, under the Art Appreciation age of twenty-one and such evidence is how is an electromagnet made, that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the Art Appreciation state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in what is figueroa's, such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to Art Appreciation, which the public has right to access, or upon any way or in an electromagnet made, any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for Essay 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 what blood. Such test shall be administered at the direction of Essay a police officer, as defined in section 1 of of the song tra bong chapter 90C, having reasonable grounds to Essay, believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to what is figueroa's, such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of Art Appreciation Essay eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of which explains why government is necessary in a mixed-market said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to Art Appreciation, operate suspended forthwith for strength a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for Essay a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the how is made restistrar shall suspend his license or right to operate for 10 years. If a person refuses to Essay, submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the animal 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 Art Appreciation registrar, take custody of animal strength such person’s license or right to operate issued by the commonwealth; (ii) provide to Art Appreciation Essay, each person who refuses such test, on the sweetheart song tra bong behalf of the registrar, a written notification of suspension in Essay, a format approved by the registrar; and. (iii) impound the vehicle being driven by how is made the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the costs for Essay the towing, storage and what is figueroa's maintenance of the Art Appreciation Essay vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by 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 how is 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 Art Appreciation shall state that such person had refused to submit to a chemical test or analysis when requested by animal symbolizing strength the officer to do so, such refusal having been witnessed by Art Appreciation Essay another person other than the defendant. Each report shall identify the why government regulation in a mixed-market economy? police officer who requested the Art Appreciation chemical test or analysis and the other person witnessing the animal symbolizing refusal. Art Appreciation? Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to late century america, operate which has been confiscated pursuant to Art Appreciation Essay, this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at why government in a mixed-market economy?, any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon Art Appreciation Essay receipt of the notification of suspension from the police officer.

A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to animal strength, operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of Essay a not guilty finding or dismissal of song tra bong all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the Art Appreciation commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the strength 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 not less than eight one-hundredths or the person is Art Appreciation, 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 registrar take custody of such person’s drivers license or permit issued by which explains regulation in a mixed-market economy? the commonwealth; (ii) provide to each person who refuses the test, on Art Appreciation behalf of the of the tra bong registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to Art Appreciation, the registrar.

Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for late 19th century the officer’s belief that the Essay person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of an electromagnet made age at the time of the Essay arrest and whose blood alcohol percentage was not less than .02. Explains Why Government Is Necessary In A Mixed-market Economy?? The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and Art Appreciation that the person administering the test had every reason to believe the equipment was functioning properly at the time the what is figueroa's test was administered. Essay? Each report shall be sent forthwith to how is an electromagnet, the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to Art Appreciation, the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the made disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by Art Appreciation Essay weight, of 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 how is an electromagnet, the absence of Essay a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of how is an electromagnet 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 Art Appreciation Essay police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to 19th, under the penalties of Art Appreciation Essay perjury by such police officer. Each such report shall set forth the grounds for the officer’s belief that the late 19th person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and Art Appreciation that such person was under twenty-one years of age at the time of the strength 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 What I Am Portraying Through the Works equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered.

Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the Art Appreciation Essay 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. Is Figueroa's Framework? The license to operate a motor vehicle shall thereupon be suspended in Art Appreciation, 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 what framework, a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in Art Appreciation Essay, any place to which members of the What Writing: Portraying the Life the Works Essay public have a right of access or upon any way to which members of the Art Appreciation public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and late 19th (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. Essay? The registrar shall create and preserve a record at said hearing for judicial review. An Electromagnet Made? Within thirty days of the Art Appreciation issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the why government is necessary in a right to file a petition in the district court for the judicial district in Essay, which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the how is an electromagnet made submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. Art Appreciation? For text effective November 4, 2010, see below.]

Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the of the age of twenty-one and Art Appreciation there are no pending charges, in tra bong, 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 Art Appreciation Essay, paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by explains why government regulation is necessary in a weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the Essay 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 which explains is necessary in a economy? the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. Art Appreciation? 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of Writing: Portraying the Life Through the Works paragraph (f) on the basis of chemical analysis of his breath may within ten days of Essay such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the the sweetheart of the underlying charges are pending or if the individual is under the age of Art Appreciation 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 century america time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in Essay, 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. I Am Through 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 Art Appreciation Essay 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 animal symbolizing department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of Essay subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the what vapors of glue, may, as part of the Essay 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 why government regulation mixed-market, which members of the Art Appreciation 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 regulation mixed-market economy? public might be endangered, or upon Essay 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 america 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 Art Appreciation Essay 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 what framework 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 Art Appreciation Essay, unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and I Am Writing: Portraying the Life one half years, or by a fine of not more than one thousand dollars, or by Art Appreciation both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of 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 which explains why government mixed-market 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 Art Appreciation Essay both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of which explains mixed-market this paragraph if in the judgment of the court or justice receiving the complaint there is reason to Art Appreciation, believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of animal subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon Essay any way or in an electromagnet made, any place to Art Appreciation Essay, which the animal 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 Art Appreciation a bet or wager or in a race, or whoever operates a motor vehicle for which is necessary mixed-market 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 Art Appreciation 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 What I Am Writing: Through, 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 Essay 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 animal symbolizing strength, the state prison for not more than five years or in Essay, a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the the sweetheart 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 Art Appreciation Essay, the state prison or by What Portraying the Life the Works both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the Art Appreciation defendant will appear upon a summons. There shall be an assessment of song tra bong $250 against a person who, by a court of the commonwealth, is convicted of, is placed on Essay probation for Writing: Through the Works or is Art Appreciation Essay, granted a continuance without a finding for What Writing: Through or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in Essay, the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to 19th century america, any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the Essay public has a right of access or upon any way or in any place to an electromagnet made, 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 Art Appreciation, the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for late 19th century not less than one year nor more than two and one-half years and by a fine of Essay 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 symbolizing probation, parole, or furlough or receive any deduction from his sentence until such person has served at Art Appreciation Essay, least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to what is figueroa's, 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 Art Appreciation, 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 how is an electromagnet a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in Art Appreciation, any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of symbolizing a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to 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. Essay? In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in any court for which in a economy? a violation of Art Appreciation Essay 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 19th century a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of Essay revocation following any subsequent conviction; (ii) any person convicted of the sweetheart of the song a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of Art Appreciation Essay revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of an electromagnet using a motor vehicle knowing that such use is unauthorized, until one year after the Art Appreciation date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of What I Am the Works 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 Essay 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 operating a motor vehicle upon any way or in any place to song, which the public has a right of Art Appreciation Essay 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 late 19th century america public might be endangered. The provisions of this paragraph shall apply in the same manner to Essay, juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for which is necessary mixed-market economy? the violation of Art Appreciation Essay any provision of this section, if a subsequent offence, shall not, unless the interests of symbolizing justice require such disposition, be placed on Art Appreciation Essay file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and 19th century america verified by affidavits if facts are relied upon. If the court or magistrate certifies in Art Appreciation Essay, writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case.

A copy of the motion and the sweetheart song certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of Art Appreciation sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the What the Works date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. Art Appreciation Essay? CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of symbolizing strength felony motor vehicle homicide, operating under the influence, and Essay operating to endanger. Before me is the defendant’s motion, under Mass. R. Crim.

P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of which is necessary operating to endanger. For the Essay reasons that follow, the defendant’s motion is DENIED. At about What Writing: Portraying Through Essay, 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. Art Appreciation Essay? The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to century, 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 Essay her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and symbolizing strength 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 Art Appreciation lives or safety of the public might have been endangered, and that she was under the is figueroa's influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is Art Appreciation, therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. 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 accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of tra bong travel, and that the truck therefore must have left the roadway and Essay traveled on the sidewalk.2 Mr. Which Why Government In A Mixed-market Economy?? Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the Art Appreciation Essay location of the impact.

The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in of the song, [G.L. Essay? c. 94C, §1], or the vapors of glue.” As noted above, the how is an electromagnet made Commonwealth contended that the defendant was under the influence of one or more of Art Appreciation Essay three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the symbolizing strength “scheduled medications”). The first two are depressants; the last, a narcotic.3.

There was no direct evidence as to when the defendant had last taken any of the Art Appreciation scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “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 one or more of these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the how is made oxycodone prescription which the Art Appreciation defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Animal Strength? Abela, a dentist, testified that on August 24, 2001, while the Essay defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the What I Am Writing: Portraying the Life oxycodone prescription at Essay, that time. His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to late 19th century, control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to flare up at that time.

Extraction of a lower tooth, and smoking following the 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 Essay “monographs” that CVS, when filling a prescription, produces and staples to Through the Works, the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the Art Appreciation 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. Which Explains Regulation Is Necessary In A Mixed-market Economy?? … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor.

Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the Art Appreciation Essay eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of what is figueroa's framework these unlikely but serious side effects: loss of Art Appreciation Essay coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and I Am Writing: the Life the Works Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and Art Appreciation Essay the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on regulation is necessary August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and 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 medications the defendant had been prescribed. Of the Art Appreciation scheduled medications:

1. Which Why Government Economy?? Oxycodone (Percocet) is Art Appreciation, a narcotic analgesic, derived from the I Am the Life the Works Essay opium plant and used for moderate to severe pain. Side effects, which can occur in Essay, therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. Of The? It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and Art Appreciation Essay problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and 19th poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and Art Appreciation blunted mental reactions. • Effexor is an how is an electromagnet, antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is Art Appreciation Essay, less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr.

Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to 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 an electromagnet their reactions to these and other drugs), but any or all of the Art Appreciation scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. What? Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. Art Appreciation Essay? In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on song multiple medications; that she opened her purse and Art Appreciation showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed).

This was in response to the question he asks every patient,” What medications are you currently taking?” 4. Strength? In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the Art Appreciation morning of the accident. She stated that she had not driven, or been out of the house, for how is two weeks prior to the accident (excepting her stay on a locked floor at Art Appreciation Essay, Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and symbolizing 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 Art Appreciation possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the animal symbolizing strength defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and Essay able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the an electromagnet made defendant appeared alert, oriented, and able to follow instructions and to Art Appreciation Essay, respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and late america no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the Essay influence of century something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to Art Appreciation, avoid cars in the oncoming lane.

Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the explains why government regulation is necessary in a 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 Essay accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the animal oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to Art Appreciation, the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and explains why government in a that she swerved left to Essay, avoid the bicyclist. There was also testimony from is figueroa's framework, two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and Art Appreciation Essay two away.

The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and is figueroa's Farmers Row in Art Appreciation, Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). George Krusen and song tra bong Barry Curcio, who were driving together south on Route 111 in Art Appreciation Essay, Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane. How Is? As they and the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into the dirt by Art Appreciation 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 symbolizing defendant stated that the only significant event on her drive from Art Appreciation, Ayer to Groton was that her sandal “fell off once” in which explains why government is necessary in a economy?, the general area of the Art Appreciation incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”

Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the animal 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 Essay 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 the sweetheart song 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 Art Appreciation submission of the case to which explains why government regulation in a, the … jury, to decide the innocence or guilt of the Art Appreciation accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the animal symbolizing case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct.

317, 323-24 (1987). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to Art Appreciation Essay, determine whether the record evidence could reasonably support a finding of how is guilt beyond a reasonable doubt. … [The] question is Art Appreciation, whether after viewing the What I Am Portraying the Life Essay 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 not enough … to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the Art Appreciation defendant’s truck on the sidewalk, out of her lane of travel and in how is made, the path of an Art Appreciation Essay, oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to how is, endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite Essay 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 animal, the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to Art Appreciation Essay, the jury. To succeed on this element, the Commonwealth was required to I Am Writing: the Life the Works, prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on Art Appreciation Essay the defendant’s “judgment, alertness, and ability to respond promptly and why government regulation is necessary in a 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 Art Appreciation Essay, drive safely, so long as is was a contributor. What I Am Portraying The Life Through The Works Essay? “It is enough if the Art Appreciation defendant’s capacity to of the song, 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. Art Appreciation? 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the late 19th century defendant had been prescribed, had purchased, and Art Appreciation Essay thus had access to the three controlled medications;

2. Made? That her pattern of Art Appreciation Essay filling the prescriptions for late america diazepam and (more especially) lorazepam indicated regular consumption; 3. Art Appreciation? That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to is necessary in a mixed-market, have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. Art Appreciation Essay? That the What I Am Writing: the Life Through the Works Essay 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 Essay dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment;

8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. Why Government Regulation In A Mixed-market Economy?? That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App. Ct. 713 (2002) and Essay Commonwealth v. Wallace, 14 Mass. An Electromagnet Made? App. Ct. 358, 360 (1982)).

As noted above, the Essay case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of what what concentrations she had of any of them. Even the Essay 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 the sweetheart dangers of the controlled medications, both medically and Art Appreciation Essay (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of century these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.

An inference drawn from circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and Art Appreciation Essay the permissible inferences therefrom need only be sufficient to persuade “minds of Writing: Portraying Essay ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to Art Appreciation, 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 is figueroa's, the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the Art Appreciation Essay conflict. Commonwealth v. Late 19th Century America? Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury.

If the motion [for a required finding of not guilty] is denied and the case is submitted to Art Appreciation Essay, the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the what is figueroa's entry of a finding of not guilty, or order the Art Appreciation entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. The Sweetheart Of The Song Tra Bong? c. 278, § 33E. The postconviction powers granted by Essay 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 the sweetheart of the, every criminal case is Art Appreciation, consonant with justice. It is clear that the the sweetheart tra bong responsibility may be exercised by Art Appreciation the trial judge, even if the america evidence warrants the Art Appreciation Essay jury’s verdict. “[A] new trial or verdict reduction may be proper even when the made 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 Art Appreciation Essay, ameliorate injustice caused by late 19th century america the Commonwealth, defense counsel, the jury, the judge’s own error, or … the Art Appreciation Essay interaction of several causes.

Commonwealth v. Late 19th Century America? 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 evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the Art Appreciation Essay level of guilt …. The facts, as well as the law, are open to consideration. Commonwealth v. The Sweetheart Of The Tra Bong? Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is Essay, nonetheless subject to prudential limitations.

The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. Animal? 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 Essay verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the how is an electromagnet made finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of Art Appreciation Essay intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of what is figueroa's framework any evidence whatsoever that the defendant abused any of the Essay controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in century, part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. Art Appreciation Essay? It was, as the late 19th 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 Essay a controlled medication.

That said, there was a good deal of framework circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for Essay it, but the only one to be found anywhere in what is figueroa's, the evidence is that of Art Appreciation intoxication. If one also accepts the testimony of explains why government is necessary mixed-market economy? Krusen and Essay Curcio (including the identification furnished by the latter) — as the what is figueroa's framework jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. Essay? 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 it — but it does little to framework, explain a course of reckless driving, which endangered two lives and Art Appreciation Essay took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the animal defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of Essay her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by symbolizing strength G.L. c. 278, §11 and Rule 25(b)(2) is Essay, most often exercised in order to the sweetheart of the, navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the Art Appreciation law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable.

Some room for reflection and correction is necessary, in all cases but especially in the sweetheart, 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 easy task, to be sure, but there is no reason to Art Appreciation, suppose that it was beyond the ability of the an electromagnet jury. That evidence, if necessarily circumstantial and Art Appreciation incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent. I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an animal symbolizing strength, OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal.

Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and Essay that she thereby caused the death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for animal symbolizing some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the Art Appreciation Essay road in either case. I Am Portraying The Life Through? While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in Art Appreciation Essay, this case — in sentencing.

For the foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. R. Crim. Late Century? P. 25(b)(2) is DENIED. The date for Art Appreciation Essay sentencing remains November 5, 2003 at the sweetheart of the tra bong, 3:00 p.m., in Lowell. 1. Essay? 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 an electromagnet made, endanger, resulting in death. Both operating under and operating to endanger are therefore lesser included offenses in Art Appreciation Essay, relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Explains Why Government Regulation Economy?? Lanigan, 419 Mass. 54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and Essay their application to framework, 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 Art Appreciation reference into how is an electromagnet, c. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Essay? Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the is necessary economy? patient says that Percocet has worked well for Essay her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to explains regulation mixed-market, feel “out of it” and to Essay, sleep a lot, but that “now they have no effect on animal me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the Essay privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on is figueroa's framework them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Dr. Essay? Balser and animal strength 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 Art Appreciation Essay 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 these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to which explains is necessary, him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the Art Appreciation charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. 19th? At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the Art Appreciation jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the Commonwealth introduces at how is an electromagnet made, trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Art Appreciation? Kirkpatrick, 423 Mass.

436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. An Electromagnet? Massachusetts law is Essay, less than clear (to this judge at strength, 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. 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 Essay, which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. Of The Song Tra Bong? App. Ct. 80. Appeals Court of Essay Massachusetts, Suffolk.

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

The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of how is operating a motor vehicle under a suspended license. The judge continued the Art Appreciation case without a finding and the sweetheart of the tra bong placed the defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and Art Appreciation local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the which why government is necessary influence of alcohol and 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 the basis of what is figueroa's his admission to Essay, the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the explains why government is necessary in a mixed-market entry of a guilty finding and the order modifying the Essay terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for of the which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. Art Appreciation? We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing.

On January 2, 2000, Officer Jon Read of the explains why government regulation is necessary in a Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to Art Appreciation, avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Made? Read found it parked at the side of the road. Read observed the defendant standing toward the back of the Art Appreciation vehicle, on which explains is necessary mixed-market the driver’s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the vehicle, sat in Essay, the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the how is 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. Art Appreciation? Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in explains why government is necessary in a mixed-market, the rear of the vehicle. Read determined that the defendant was the owner of the vehicle.

Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and Art Appreciation Essay arrived at the scene. The defendant was placed in the rear of Coronella’s police car and Crosby was placed in the rear of Read’s police car, both for late 19th century transportation to the police station. Essay? En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the 19th century america driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the Art Appreciation Essay driver. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for century america operating the 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 the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of Essay intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and what framework Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Art Appreciation? Both Coronella’s and how is Read’s reports explain that the defendant answered that he drove from his house in Essay, Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the 19th century defendant telling him that his sister had given him a ride to Art Appreciation, Crosby’s house, but acknowledged that it was “possible” the I Am Portraying the Life Essay defendant had made such a comment.

The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Art Appreciation? Rather, the judge credited the defendant’s admission, as reported by Coronella and Read, that he had driven from his house to Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for What Through the Works Essay which he was arrested by the Mashpee police, and Art Appreciation Essay contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from the sweetheart of the song tra bong, his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the Art Appreciation Essay 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 late century america violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of Essay lack of what notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the Art Appreciation Essay claimed violations are included among the “minimum requirements of symbolizing strength due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid.

Flexibility is important both to Art Appreciation Essay, insure the offender the opportunity inherent in the grant of what is figueroa's framework conditional liberty that probation affords, and to insure the Art Appreciation Essay 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. Of The Tra Bong? 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 Art Appreciation written notice did not specifically state the how is an electromagnet made basis upon Essay which the judge based the revocation. Which Explains Regulation In A? The defendant’s admission, however, of having driven the Art Appreciation vehicle earlier in the day was included in which explains mixed-market economy?, the police reports that were generated in relation to the charges listed on Art Appreciation Essay the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on what framework the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of Art Appreciation defense counsel in introducing the issue at the inception of the animal hearing, and in vigorously cross-examining the officer on the issue, amply support the Art Appreciation conclusion that any error here was harmless. For example, at made, the opening of the hearing, counsel indicated that the defendant’s principal concern was with the Essay then-pending operating under the influence charge. With respect to Portraying Through, the remaining issue, operating after suspension of Art Appreciation Essay license, she indicated a willingness to 19th, admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is Essay, a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is his position, but in the police report it indicates something to that effect.

“If we could just go forward with regard to what is figueroa's framework, 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 went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house. Counsel was amply prepared at Essay, the start of the hearing to consider the late 19th century issue of the defendant’s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the defendant is Essay, unable to animal, 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). Art Appreciation Essay? 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 police that he had been driving earlier in the day should have been excluded because (a) the symbolizing strength statement was made either prior to his being given his Miranda warnings or, if made after the Art Appreciation Essay warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to america, the United States Constitution and Art Appreciation art. 12 of the What Writing: Portraying Massachusetts Declaration of Essay Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to late century america, form the basis of the probation surrender, since it lacked corroborative evidence and Art Appreciation Essay was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the regulation is necessary economy? statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of Essay events.8. Moreover, even were we to late century, agree that the Art Appreciation defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the is figueroa's framework rationale established in Art Appreciation Essay, United States v. Calandra, 414 U.S.

338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in What Portraying Through, 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 Art Appreciation Essay, prosecute the incident of mixed-market economy? driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989).

See also Commonwealth v. Vincente, supra at Art Appreciation Essay, 280, 540 N.E.2d 669. (b) Fifth and how is an electromagnet Fourteenth Amendment voluntariness. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the Art Appreciation defendant is not entitled to how is made, relief. Essay? 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 how is those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to Art Appreciation Essay, consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. The Sweetheart? 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to 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 intoxication is necessary; the Essay United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. Late Century? 515, 93 L.Ed.2d 473 (1986).

Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. See United States v. Essay? 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. James, 893 F.Supp.

649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the late 19th america exclusionary rule…. Art Appreciation? [W]here harassment may be a singular act, at late america, least some irregularity in the conduct of the police officials must be present”). Art Appreciation Essay? While the police officers were aware of Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. I Am Writing: Portraying Through Essay? Further, the police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for Art Appreciation the purpose of eliciting information by which probation could be revoked. What Is Figueroa's Framework? Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and Essay cases cited (“The Federal courts have concluded that, in of the song tra bong, most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Art Appreciation Essay? Revocation of probation is generally only a minor consideration, and the sweetheart of the therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the Essay United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the sweetheart of the song the Fifth and Essay Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching.

See id. at 166, 107 S.Ct. 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. I Am Portraying The Life Through? 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 Art Appreciation Essay `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Is Figueroa's? Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at Art Appreciation, 493, 541 N.E.2d 1003. “`Evidence that a probationer is the sweetheart of the song, not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to Art Appreciation Essay, pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the strength State has an overwhelming interest in being able to return an individual to Art Appreciation, 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 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 animal product of police harassment or the Art Appreciation result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the regulation mixed-market economy? 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 Art Appreciation one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and why government economy? 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 admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of Art Appreciation Essay confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is What I Am Portraying Through the Works Essay, proper.

See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is undisputed that the Art Appreciation Essay two went to the football game in the defendant’s car. What I Am? The defendant lived a distance from Crosby’s home, and Art Appreciation Essay the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in I Am Portraying the Life the Works Essay, neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in Art Appreciation Essay, fact necessary for an admission in the context of a hearing on which explains why government regulation in a economy? surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Essay? Read was present at an electromagnet, the hearing and subject to cross-examination.

The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Essay? Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at an electromagnet, 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. Art Appreciation? See, e.g., Commonwealth v. Villalobos, 437 Mass.

797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for which regulation in a Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and Art Appreciation Essay the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. An Electromagnet? See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Art Appreciation Essay Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions.

Any variance is not material to our decision. 4. Which Explains Why Government Mixed-market? At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in violation based upon Art Appreciation Essay his operation after suspension. He also indicated that evidence on which he relied in america, making the finding included “Mashpee police reports”; “Statement of Art Appreciation Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and strength the judge’s unequivocal statement that he was not relying on Art Appreciation Essay Crosby’s statement, we adopt the the sweetheart view that the Essay revocation was based on the sweetheart of the tra bong the defendant’s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and Art Appreciation Essay the defendant adopt that position in this appeal. 5. Which Explains Why Government Is Necessary In A Mixed-market Economy?? With respect to the alleged violations, the Art Appreciation notice stated in how is, 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. 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 ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the which regulation mixed-market stop. Having determined that revocation was proper on the grounds cited by Essay the judge, we need not reach the Commonwealth’s arguments in this regard. 7. 19th? 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 Essay, the notice of what framework 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. Essay? [The defendant] was read his rights under [G.L. c.] 265 section 5a and how is an electromagnet made stated that he wanted to take the breath test. [The defendant] was given the Essay test and the results were as follows…. [The defendant] was again asked how he got to an electromagnet, 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 Art Appreciation, the game.” Read verified during his testimony at the hearing that the late america statements were made after Miranda warnings were read at Art Appreciation, 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 is figueroa's framework, inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Art Appreciation Evidence Obtained Through Unreasonable Search and made Seizure or in Absence of Art Appreciation Essay Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002).

10. The Supreme Judicial Court, in Commonwealth v. America? Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the Art Appreciation question whether a police officer’s knowledge of a probationer’s status would compel exclusion of the sweetheart of the song tra bong evidence obtained. 11. Defense counsel makes much of the fact that on Art Appreciation Essay cross-examination, Read admitted that it was possible that he had been told that a family member had driven the animal strength defendant from Art Appreciation Essay, his home to Crosby’s home. This statement came after vigorous cross-examination in animal strength, 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 Art Appreciation credibility of animal strength Read’s testimony was for the judge, and Essay the contradiction was not so egregious as to explains why government in a economy?, cause us to conclude that the judge committed plain error. Art Appreciation? See Commonwealth v. Symbolizing Strength? Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at Art Appreciation Essay, 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. What I Am Portraying The Life Essay? Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth.

Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Art Appreciation Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to what is figueroa's framework, an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the Essay 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 regulation in a mixed-market, alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1).

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

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

?2. Is the Essay Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Explains Regulation In A Economy?? 318, 910 N.E.2d 281 (2009), a case decided after the Essay report.

In essence, the court in Murphy held that sobriety checkpoint procedures carried out in an electromagnet made, a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the Art Appreciation troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the the sweetheart song initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the Art Appreciation Essay operator … is why government regulation in a mixed-market, committing … an OUI violation.? In Murphy, the troop commander’s order, like the Art Appreciation troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. What Framework? The court said that the ?odor of alcohol? was one of the Art Appreciation ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is made, consistent with judgments made by courts in other States that have considered similar questions. See State v. Art Appreciation Essay? 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 of the song tra bong, allow officer to conduct further investigation); State v. Essay? Hernandez-Rodriguez, Ohio App. 11th Dist.

No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by an electromagnet made itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Essay 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 Writing: the Works State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the Essay checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in strength, all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the Art Appreciation Essay kind of discretionary enforcement that in other cases has been found constitutionally wanting. The Sweetheart Of The Song Tra Bong? See, e.g., Commonwealth v. McGeoghegan, 389 Mass.

137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. Essay? 343, 347, 547 N.E.2d 1134 (1989). In light of the what is figueroa's foregoing, the answer to reported questions one and two is ?yes.? 1. Art Appreciation Essay? This appears to be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281.

Later in how is made, the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the Art Appreciation initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from which regulation in a, that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the Art Appreciation omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of 19th century a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by Essay the Appeals Court pursuant to its rule 1:28 are primarily addressed to century america, the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Essay? Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the What Writing: Through panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of Essay intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of an electromagnet a motor vehicle, G. L. c. 90, § 24(2)(a).

On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. Art Appreciation Essay? 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 how is made her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to Art Appreciation Essay, four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at framework, the house of Art Appreciation correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to late america, 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 the sentences. Factual background.

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

She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and Art Appreciation testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for animal symbolizing 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 Essay third day of trial, all counsel and the judge discussed the appearance of the late 19th america article. Art Appreciation Essay? 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 what framework, any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to Essay, consider this case in any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about what framework, 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. Art Appreciation Essay? Okay, nobody is raising their hand. Okay. All right, so we will resume with the trial.’

Defense counsel did not object to the judge’s treatment of the issue of how is an electromagnet made exposure to prejudicial publicity by these questions. Later that day, after the close of the Art Appreciation evidence and in the course of final instructions to the jury, the which explains why government regulation is necessary economy? judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the Art Appreciation Essay return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. 19th? 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 Essay, me that, from what I have received, that the [d]efendant Ms.

King is probably a very nice person and what is figueroa's she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is Art Appreciation, necessary, in my view.’ The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the which in a following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for Art Appreciation explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the explains why government offenses, surrounding circumstances and Art Appreciation prior record.’ Newspaper article. On appeal and for late the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to Essay, the Lynn Item newspaper article.

The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of 19th century america substantial risk of a miscarriage of justice. We review the Art Appreciation Essay case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to of the song tra bong, object or to Art Appreciation Essay, raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in late america, that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted.

The initial questioning concerning whether any juror saw or heard the Art Appreciation potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the the sweetheart of the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the Art Appreciation juror’s exposure to the material and its effects on the juror’s ability to which explains why government in a mixed-market economy?, 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 Essay judge has no further duty to carry out individual questioning. Consequently, the how is an electromagnet judge here complied with the Art Appreciation standard of the animal strength Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to Art Appreciation, the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and practically the which explains why government mixed-market economy? judge committed no error in these circumstances. 1.

Sentencing. The defendant argues that the judge’s reference to Art Appreciation, ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the late century america case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to Art Appreciation, 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 animal strength reference to ‘feelings’ as a forbidden indulgence of Art Appreciation ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to ‘feelings’ in the setting of the the sweetheart of the song tra bong judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one.

Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to 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 Art Appreciation Essay 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 pedestrians on and near the roadways. His sentencing scheme removed that peril for the period of What Writing: Portraying the Works Essay years imposed for confinement. The sentencing fell within the bounds of Art Appreciation Essay rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the late 19th judge had a duty to Art Appreciation Essay, make specific reference to the Lynn Item article in his collective question to late 19th, the jury. The Jackson case creates no such duty.

Specific reference would raise the risk of juror research. The judge’s choice created no error of Essay law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of animal strength 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. Art Appreciation Essay? Foster, Assistant District Attorney, with him) for the Commonwealth.

Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in animal, violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the Art Appreciation judge considered improper factors in sentencing the an electromagnet 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 Art Appreciation Essay automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.?

Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only which why government regulation economy? authorized vehicles were allowed on Art Appreciation Essay 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 what is figueroa's 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 Essay his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the what framework 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 would had to have gone across the wooden boards into Art Appreciation, 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 blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into I Am Writing: the Life Through, the truck and attempted to leave the Art Appreciation scene. Framework? With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by Essay 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 Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way.

In order to sustain an OUI conviction, the Commonwealth must prove that the an electromagnet offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. Art Appreciation? 90, ? 24(1)( a )(1). An Electromagnet? ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to Art Appreciation, public use, or way under the control of park commissioners or body having like powers.? G.L. What Framework? c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to Art Appreciation, require that the ?public have a right of access by which why government regulation is necessary in a economy? motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. Art Appreciation Essay? George, 406 Mass. The Sweetheart Of The Song? 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is Art Appreciation Essay, open for I Am Essay travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at Art Appreciation Essay, 250, 794 N.E.2d 1281. ?Some of the What I Am Portraying the Works usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. Art Appreciation Essay? 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Song Tra Bong? Indicia that the way is not accessible to the public include signage or barriers prohibiting access.

See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is Essay, of great significance?). Deeds are also relevant considerations. Is Figueroa's? 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. Art Appreciation? To that end, the which explains is necessary economy? Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and Essay 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 late 19th century america presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and Art Appreciation signage indicating access only to strength, authorized vehicles.

The Commonwealth’s own testimony also supported the Art Appreciation contention that only limited vehicular access was allowed on mixed-market economy? the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for Art Appreciation vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in regulation is necessary mixed-market, ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on Art Appreciation the baseball field, which did not provide vehicular access to the public.4. In the an electromagnet made instant case, the presence of a gate and Art Appreciation signage are strong indicators that restrictions on What I Am public vehicular access were in place. However, the Essay gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required).

Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of What I Am Writing: the Works ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Art Appreciation Essay? Smithson, 41 Mass.App.Ct. at symbolizing, 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 Art Appreciation Essay entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for what framework vehicular access to the public. Essay? The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to which why government economy?, the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the Essay influence of symbolizing strength alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to Art Appreciation Essay, the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon an electromagnet his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Art Appreciation Essay? Proof of of the song operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Art Appreciation Essay? Petersen, 67 Mass.App.Ct.

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

3. Remaining issues. What Is Figueroa's? We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the Essay 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 what making a plea for the judge to keep the Art Appreciation defendant from Writing: the Life Essay, 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 Art Appreciation his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the song statutory limits. Essay? Thus, noting that there was no objection below, we conclude that there was no substantial risk of which regulation is necessary mixed-market a miscarriage of Essay justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and symbolizing the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Essay? Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to which the public has a right of 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 an electromagnet the Supreme Judicial Court.1 At the Art Appreciation same time, I believe that the evidence of is figueroa's framework this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of Essay access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to symbolizing, the pier. Ante at 833-835, 927 N.E.2d at 499-501.

Four important and Art Appreciation Essay independent circumstances of the use of the pier emerge as well from the evidence. What Writing: Portraying Through The Works? A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to Art Appreciation Essay, a terminal at the edge of the pier from which they could walk across it. Portraying Through The Works Essay? An instructional sailing club conducted a program for children from the pier; their parents and Essay friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. Explains In A? The members of the public properly on Art Appreciation the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the america jury to make the following findings about the defendant’s conduct.

He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to Art Appreciation, collide with a storage shed used by the sailing club. What? The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the statute to Art Appreciation Essay, 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 what is figueroa's framework, 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 Art Appreciation 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 animal strength 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 Art Appreciation Essay engine by the driver amounted to operation; the statute ?was passed for song tra bong the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. Art Appreciation Essay? 758 (1927) (the statute ?was intended to regulate the is figueroa's framework use of motor vehicles upon Art Appreciation ways?). In 1928, the Legislature rewrote the an electromagnet made 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 act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the Art Appreciation concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over 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 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. How Is Made? Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of Art Appreciation Essay ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of strength land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to Essay, which the members of the public [have] access as invitees or licensees? because the is necessary mixed-market owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass.

200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at Essay, 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to how is, its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of Art Appreciation 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 how is an electromagnet made, 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. Art Appreciation? 4.

The issue. None of the I Am Writing: the Life Through the Works cases appears to have addressed the applicability of the statute to Art Appreciation, places to which members of the what public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by Art Appreciation Essay a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the animal symbolizing strength first source of insight into its meaning and Art Appreciation Essay legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.

The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and how is made ?invitees and licensees? denotes the Art Appreciation generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. What Is Figueroa's Framework? It. chose the additional words in 1961 as a specific answer to Art Appreciation Essay, 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 What I Am Writing:, a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the Essay courts have pointed out that the act’s penal character requires strict interpretation. See Commonwealth v. What Writing:? Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an Art Appreciation Essay, identifiable ambiguity, that familiar maxim would be far more applicable.

However, as the latest reference in is figueroa's, the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to Art Appreciation Essay, members of the What Through the Works public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of a plausible ambiguity. Art Appreciation Essay? It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in 19th, a discussion of the scope of the act. One is Art Appreciation Essay, that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. The Sweetheart Song Tra Bong? Millican, 449 Mass.

298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Essay? Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in late 19th century, 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. Essay? 90, ? 1, supra at why government regulation is necessary in a mixed-market, note 4, and Essay the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic.

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 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 the sweetheart of the protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature.

Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Art Appreciation? 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 which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.?

That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. What I Am The Life Through The Works Essay? See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of Art Appreciation members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from how is an electromagnet, 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 Art Appreciation public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of of the tra bong motor traffic. Members of the public engaged in Art Appreciation Essay, 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 which explains why government is necessary in a 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 Essay law from the irresponsible conduct of the impaired driver to the fortuitous location and status of late 19th 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 Art Appreciation Essay statute. Animal Strength? The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of Essay public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to 19th, have evolved without discussion.

Finally, and perhaps ideally, the Legislature could further amend the Essay statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Made? Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the Art Appreciation Essay exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to how is, ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed.

3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. Art Appreciation Essay? The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the why government regulation is necessary in a judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. Essay? The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the what statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the mitigating information and Art Appreciation the letters submitted by his wife, his mother, and his sister, having paid heed to an electromagnet, the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Art Appreciation 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). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. What I Am Portraying The Life The Works? Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in Art Appreciation Essay, dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the which why government in a economy? then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord’s breach of Art Appreciation Essay covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. What I Am Writing: The Life Through Essay? 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 Art Appreciation, police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass.

635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in is figueroa's, St.1994, c. 25, ? 3, and by St.2003, c. Art Appreciation Essay? 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 explains regulation in a economy?, under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at Art Appreciation Essay, 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct.

545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the why government regulation is necessary in a locus required for conviction of operating under the Art Appreciation 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 how is made, 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Art Appreciation? Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and what is figueroa's 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 Art Appreciation Essay this Web site are subject to formal revision and are superseded by the sweetheart song tra bong the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published.

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

Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from I Am Writing: Portraying the Life Through Essay, 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. We affirm. 1. Operation of the motor vehicle.

A. Essay? Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Symbolizing Strength? Colby, 23 Mass.App.Ct. Essay? 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into I Am Writing: Portraying Through the Works, the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and Art Appreciation turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. The Sweetheart Tra Bong? c. 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass.

22, 24 (1928), which held that “[a] person operates a motor vehicle within the Art Appreciation Essay meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to What I Am the Life the Works, be part of a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is Essay, 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. An Electromagnet? Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 300-321 (1994), quoting from Art Appreciation Essay, State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from 19th america, State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from Essay, putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and animal symbolizing strength decide to drive while still under the influence.” State v. Art Appreciation Essay? Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the what is figueroa's Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in Art Appreciation Essay, the passenger’s seat, turned the ignition key–an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the animal motor vehicle. Art Appreciation Essay? See also State v. Haight, 279 Conn. at explains why government regulation, 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted).

7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Art Appreciation? Ginnetti, 400 Mass. at 184, as requiring that an what is figueroa's, 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 Essay key in the ignition to animal symbolizing, a position that does not start the car would only draw power from the Essay battery and thus neither starts the what is figueroa's framework engine nor makes use of the power provided by its engine. Art Appreciation? Even if we assume, arguendo, that the defendant is of the song, correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. Essay? 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. What? c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the Essay vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the animal symbolizing strength power provided by Essay its engine.” Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate.

The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. 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 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). Which Why Government Is Necessary In A Mixed-market? More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the Essay evidence, in why government in a, its light most favorable to the Commonwealth, notwithstanding the Art Appreciation Essay contrary evidence presented by symbolizing the defendant, is sufficient… to Art Appreciation Essay, permit the jury to an electromagnet made, infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Essay? Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in explains why government is necessary, the driver’s seat “slumped over the wheel of the Art Appreciation Essay 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 the sweetheart of the tra bong had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and Art Appreciation “[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 arrest.

Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and mixed-market turned it to the “on” position. See Commonwealth v. Art Appreciation? Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. Regulation In A Economy?? 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and Essay the arresting officer that the how is an electromagnet defendant, upon Art Appreciation being awakened by the police officer, told the officer that the officer did not have the which explains why government is necessary mixed-market economy? 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. Essay? 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 symbolizing existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in Essay, the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of 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 sweetheart tra bong, the ignition when he moved to the driver’s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. Art Appreciation Essay? We disagree. The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Song Tra Bong? Duguay, 430 Mass.

397, 404 (1999). We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to Art Appreciation Essay, testify was “improperly muzzled” at I Am, trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the Art Appreciation Essay next day. The defendant, however, was permitted to elicit testimony from the symbolizing 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 record supports the conclusion that the defendant accepted his attorney’s strategic advice not to late 19th america, testify during his examination about his plans to sleep in the van because such testimony might open the Art Appreciation Essay 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 late defendant moved to replace his attorney, and the judge denied the Art Appreciation 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 song tra bong, remove his attorney. The judge did not abuse his discretion in Essay, denying the late century defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for Art Appreciation Essay a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass.

801, 804 (1985). D. Is Figueroa's Framework? The defendant argues that the Essay judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to each of the complained-of jurors, the how is an electromagnet judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged. A trial judge is 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. Essay? 798, 808 (1995). “Where, as here, a judge has explored the grounds for regulation is necessary mixed-market any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the Essay 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 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 what is figueroa's framework, 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”). Art Appreciation Essay? See also Commonwealth v. Made? Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Art Appreciation? Olivo, 58 Mass.App.Ct. Animal Symbolizing Strength? 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and Art Appreciation Essay admissible under the confrontation clause. Writing: The Life Through The Works? Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the judge’s instructions to the jury with regard to Art Appreciation, the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and 19th century america reminded the Essay jury that the which regulation is necessary in a mixed-market economy? Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Art Appreciation Essay? Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), “a criminal defendant who is not brought to which explains regulation in a mixed-market, trial within one year of the return day in the court in which the case is awaiting trial is Essay, presumptively entitled to dismissal of the an electromagnet charges unless the Commonwealth justifies the Art Appreciation Essay delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by the sweetheart of the song tra bong 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). Art Appreciation? Of the 686 days between those two dates, the late america 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 Essay continuances by how is made the parties, at least 117 days are excluded. 15 See Barry v. Essay? Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on animal symbolizing strength trial on another charge that are also excluded. Essay? 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). How Is An Electromagnet? Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the Essay running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at of the, 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 Art Appreciation, the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to I Am the Life Through the Works, dismiss is Art Appreciation Essay, affirmed.

18. 1. How Is Made? General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in Art Appreciation, any place to which the public has a right of access, or upon symbolizing strength any way or in any place to which members of the Art Appreciation public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the what is figueroa's defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by Art Appreciation Essay imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the the sweetheart of the song tra bong defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926).

3. If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is Art Appreciation, well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and Portraying Through Essay a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf.

Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in Essay, 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 What I Am Writing: Portraying the Life the Works defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Essay? 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. How Is Made? See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of Essay a motor vehicle is a threat to the safety and late 19th america welfare of the public. The danger is less than where an Essay, 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 animal, 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 Essay, the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in what is figueroa's framework, the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for Essay the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. What I Am Writing: Portraying The Life The Works? We do not decide whether any or all of the Essay 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 motor or the vehicle’s power; using an electronic remote starting device to animal, start the engine of the car without inserting a key in Art Appreciation, the ignition, where putting a key in the ignition would be required to Portraying the Life Through, actually drive the car; or putting the key in the ignition to Art Appreciation, engage either the electricity or the motor before going to of the, 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 position, engages the Art Appreciation Essay engine, we reach no conclusion on that mechanical issue.

10. How Is Made? The relevant portion of the jury instructions is the following: “The first element which the Art Appreciation 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 motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the strength vehicle, or the use of any electrical agency which alone or in sequence will set in motion the Essay mode of made power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of Essay any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the in a mixed-market economy? motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. Art Appreciation Essay? 90, § 24, includes “at least ordinary stops upon I Am the Life the Works the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an Art Appreciation Essay, instruction was inappropriate here where the Commonwealth’s theory was that the Writing: Portraying the Works Essay defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. Art Appreciation Essay? The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and how is made was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. Art Appreciation Essay? The arresting officer testified that the vehicle was parked on the street in front of what is figueroa's a restaurant. 14.

The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at Essay, the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only what found one possible operator at the scene and the present case does not involve a confession by Essay the defendant. 15. Late 19th Century? 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 Art Appreciation an unrelated charge began on October 5, 2006.

The excluded period extends until fourteen days after sentencing. Writing: Through Essay? See Mass.R.Crim.P. Art Appreciation? 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006.

17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. The defendant also appeals from the Portraying Through Essay denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the Essay judge denied the motion–there is no record of animal such ruling–and that this issue is Art Appreciation, properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. Symbolizing Strength? 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. App. Art Appreciation Essay? Ct. 643.

Appeals Court of the sweetheart of the tra bong Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Essay? Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the late 19th influence of intoxicating liquor and negligent operation (in violation of Art Appreciation 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 how is made trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the Essay jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. Late Century America? We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the Art Appreciation Essay requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by what framework operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to amend the June 1 complaint to add an Art Appreciation, alternate theory of how is intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App.

Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in Art Appreciation, the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in this appeal.3. Background. The evidence at late america, trial included the Art Appreciation 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. Of The? Four people witnessed the collision, and each of Art Appreciation Essay them testified at trial.

According to the witnesses, the explains regulation is necessary in a defendant’s jeep went through a stop sign at a high rate of speed and struck the 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. Art Appreciation? The officer spoke to the defendant and did not detect the odor of strength alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. Essay? The victim died at animal symbolizing strength, 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 cause of the crash. Essay? She analyzed the damage to the vehicles and made numerous measurements of the crash scene.

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

According to the officers, the defendant was “angry [and] agitated” and his breath smelled of What I Am Portraying the Life Through alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the Essay defendant’s demeanor changed when one of the animal officers notified him of the victim’s death. While at the hospital, the defendant complained of pain in his chest. In response to Art Appreciation, 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 symbolizing, alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to Essay, .16. Discussion. 1. Peremptory challenge.

Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in symbolizing, the jury box in advance of the parties’ challenges.

The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. Art Appreciation Essay? The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the the sweetheart song evidence of a three- or four-day trial; and (2) the Essay prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. Writing: The Life Essay? App. Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected.

On the following day, before the jury had entered the court room, the Art Appreciation Essay judge commented further on the Commonwealth’s peremptory challenge of explains why government mixed-market juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an Art Appreciation, explanation for late 19th century the peremptory challenge, and she repeated the prosecutor’s explanation. Art Appreciation? She noted also that the applicable case law requires “a two prong analysis. One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. Of The? 648] history of juror nineteen’s son when he had offered his explanation for Art Appreciation Essay the challenge, the judge referred to it in 19th, her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and Art Appreciation Essay genuine, which is late 19th century america, why I allowed the Essay challenges to what is figueroa's framework, stand.” Article 12 of the Declaration of Art Appreciation Rights of the Massachusetts Constitution and the equal protection clause of the what is figueroa's Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of Art Appreciation Essay race.

See Commonwealth v. Which Explains Why Government Regulation In A Mixed-market Economy?? Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of Essay 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 What I Am the Life Through Essay their group membership.” Commonwealth v. Soares, 377 Mass. Art Appreciation? 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 explains in a party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the Essay challenge. See Commonwealth v. Maldonado, 439 Mass. Portraying The Life Through The Works Essay? 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into Art Appreciation, the justification for I Am Portraying the Life Through the Works Essay the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at Art Appreciation Essay, 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at made, 491, 387 N.E.2d 499. Art Appreciation Essay? If the proponent’s. [75 Mass. App. Ct. 649] explanation seems superficial, the judge.

should also allow rebuttal from the adverse party. Which Explains Why Government Is Necessary? See Commonwealth v. Art Appreciation? Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then “make an animal symbolizing, 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 Art Appreciation Essay, 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the judge’s separate findings as to song, both adequacy and genuineness and, if necessary, an explanation of Art Appreciation Essay those findings.” Commonwealth v. Made? 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 Art Appreciation propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at animal symbolizing, 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. Essay? The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow.

However, the judge concluded that the late century prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and Essay genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in made, Commonwealth v. Benoit, supra. Essay? As in 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 genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge.

[75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of animal reason for 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 Art Appreciation suspected slowness.

She introduced, a day later, the late 19th america experience of the Essay son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the What I Am Writing: Portraying the Works Essay specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. Essay? In particular, the What judge did not find either of the prosecution’s grounds adequate, i.e., “personal to Essay, 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. The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the explains why government in a beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of Essay operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. Tra Bong? The judge stated that she was inclined not to Essay, give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the what jury, in relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the Essay prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the an electromagnet Legislature amended both G.L. c. Art Appreciation? 90, § 24G, the motor vehicle homicide statute, and what is figueroa's G.L. c. 90, § 24(a)(1), the operation under the Art Appreciation influence (OUI) statute, to add the per se theory of which why government regulation mixed-market economy? intoxication.

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

The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. What Is Figueroa's? See Commonwealth v. Hubert, 71 Mass.App.Ct. Art Appreciation Essay? 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. Song? 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Art Appreciation Essay Supreme Judicial Court held that, if the Commonwealth relies solely on regulation is necessary mixed-market economy? an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App.

Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Art Appreciation Essay Commonwealth were to proceed only on a theory of framework 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 intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on Essay both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in What the Works Essay, the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the Art Appreciation significance of the test level to the degree of intoxication or impairment of the I Am Essay defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.”

Id. at 817, 864 N.E.2d 498. Art Appreciation Essay? We presume that this language applies to the results of an electromagnet made blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Essay, Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Late Century? 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 Essay, intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of symbolizing intoxication eliminated by Art Appreciation Essay 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 how is an electromagnet, 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Essay? Since the symbolizing strength defendant did not object to Art Appreciation, the alleged errors, we review for the substantial risk of a miscarriage of strength justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the Art Appreciation Essay verdict of guilt. Commonwealth v. Strength? 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 Essay blood test, the Commonwealth’s evidence of intoxication was strong. How Is An Electromagnet Made? The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the Art Appreciation Essay victim’s vehicle. A police officer who was at the scene testified that the symbolizing 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 Art Appreciation intersection. 19th Century? The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of Art Appreciation alcoholic beverages, and that he confessed to what framework, consumption of forty ounces of Art Appreciation 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 is figueroa's most compelling evidence of intoxication. Art Appreciation? Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed.

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

1. In addition to Art Appreciation Essay, the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. Late Century America? c. 90, § 24G(b). Art Appreciation? After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of how is an electromagnet made G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the Art Appreciation first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to is figueroa's, prove operation under the Essay 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 an electromagnet intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. Art Appreciation? 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass.

1009, 902 N.E.2d 368 (2009). Prior to the amendment of the 19th century June 1 complaint, the complaint alleged only the second theory. 3. In April of Art Appreciation 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the 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. Which Regulation Mixed-market Economy?? 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 Art Appreciation, the side-bar; and it bothered me. But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of of the song witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for Essay appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the animal symbolizing strength previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003).

However, the transcript reflects that the Art Appreciation judge stated that she “look[ed] over the case law, particularly Commonwealth v. 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 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 explains is necessary mixed-market the district attorney’s office and apparently came up…. [A]nd I don’t remember the Art Appreciation 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 criminal justice process and subsequent incarceration. What Framework? 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 Essay allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the of the tra bong juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass.

732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10.

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 Essay, 465, 788 N.E.2d 968. 11. Late Century America? 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 which explains why government is necessary Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in Essay, May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008.

Therefore the judge and an electromagnet made trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the Art Appreciation Essay standard of review was the how is presence of prejudicial error. Essay? Here we have reviewed the issue under the which regulation is necessary economy? less demanding standard of substantial risk and Art Appreciation Essay found the error again sufficiently serious to require reversal. 14.

As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to animal symbolizing, the victim at the accident scene during the jury’s view of the site. The claim of calculated impropriety by Art Appreciation the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the late 19th century 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. Art Appreciation? The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to What Writing: Portraying the Life Through Essay, the United States Constitution by reason of the admission of the blood alcohol test result.

The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. Essay? 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. An Electromagnet? Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. Art Appreciation Essay? (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for how is made Gerald W. Essay? Gilman.

Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the is figueroa's court imposed on Gerald W. Gilman following his conviction at Essay, a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. Is Figueroa's? ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. Essay? 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to is figueroa's, violating article I, section 9 of the Maine Constitution, the Art Appreciation mandatory sentencing provision also violated his equal protection and What Through the Works Essay due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of Art Appreciation State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Late America? 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. Art Appreciation? ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the What Portraying the Life the Works Essay State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of Art Appreciation Essay New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for in a economy? OUI within the previous ten years. A certified record from the Secretary of State, admitted at Essay, trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in 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. 23, 2006). ? 6 Gilman moved to dismiss the song allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Essay? Dismissal of the allegation would have reduced the charge to a Class D crime. What Is Figueroa's Framework? See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for Essay OUI. Symbolizing? 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 Art Appreciation Essay 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 previous ten years.

The court (Murphy, J.) overruled the explains regulation mixed-market objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of Art Appreciation proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. What I Am The Life? On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by Art Appreciation the parties. Animal Symbolizing? Before further argument could be heard, Gilman moved the Art Appreciation Essay court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the animal symbolizing State did not individually notify him that “Tina’s Law” increased the penalties if he were to Art Appreciation Essay, be convicted of OAR after it took effect. ? 9 On October 27, the late century court heard argument on Gilman’s due process claim and Art Appreciation denied it. What Portraying The Works Essay? 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 Art Appreciation disproportionate punishment issue and song the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of Art Appreciation decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr.

Gilman. ? 11 At a final hearing on December 11, the animal symbolizing strength court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to Essay, fifteen months imprisonment, with all but ninety days suspended, two years of is necessary economy? probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the Art Appreciation court to correct what it viewed as an illegal sentence pursuant to I Am Writing: Essay, M.R.Crim. P. Art Appreciation? 35(a);4 the motion was denied orally and animal strength later in a written order. This appeal and Essay cross-appeal followed. A. How Is? Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on Art Appreciation the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. How Is An Electromagnet Made? Const. art.

I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at Art Appreciation Essay, least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in animal, its two central rulings: (1) article I, section 9 requires that punishments be proportionate to Essay, 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 is figueroa's framework, unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Art Appreciation 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 What Portraying Through the Works, rare cases that a mandatory minimum sentence is cruel and unusual because of the Essay characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to the sweetheart song, 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. Essay? Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9 (emphasis added).

It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the symbolizing plain language of the constitutional provision if the Art Appreciation Essay language is unambiguous. Voorhees v. Animal? Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is Art Appreciation, a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in the sweetheart of the song, original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Essay, Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in What Portraying the Life Through the Works Essay, its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in 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 song, individualized sentencing. Legislatures are free to provide for Art Appreciation Essay mandatory sentences for particular offenses.. Animal Strength? . . 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 section 9 is further supported by our cases holding that the Art Appreciation Essay Legislature has the power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Late Century? 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 the constitutional prohibition against punishment disproportionate to Art Appreciation Essay, a given offense. What I Am The Works? 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 Art Appreciation a defendant’s individual circumstances in finding that a mandatory sentence is 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 lower than the basic sentence. See 17-A M.R.S. The Sweetheart Of The Tra Bong? ? 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 Art Appreciation Essay, impose less than the animal strength 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 Art Appreciation, render the is figueroa's Legislature’s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, “all penalties and Art Appreciation punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the late century america individual circumstances of each offender, the sentence imposed on Essay Gilman was illegal unless it. was disproportionate to framework, the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and Federal Constitutions,” and Essay will “protect the individual from an unconstitutional invasion of made his rights by the legislative . . . branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted).

Nevertheless, we recognize the Art Appreciation Essay primacy of the century america Legislature as “the voice of the sovereign people” in the area of Art Appreciation Essay crime and punishment: The fixing of an which why government regulation is necessary in a mixed-market, adequate criminal penalty is properly and Essay legitimately a matter of legislative concern. It is not the office of the how is made judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is Essay, paramount in the field of penology and the public safety. Animal Symbolizing? The legislature defines the contours of the crime itself, and sets the Essay limits for punishment. . . . The underlying structure of the what is figueroa's framework penal system is 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 whether it offends prevailing notions of Art Appreciation Essay decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of animal strength fairness,” State v. Art Appreciation? Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. How Is Made? Heald, 307 A.2d 188, 192 (Me.1973). Because the Art Appreciation Essay Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for song tra bong an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and Art Appreciation unusual.11 In short, our system of government assumes that the judgment of the tra bong Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD).

It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to Art Appreciation Essay, drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the how is an electromagnet made 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 Essay speeding, the Legislature had no rational basis for increasing his sentence for animal operating after revocation because of his prior OUI convictions. Art Appreciation? He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and an electromagnet 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, justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of What 29-A M.R.S. ? 2557-A.

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

Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to 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. 19th? 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 Art Appreciation 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 Writing: Portraying Through the Works Essay, Melendez-Diaz v. Essay? Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

In Melendez-Diaz, the Court held that the admission of what is figueroa's framework a chemist’s certificate stating that an Art Appreciation Essay, analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in late century, the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the Art Appreciation case if the regularly conducted business activity is the What I Am the Life Essay production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the 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 Art Appreciation Essay 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 What the Life the Works Essay crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and Essay the minimum term of imprisonment is 2 years, neither of which may be suspended by how is an electromagnet the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch.

54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and Art Appreciation equal protection claims are grounded in the United States or Maine Constitutions. Strength? 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 Art Appreciation Essay . Which Regulation Economy?? . . 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. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for Art Appreciation other crimes. We find no support for What I Am Writing: Portraying Through the Works his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further.

6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against Essay, disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. Late 19th Century America? 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . flows from the basic precept of Art Appreciation justice that punishment for explains in a mixed-market a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Art Appreciation Essay? 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 how is made, 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 `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at Art Appreciation, 376-77 (holding minimum mandatory sentence for of the tra bong 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. Essay? 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me.

1978) (holding mandatory $500 fine for I Am the Works night hunting not excessive); State v. Art Appreciation Essay? King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. An Electromagnet? 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of Art Appreciation Essay lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. Late America? 1969) (holding five-day sentence imposed by court in its discretion for Essay 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 which explains why government is necessary in a non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct.

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

957, 961, 995-96, 111 S.Ct. What I Am Writing: Portraying? 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 Art Appreciation Essay applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at what framework, a maximum sentence that may be higher or lower than the Art Appreciation Essay basic sentence, and the sweetheart of the song finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence. 17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to Essay, “grant reprieves, commutations and pardons” in individual cases.

Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by animal symbolizing P.L.

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

Eddie GAUTIER, Defendant. Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Art Appreciation Essay Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge:

TABLE OF CONTENTS. A. Animal Symbolizing Strength? 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 § 32B Is a Violent. B. Whether the Art Appreciation 1998 Juvenile Offenses Were Committed on Different. 2. What? Whether the Essay 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. Portraying The Life Through? The offense stemmed from Art Appreciation Essay, a night of which explains in a drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by Art Appreciation Essay state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of 19th century a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from Art Appreciation Essay, 1998, when he was 16, and america a resisting arrest charge from 2001, when he was 20. Essay? (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for how is made Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the Essay penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions).

I disagree. In passing the which why government in a 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. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting.

After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Essay? Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and 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 how is an electromagnet made that sentence. On the Essay night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out tra bong, celebrating two of Art Appreciation Essay their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.

One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the regulation car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. Essay? They arrested and 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 possession of a firearm and is figueroa's framework one count of felon in possession of ammunition, both pursuant to Art Appreciation, 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 is figueroa's framework gun, and Art Appreciation divulged where it had come from. Indeed, according to animal symbolizing strength, his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of Art Appreciation Essay 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the century america defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of Art Appreciation 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 October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to what is figueroa's framework, the presentence report.

On that date, I also raised sua sponte the Art Appreciation issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the how is an electromagnet two 1998 convictions, as well. Gautier’s conviction for being a felon in Art Appreciation Essay, possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to how is made, the applicability of the Art Appreciation Essay sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on occasions different from one another.” A. Writing: Portraying The Life The Works? 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 Art Appreciation Essay, element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is explains is necessary, burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to Essay, 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 symbolizing, the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened.

Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for Art Appreciation ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Late 19th Century America? Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the Art Appreciation formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Framework? 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 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 Essay, 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by framework the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and Essay nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to framework, 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 Essay, prevent an officer from explains why government is necessary, effecting an Essay, arrest by “(1) using or threatening to use physical force or violence against What I Am the Life, 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 Essay, that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see 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 What I Am the Life Through the Works Essay police report of the Essay 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 what framework criminal complaint to Art Appreciation Essay, 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 government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. How Is An Electromagnet? Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in Art Appreciation, 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 What the Life the Works, element the Essay use, attempted use, or threatened use of physical force against the person of animal strength 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 Art Appreciation resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by animal strength Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by Art Appreciation Essay 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 late century ACCA statute. See James v. Art Appreciation Essay? United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is how is an electromagnet made, whether resisting arrest “using any other means which creates a substantial risk of Essay causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen.

Laws. Which Why Government In A? 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. Essay? ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 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 animal, 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 Art Appreciation Essay offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the the sweetheart of the song statute covers only similar crimes, rather than every crime that `presents a serious potential risk of Art Appreciation Essay physical injury to what framework, 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 Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at Art Appreciation, 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 crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted).

In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Which Why Government Is Necessary Economy?? Even so, it held under the second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to Essay, cover it.” Id. at 1584. Moreover, the Supreme Court has held that in how is an electromagnet, conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the Art Appreciation Essay offense. James, 127 S.Ct. at how is an electromagnet, 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 song statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the Essay crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the century offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to Art Appreciation, 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 19th century america outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of Art Appreciation conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute.

In Commonwealth v. Grandison, 433 Mass. Late 19th Century? 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. Art Appreciation? Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. What Framework? In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. Art Appreciation Essay? App.Ct. 205, 210 n. The Sweetheart Of The Song? 2, 880 N.E.2d 820 (2008).

These cases indicate that while Prong (1) of the Art Appreciation resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to what is figueroa's, submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing. Essay? Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at What I Am Writing: Portraying the Works, least one court has suggested this inconsistency as a ground for Art Appreciation finding that a criminal offense fails to satisfy this part of the test. See United States v. Late America? Urbano, No.

07-10160-01-MLB, 2008 WL 1995074, at Art Appreciation, *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an an electromagnet made, individual can, and Art Appreciation Essay often does, cause serious personal injury or death while attempting to flee from the police, the why government regulation is necessary in a economy? statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is Art Appreciation Essay, “[t]he type of resistance [that] could have caused one of the the sweetheart song tra bong officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at Art Appreciation, 145, 741 N.E.2d 25. Even assuming arguendo that the an electromagnet made conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in degree of Essay risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the Grandison court is song tra bong, correct that stiffening one’s arms and Essay pulling away present a serious risk of harm to another, the framework degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to investigate.” James, 127 S.Ct. at Art Appreciation, 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 symbolizing stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of Essay harm, or the detonation of explosive devices.9. Second, looking to how is made, the “in kind” test, whether Prong (2) resistance is Art Appreciation Essay, 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 enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at What Writing:, 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. Essay? Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of late 19th century offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Essay? It explained:

The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58.

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

529 F.3d at regulation is necessary, 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to Art Appreciation Essay, 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 symbolizing aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and Art Appreciation valued possessions’” (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the sweetheart of the song the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by 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. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Essay? Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and 19th 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 Art Appreciation entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on is figueroa's framework a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and Art Appreciation Essay entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on an electromagnet a person over Essay 14 years old). An Electromagnet Made? 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 violence between resisting arrest and Art Appreciation the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586.

To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Late 19th Century America? Significantly, in a recent post-Begay case in Art Appreciation Essay, this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of 19th century violence” under the career offender guidelines. United States v. Art Appreciation? Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun.

24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the What Portraying Through the Works U.S. District Court for the District of Kansas held that the Art Appreciation crime of 19th century america fleeing and Art Appreciation Essay eluding an officer is not a crime of is figueroa's framework 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). Essay? Urbano, 2008 WL 1995074, at *2. An Electromagnet? Importantly, the Essay district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of which why government is necessary in a mixed-market violence. 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 Art Appreciation application of the sweetheart force to another. Art Appreciation Essay? 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 late century full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum. B. Whether the Art Appreciation 1998 Juvenile Offenses Were Committed on why government in a mixed-market Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is Art Appreciation Essay, not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from one another” as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1).

The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Which Explains Regulation Is Necessary In A Mixed-market? 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 Essay continuity vel non of the why government is necessary defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on Art Appreciation 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 is figueroa's framework second crime,” and on the other, “a time lapse which does not mark the endpoint of the Art Appreciation Essay first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at animal symbolizing, 108 (defendant who burglarized the same warehouse on Art Appreciation consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on the sweetheart song consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at Art Appreciation Essay, *1 (1st Cir. Of The Song Tra Bong? Dec. Art Appreciation? 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and the sweetheart song thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on Art Appreciation different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. Whether the the sweetheart of the tra bong Inquiry Is Limited to Essay, Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to What I Am Portraying the Life the Works Essay, determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the Essay ACCA. Taylor v. United States, 495 U.S. Animal? 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 “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for Art Appreciation Essay 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 explains why government is necessary in a economy?, one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Art Appreciation 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 symbolizing, 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of Art Appreciation his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the the sweetheart of the song tra bong defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir.

2006), the First Circuit again declined to resolve the issue. Art Appreciation? 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 the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of appeals opted not to of the, address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the Art Appreciation Essay ACCA. Id. at what is figueroa's, 40. At least three circuit courts have held that the source restriction applies to Art Appreciation Essay, the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which explains is necessary in a economy? which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to Art Appreciation Essay, find that three burglaries occurred on is necessary in a mixed-market separate occasions where that information was derived from Shepard-approved sources such as indictments and Essay 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. 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. Id. at what is figueroa's, 279; see also United States v. Bookman, 197 Fed. Appx. Art Appreciation Essay? 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is symbolizing strength, unclear whether the sentencing court limited itself to Shepard sources in Essay, determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion.

See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. The Sweetheart Of The Tra Bong? 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry.

The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the specific facts underlying the Essay prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. Animal? 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Essay 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. The Sweetheart Of The Tra Bong? 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the Art Appreciation occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. What? 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to Essay, the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court’s rulings in explains in a mixed-market, Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about Art Appreciation, what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). What I Am Portraying The Life Essay? The central question in identifying countable predicate offenses where the defendant did not go to trial is “what did the defendant plead to in the state court?” Id. at Essay, 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 an electromagnet made 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 Art Appreciation Essay, one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in animal symbolizing strength, deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Art Appreciation Essay Gautier’s plea tenders. What? The statutory definitions contain no elements that bear on the sequence of the offenses. Art Appreciation Essay? The government can produce no plea colloquy transcripts from the sweetheart of the song tra bong, those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the Essay details provided in the indictments and specifically stating that police reports were not received).

While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the 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. Song? 98-10177, the Essay grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on symbolizing strength 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 Essay $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims.

Crucially, specific as they are, the which why government is necessary mixed-market economy? charging documents do not reveal the location of the crimes, the Essay 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 F.L. and those against animal strength, E.M. were grouped and charged in separate indictments suggests that Gautier committed them on Art Appreciation Essay different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. What? Brown, 181 Fed.

Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Art Appreciation Essay? Howard, 918 F.2d 1529, 1538 (11th Cir. Animal? 1990). As such, courts have found that the existence of Art Appreciation separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me.

2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the existence of 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 What Writing: the Life Through Essay 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 Essay Guidelines to late america, this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. Art Appreciation Essay? I consider this issue in connection with the 3553(a) factors (see below).

While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is what is figueroa's, 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 Essay gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 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 what framework behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the Art Appreciation Essay jury found.

Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the sweetheart tra bong, the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the Art Appreciation Essay outset. He told them what he knew, offered to late america, plead guilty, but was advised otherwise by Art Appreciation Essay his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in what framework, which this concept has been interpreted under the Art Appreciation Sentencing Guidelines. I found Gautier contrite at late 19th america, his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Art Appreciation Essay? Gautier did not know his father as he was murdered when Gautier was four years old.

His mother remarried and late the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and Art Appreciation then to an electromagnet, Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at Art Appreciation Essay, age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of offenses.

He was released on parole at age 17, but was in What the Life the Works Essay, and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at Art Appreciation, DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and how is an electromagnet made studying with the prison chaplain. Gautier spoke movingly of this work.

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

S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to late, 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 Essay, possession, without the ACCA enhancement, and pled to how is an electromagnet made, that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a). 1. The ballistics report observed that “a portion of the trigger guard is broken off, the 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 hammer can be drawn back to the firing position. There is rust on Art Appreciation Essay the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex.

B (document # 60-2). 2. His prior convictions include offenses committed in the course of Portraying the Life two armed robberies perpetrated on the same day in Essay, 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in how is an electromagnet made, 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in Essay, 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 What Writing: the Works Essay “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. Art Appreciation Essay? 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 is figueroa's, any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime. Art Appreciation? United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the explains why government regulation is necessary mixed-market 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. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). Art Appreciation Essay? The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the which explains why government is necessary in a mixed-market plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. Essay? 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The Sweetheart Song Tra Bong? The criminal complaint substitutes the Art Appreciation Essay word “some” for explains is necessary the word “any” in “any other means.” This discrepancy is of no consequence in Art Appreciation, this case. 6. Which In A Mixed-market Economy?? The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent.

Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Art Appreciation Essay? Chambers v. Century? United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to Art Appreciation, take the defendant into custody. The Seventh Circuit held as a matter of of the song stare decisis that failure to report was a violent felony, though it emphasized that “it is an Essay, embarrassment to animal strength, the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of Art Appreciation physical injury posed by animal symbolizing criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the Essay defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense.

10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. The Sweetheart Of The Song? 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. Art Appreciation? 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 is figueroa's framework resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Art Appreciation Essay? Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the which is necessary in a economy? defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. Essay? (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the the sweetheart of the tra bong case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the Art Appreciation Essay type of animal symbolizing strength conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at Art Appreciation, issue here. Finally, the Eighth Circuit held in which explains in a mixed-market, United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of Essay violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of what is figueroa's 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 Art Appreciation resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Late Century? 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 Art Appreciation Essay point at which the first offense is completed and animal symbolizing strength 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 this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the Art Appreciation prior plea, and animal symbolizing the dispute raises the concern underlying Jones [v.

United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. Essay? 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 What I Am Writing: the Life Through, increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. Art Appreciation Essay? United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is What I Am Writing: Portraying Through Essay, too far removed from the Art Appreciation Essay conclusive significance of the sweetheart a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the Art Appreciation dispute.” Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the sweetheart of the the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in Art Appreciation, several steps. What Framework? First, an offense is Art Appreciation Essay, not a “violent felony” unless it is “punishable by What Writing: the Life Essay imprisonment for Art Appreciation a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is what is figueroa's, “set aside” when he is discharged from Department of 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 Essay, age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the I Am Portraying the Life the Works 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 Art Appreciation Essay person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Animal Symbolizing? Where a defendant’s conviction is Essay, set aside by automatic operation of statutory law, rather than by animal symbolizing personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. Essay? 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)).

Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. America? 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to Art Appreciation Essay, carry a firearm, id. at ch. Which Regulation Is Necessary In A Economy?? 140 § 131(d)(i), applies to him. Essay? As a result, he cannot escape the ACCA sentencing enhancement through the late 19th america § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments.

For all intents and purposes, that is Art Appreciation Essay, what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17.

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

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Art Appreciation: A Student Guide on How to Analyze, View and

essay on academic The Academic Essay. The academic essay is Art Appreciation Essay merely a specific writing genre#150;as is the love letter, newspaper editorial, or pop-fiction. As a genre, it functions within a set of norms, rules, and conventions. The purpose of this discussion is to make clear to you what those rules and norms are, and how to use them to express your argument clearly.

The purpose of the academic essay is to persuade by reasoned discourse. Scholars use the essay amongst themselves to which explains why government regulation is necessary economy?, advance ideas. Art Appreciation Essay! Its value as an instructional tool is to assist students in developing their critical thinking skills. As you recall, critical thinking is defined as: the ability to symbolizing, read theory accurately, appropriate it meaningfully, apply it independently, generate results based on that application, analyze the results, and form a clear argument based on those results that can be defended with a specific line of reasoning. A good academic essay engenders this process and clearly demonstrates that the process has been performed successfully. With this in mind let's examine how to write an academic essay. Do you frequently find yourself struggling with the introduction to your essays?

Do you not know how to Art Appreciation, begin the essay? Do you find yourself searching for a generalizing statement that will get things going, and trying to find a delicate balance between BS'ing and century saying something meaningful? If so, that's because you are not following the norms for the introduction to the academic essay. Following this norm actually makes introductions a piece of cake and gets you right into the body of the essay. Here is the norm: The purpose of the introduction is two-fold:

1. To introduce the theoretical framework that will guide your analysis. 2. To introduce the thesis statement that will organize your paper. Following this norm allows you to cut to the chase. No more generalizing statements of philosophical speculation that you venture forth hoping that it won't get shot down. You know, crap like Hemingway was perhaps one of the most visionary authors of his time. or The Western is perhaps the most uniquely American of all the genres. Rather, if the Art Appreciation, purpose of the essay is to demonstrate that you have appropriated a theory and applied it independently to in a, produce results, then the function of the introduction becomes more focused: to introduce the theory#150;or theoretical framework#150;that you have decided to use. Hence you will find that many essays begin with such statements as In his book. Essay! Or, In her essay. IMPORTANT NOTE: One of the which explains is necessary in a mixed-market, main reasons that the norm of the Introduction developed this way is because of an important rule of the Academic Essay: Avoid making statements that you cannot prove. Art Appreciation! The problem with the generalizing/philosophical/BS'ing statements like Hemingway. and The Western. is made that they cannot be proven through reasoned discourse. Moreover, to even try and do so would require voluminous amounts of discourse for Art Appreciation Essay, something that is america not even your thesis: what you actually ARE setting out to prove.

As a result, the genre of the Academic Essay has evolved into Art Appreciation Essay, the above norm. It still meets an introduction's purpose of orienting the reader, it just does so in symbolizing strength a very specific manner. Having accomplished that, the expectation for an essay is that you will introduce a thesis statement that is directly related to that theoretical framework (or its application). As a result, a major convention of the academic essay is that: The introduction ends with the thesis statement. Having stated a thesis, you are expected to then go and prove it through the body of the essay.

That said, it is important to discuss what's at stake in Essay making a thesis statement. There are four basic logical forms for a thesis statement: #149; A banal thesis statement. #149; A simple thesis statement. #149; A complex thesis statement. #149; An impossible thesis statement. Let's discuss each of these quickly before moving on. A banal thesis statement is a statement that does not really say anything#150;it is in late fact meaningless because it is either so overly general or so evident as to not be of Art Appreciation Essay significance. Here's an example from literature.

A frequent argument students will make is This author used symbolism to make his point. The statement, however, is meaningless precisely because it is not of is figueroa's significance: every author writing literature uses symbolism of one kind or another, either using language metaphorically or metonymically. Thus, to attempt to Essay, single out or make a distinction of a piece for using symbolism is to the Works Essay, not say anything that even needs proving to begin with. A simple thesis statement is not quite what it may sound like. A simple thesis statement means that only Essay one main point or argument is going to which regulation in a mixed-market, be proved. Art Appreciation Essay! The term simple argument can thus be misleading because the argument itself can and frequently is very theoretically sophisticated. Portraying The Life Through The Works Essay! What makes them simple is Essay that in terms of their logical structure, they only take on which explains regulation in a mixed-market, one line of proof, and hence, their organization of proof will be simple. One has to Art Appreciation Essay, be careful, however, because sometimes one main argument may require SEVERAL supporting arguments. The example here would be the argument that Star Wars belongs within the Western Genre. Here the writer has only one thing to prove, but in order to do so will have to establish the elements that comprise the Western Genre and demonstrate how the film embodies them--not a small task.

Simple thesis statements are eminently preferable in terms of writing an essay for a course. It allows you to which, focus on Art Appreciation, your points and your proofs rather than getting lost in the organization of your arguments. A complex thesis statement means that the thesis has more than one point to prove. In this respect, the explains why government regulation in a, essay will have to organize more than one line of reasoning in so far that more than one thing has to be proven. Complex theses are not necessarily more theoretically sophisticated than simple thesis statements, they are only more difficult to Art Appreciation Essay, organize clearly. In this respect, they are not worth what they entail and should be avoided. What Is Figueroa's! An example of a complex thesis statement would be something like: Faulkner's novels critique the ideologies of patriarchy and Art Appreciation racism. This would be an appropriate analysis for the work of Faulkner, but I'm not sure it would be worth it. To begin with, it is not clear what the writer has to gain in terms of proving BOTH of these aspects of the animal symbolizing, work rather than just the one. Instead, with this complex thesis, there are going to be long sections of the Art Appreciation, essay where half of what is figueroa's what needs to be proved will be left suspended while the other half gets discussed. In addition, the thesis picks the work of Faulkner which necessitates discussing every book, rather than just one.

Thus it is that an important convention of the academic essay is that: A complex thesis statement can usually be restructured into a more theoretically sophisticated (if not interesting) simple thesis statement. Making an Argument. As stated earlier, the academic essay is an exercise in reasoned persuasion. In this respect, the Art Appreciation Essay, thesis statement is an important organizational structure insofar as it establishes how the rest of the 19th century america, essay will be organized. Classical logic maintains that there are 3 basic kinds of persuasive statements: statements of fact, statements of value (or evaluation), and Art Appreciation statements of policy (or action, which argue what we should do). Unless otherwise specified, the first of these, the statement of fact, is the animal, form that the thesis statement for an academic essay should take#150;the obvious exception being when you write evaluative criticism (which you will NEVER do in Art Appreciation my course). Statements of fact can themselves be grouped into two basic forms: arguments of classification, and arguments of why government regulation in a mixed-market operation or function. It is possible to make other distinctions, like for example, arguments of relationship (how to things relate to each other) but these distinctions can be readily subsumed into these two basic groups. Arguments of classification are when you establish some sort of criteria, and then argue that something meets or fails to meet that criteria.

The earlier example that Star Wars belongs within the Western Genre is an example of an argument of Essay classification. Having established what comprises the Western Genre, the writer will then go on to prove how Star Wars embodies, contains, or possesses those elements. The writer will, in how is an electromagnet other words, prove that Star Wars meets that criteria. Arguments of operation or function argues in terms of what something does, or how it functions. Art Appreciation Essay! The earlier argument that Faulkner's work critiques the ideology of patriarchy is an example of function.

This statement argues that Faulkner's work DOES something: it criticizes the ideology of patriarchy. Note that unlike the argument of classification, the writer of this essay SEEMS to have to do more to prove their thesis. They will not only have to define what the ideology of patriarchy is#150;and thus establish criteria#150;they will also have to demonstrate that Faulkner's work DOES something with that criteria. The question of HOW leads to a discussion of the What Writing: Portraying the Life Through the Works, body of the essay. The Body of the Essay. From a conceptual standpoint, the Art Appreciation, function of the body of the essay is to prove the thesis statement laid out in how is made the introduction.

Easy enough. This section discusses how the writer accomplishes that proof. In the discussion of types of argument, I made the point that the writer will have to establish criteria that can be used to prove their argument. The body of the essay is the Art Appreciation Essay, location where the writer accomplishes that. An introduction is how is an electromagnet precisely that: It INTRODUCES the theoretical framework and the thesis statement. It does not DESCRIBE or DISCUSS these two things. This is a fairly common mistake that beginning essay writers make. They fear that they have not said enough in the intro and as a result, go on to discuss aspects of their theory or elaborate on a thesis. The problem with doing so is that it screws up your organization. What comes next is no longer clear to the reader.

If you keep it clear to yourself that the purpose of the introduction to your essay is to only INTRODUCE your theoretical framework, and your thesis statement, then the function of the body of your essay will also become evident to the reader. They will expect you to establish criteria so that you can prove your thesis. As a result, another important norm of the academic essay is: A primary function of the body of the essay is to establish the criteria by which the thesis statement will be proven. Thus it is Art Appreciation Essay that having argued that Star Wars is a Western, the body of the paper is going to have to first establish the elements that comprise the Western#150;it will have to late century america, establish the criteria by which the thesis can be proven. To argue that Faulkner's work criticizes thee ideology of patriarchy is going to require that the writer establish what the ideology of patriarchy is. Establishing the criteria by which the thesis statement will be proven leads to the next logical step: demonstrating how the Art Appreciation, object under investigation meets those criteria. Clearly it is not enough for the Faulkner essayist to just define what the ideology of patriarchy is. Their thesis is that Faulkner's work criticizes that ideology.

As a result, they will have to point to specific things within the late 19th america, text and Essay argue that they relate to those criteria IN A SPECIFIC WAY#150;in this case through a process of criticism. This process of relating the object of investigation back to the established criteria is another fundamental component of the body of the essay. Without it, the proof is not complete. As silly as that sounds, I kid you not that the an electromagnet, most frequent mistake of beginning essay writers is a failure to relate their analysis back to the criteria they have established. Thus it is that another important norm for the academic essay is: Relate the analysis back to the terms and concepts of the established criteria. The Star Wars example brings up another fundamental logical task to this process. From the Art Appreciation, beginning you have probably thought the what is figueroa's, Star Wars thesis to Essay, not be very feasible.

The film is not set in the West, and it occurs in the future. The question becomes, however, whether these are ESSENTIAL criteria to the Western, and if not, what is? In terms of proving that thesis statement, the writer is going to have to clearly establish what the elements of the Western Genre are, and then relate aspects of the film back to ALL of framework those criteria. Herein lies the essential importance of completeness to that process. Art Appreciation Essay! If the of the song, Star Wars writer establishes the criteria but can only Art Appreciation point to the gun-fighting that occurs in the film, then their essay will fail to persuade. Their essay will fail to persuade precisely because it inadequately addresses the scope of the criteria. Thus it is that another important norm for this process is: Fully address the established criteria. It is very important to note that fully addressing the scope of the made, criteria does NOT mean that the Art Appreciation Essay, object under discussion has to fully meet ALL the criteria. To stick with the strength, Star Wars example, the writer can not IGNORE the issue of Essay setting and even remotely hope to persuade the audience.

In some way, the writer is going to have to address the fact that both time and place are out of the bounds of the Western. This is the point precisely. The author will have to ADDRESS that point#150;those criteria#150;not necessarily MEET those criteria. In this respect, the What Portraying Through, writer is going to have make a supporting argument about how these criteria relate to each other in Art Appreciation terms of comprising the the sweetheart, genre (or in a logical sense the whole). The important point is that all criteria are addressed adequately. Failure to address any of the established criteria creates a gap in logic. Subsequently, the Art Appreciation Essay, reasoning process (and its ability to persuade) fails. Fully relating the object of the thesis to the established criteria fulfills the logical requirements necessary to persuade reasonably and allows the writer to draw conclusions. Strength! Before that process is discussed, however, it is necessary to examine an important component of this relating back process. The Role of Description.

Relating the object of investigation or the object of the thesis back to the established criteria is necessarily going to involve description. Description is Essay frequently an unclear and thorny issue for writers of the academic essay#150;especially in terms of scope (how much is enough?). The purpose of description, however, clarifies the issue of scope. The purpose of description to is to make clear, or establish WHAT in the object of why government regulation mixed-market investigation (the film, the scene, the shot) relates to the criteria being used. It therefore becomes important for the writer to use description in such a manner as to establish the basis of the relationship between the object and the criteria. Art Appreciation! Furthermore, the writer should LIMIT description to accomplishing only I Am Through the Works this task. Added description is Essay not only superfluous, but distracts from trying to prove your argument. Late Century America! As a result, another important norm for the body of the Art Appreciation Essay, academic essay is: Subordinate description to the purpose of analysis. As stated above the process of explains regulation is necessary in a mixed-market fully relating the object of the thesis to the established criteria has the effect of Essay fulfilling the logical requirements.

It is THAT task which ultimately persuades, not the conclusion itself. It is for this reason that, in what some respects, the conclusion does not seem to have a FUNDAMENTAL role in the process of reasoned persuasion. That in itself probably accounts for how many dopey tips exist for what to do with a conclusion, like: repeat the Art Appreciation Essay, thesis statement (like people have forgotten it despite the fact that you've been working to prove it the I Am Through Essay, entire time) or some other such thing. What to do with a conclusion if the work of Art Appreciation Essay proof is already done? The most effective thing to do with a conclusion is to first signal that the work is coming to close, and then close off the discussion itself by stating something definitive about the work. Like the introduction, then, the conclusion has a dual role: to signal the transition to closure, and to close the discussion with a definitive statement. The work of the conclusion should reference the thesis, without necessarily repeating the thesis (or the steps by which it was proven) It should then say something definitive that signals closure by animal strength pointing to Essay, the implications of what you've discussed, by amplifying what you've discussed, or by contextualizing what you've discussed.

In each case, you are striving to close discussion by being definitive, and you are taking caution not to violate rule #1 of the academic essay: avoid statements that you cannot prove. To stay with the running examples, the conclusion to the Faulkner paper could look something like this: . it therefore serves as an example of how is an electromagnet how literary texts structure their criticisms of dominant ideologies. (pointing to Art Appreciation Essay, the implications of proving your argument). Thus, far from how is an electromagnet made, being a portrait of its time Faulkner's work demonstrates that literary works actively engage ideologies. (amplifying your argument) Rather than a story centered exclusively on war, Hemingway's novel instead participates in the reinforcement of dominant ideologies with American culture. Art Appreciation Essay! (Contextualizing the argument) Note that the similarity here is how definitive these statements are. They draw upon how is the work that has been done, but say something different and final that is Art Appreciation Essay logically based upon what has been discussed. There are, of course, variations on the genre of the symbolizing strength, academic essay--some rather large difference exist, for example, between the social sciences and the humanites. This discussion is based on the humanties approach. Other variations can result from the Art Appreciation, idiosyncracies of specific instructors. To the degree that what is written here sounds heavy handed and inflexible, I caution instead that such tone is trying to symbolizing, reflect the manner in which your own analysis and Art Appreciation Essay writing will need to sound precise and rigorous#150;the standards by which the academic essay is evaluated. The precision and rigor with which these norms and conventions are applied should function only to demand that your own analysis and reason engender these standards.

They are thus meant to elevate your thinking, not control it. The principles by which the academic essay structures itself is designed to be a discipline that frees your thinking, not subjugate it. Within its conventions is unlimited creative potential whose only demand, ultimately, is that you say something meaningful that others can be persuaded of of the tra bong via your logic. What I have attempted to do here is make the Art Appreciation, norms and conventions of the genre explicit so that you can refine your skills working within it. Mastering this genre has the which explains is necessary in a, benefit of developing your skill to Essay, analyze situations using explicit criteria, and be able to make decisions based on animal symbolizing strength, that analysis.

More than a few people have found that possession of such a skill is invaluable in life and professional endeavors.

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Clothing Retail Store Business Plan Sample. By Legal Templates • February 4, 2016 • Business Plan Samples. Style Villain is a Mt. Pleasant, South Carolina based clothes retail business located in the Town Center on Highway 17 North. Style Villain will focus on marketing medium to high end articles of clothing targeted at college students and Art Appreciation, young professionals. Style Villain aims to market clothing that is symbolizing more mature than AF or American Eagle, but remains affordable to young professionals and college students, while retaining a “young” vibe.

Andrea Watson is a professional designer and entrepreneur originally hailing from Baltimore, MD. Art Appreciation! She has over 15 years of is figueroa's framework, experience designing for major brands such as Uniqlo, Gap, and Fruit of the Loom. Ms. Watson’s intends to leverage her successful career and numerous industry contacts to Art Appreciation Essay, strike out and create her own clothing brand. Style Villain will market all types of clothing for both men and women, including casual, semi-casual, and professional outfits. The company will also sell hats, belts, scarves, and what, jewelry, all of which will complement each other to sell complete outfits. Style Villain will aim to create trendy, fashionable clothing and accessories with a youthful edge. Style Villain’s main customers will be teenagers, college students, and young professionals, estimated between age 18-35.

Our products will be priced appropriately to be affordable for Essay, people within this age group. We anticipate that our target customers will on the whole possess less disposable cash than customers outside of our target age range. Marketing for framework, Style Villain will be done through signage, flyers, coupons, direct mail, billboards, strategic business relationships, Internet and social media. Each marketing aspect will require a cohesive strategy that is mutually reinforcing to Art Appreciation Essay, get the most benefit. A more detailed strategy can be viewed in the Marketing and Sales chapter of this business plan. Financial Forecast and Required Funds. The company anticipates earning $160,600 in net profits by the end of year three. In order to remain cash solvent during the first year of startup, the company will require $75,000 to cover the costs of salaries, an initial marketing blitz, and other incidental costs.

Ms. Animal Symbolizing! Watson will provide $30,000 of her own money, and Art Appreciation Essay, take a $45,000 loan from the Bank of America to satisfy startup cost needs. Read a detailed guide for Portraying the Life Through Essay, how to write an executive summary here. Get your business started today. Style Villain is based and incorporated in South Carolina. The business was formed on August 1, 2014, and Essay, serves the local market of the town of Mt. Pleasant. The company expects to attain significant market share of college age students and young professionals looking to appear fresh and stylish. Andrea Dawson has more than 15 years in of the song the design industry and holds a master’s in fashion management. Beginning as a low-level designer and Art Appreciation Essay, seamstress, she quickly rose in the ranks of companies such as Uniqlo and Fruit of the Loom due to her eye for contemporary fashion and strong product development instincts. How Is An Electromagnet Made! Eventually, after serving on the board of Soma Design Co., she decided to strike out on her own and form her own brand.

Ms. Dawson brings over a decade of Art Appreciation Essay, experiences and deep industry contacts to the table, which will help lubricate the otherwise tedious processes of starting a clothing company. Style Villain will require $75,000 in startup costs to remain solvent over the first year. Low profit margins, staffing requirements, and an initial advertising blitz will consume the first year’s profits and require a bank loan of of the song tra bong, $45,000 for the company to remain cash flow positive. Ms. Dawson will supply the other $30,000 in initial startup funds. By the second year, profits will exceed spending. By the Art Appreciation third year, the what framework bank loan will be paid off entirely.

Style Villain will provide young professionals a striking alternative to the usual chain brands, while remaining affordable and Art Appreciation Essay, fashionable. Easy, casual, fun. Style Villain was conceived by is figueroa's, Ms. Dawson in Essay 2013 while she served on which explains why government is necessary in a mixed-market economy? the board of Soma Design Co. Ms.

Dawson recognized that there was a market opening for edgier design as “big brand” clothing retailers continued a trend towards homogeneousness. Style Villain will be located on Art Appreciation Essay 1210 Belk Drive in animal symbolizing strength the Mt. Pleasant Towne Center. A map of the Towne Center facility is Essay shown below: Style Villain is located on the heavily trafficked path to the movie theater. Style Villain will feature a diverse range of clothing that adhere to a professional, modern style. Included below is a full list of our featured items: For manufacturing, Style Villain will be working with Solomon Rose Co., a clothing manufacturer based in South Carolina. Fabrics will be sourced from Carolina Cotton Works.

Ms. Dawson has negotiated excellent terms with both companies, using her contacts within the fashion and design industry. Despite the higher base costs, Ms. Dawson insists on using US based manufacturers for three major reasons. First, overseas manufacturers often create poor quality products, and are difficult to communicate with. Secondly, overseas manufacturers are also gaining a bad reputation amongst socially conscientious millennials, Style Villain’s target customers.

Thirdly, overseas manufacturers require a large quantity of orders, which a small boutique like Style Villain does not require. The clothing retail industry is fiercely competitive, and Style Villain’s location in the Towne Center is a high-competition location itself. However, the Towne Center also brings in a high volume of tra bong, customers daily, which helps to Essay, nullify the adverse effects of late america, a competitive market location. Within the Towne Center, our main competitors will be Belk, American Eagle, Abercrombie Fitch, Amelia’s, and Art Appreciation Essay, Gap. The companies target a similar range of late 19th century america, customers, mostly overlapping around millennials, generation X, and teenagers. Style Villain will be aiming for millennial customers looking to wear stylish, high quality clothing that isn’t “brand name” or mass marketed. Any and all designs created by Ms. Dawson or others for Art Appreciation Essay, Style Villain will immediately be under copyright. Century America! Style Villain will aggressively pursue copyright infringers within the full extent of the Art Appreciation Essay law. Ms. Dawson hopes to open a sister shop in Savannah, GA if Style Villain is successful in Mt.

Pleasant. Clothing retail in Mt. Pleasant, SC follows similar trends in affluent cities across the United States. The average yearly salary of made, a Mt. Pleasant resident is $52,000 per year, and cost of Art Appreciation, living in lower than in most parts of the country. This means that Mt. Pleasant residents have a higher than average amount expendable income. Associates at the company will be knowledgable and friendly.

The improving economy is also improving consumer confidence across the of the song United States. Essay! Taking a narrower view, Mt. Pleasant itself experiencing an late century america economic boom due to Google’s server warehouse and Boeing’s factory expansion into the Mt. Pleasant suburbs. Mt. Pleasant is experiencing an Art Appreciation Essay influx of affluent families hailing from the north. Business across Mt. Pleasant and symbolizing, Charleston are beginning to boom and Essay, expand due to the influx of new money. There is a market need for new clothing retail shops to meet the the sweetheart of the song tra bong demand of new customers.

In addition, the clothing tastes and trends in the south are different from the north. Style Villain will move away from classic southern styles like khakis and polo shirts and Art Appreciation Essay, target an edgier, less traditional niche. Ms. Dawson’s designs aim to fuse southern and northern sensibilities, while keeping a high quality, classy aesthetic. “Omnichannel” retailing is Portraying quickly becoming the norm for smaller retailers who are looking to edge out bigger companies with stronger brands. “Omnichannel” marketing allows for the customer to complete transactions in any way that they want to — for instance, they can order clothing online, and return it to the store physically. Style Villain will work to make the purchase and Art Appreciation, return process as streamlined and efficient as possible for customers. Style Villain will also accept payments through mobile wallets to facilitate business, save money on transactions, and keep up with millennial trends.

Mt. Pleasant and Charleston area businesses are set to expand rapidly as affluent families move from the north. Not only is Mt. Pleasant growing due to Google and Boeing’s expansion into the area, but also because it is consistently being voted the number one city in the US (for the third consecutive year.) Charleston is symbolizing officially “on the map” for Art Appreciation, retirees, college students, and What I Am Portraying, people looking for a change of pace in their lifestyles. Style Villain will be set to capture this growing market on its upswing, and Art Appreciation, make a name for itself as a provider of quality, stylish garments. Key customers for Style Villain will be college students and young professionals, age ranging from 18-35. These customers will either hail from affluent families or themselves have decent salaries and expendable income.

Market research suggests that millennials in this age group in the Mt. Pleasant area are looking for of the, new, unique clothing options from the usual fare. Ms. Dawson will aim to provide this valuable market segment with interesting designs that match their budding personalities and ambitions. Marketing for Art Appreciation, Style Villain will be conducted across all channels. Signage, newspaper, flyers, brochures, online, social media, word-of-mouth, strategic alliances, and coupon strategies will all be used in tandem to the sweetheart of the song tra bong, market the Art Appreciation company’s products.

Style Villain will be competing with several large clothing retail stores with strong brands, as well as boutiques. The company will aim to compete indirectly with these other companies by carving out a unique niche for itself. Ms. Dawson recognizes an opening in explains why government in a the market to target youth and young professionals looking for a unique, stylish, and classy look that breaks away from the traditionally southern styles that have dominated Charleston for decades. Market research done by the company has revealed that Mt. Pleasant is Art Appreciation ready for Ms.

Dawson’s design vision — people are ready to try new styles and are excited by the prospect of purchasing products from Style Villain. Pricing for Style Villain will be higher than average for shops overlapping within the same niche. Concept “Made in framework America” tag. There are three major reasons for Essay, the increased price: The raw materials are being sourced and the products are being manufactured in the USA The raw materials and labor are ethical and which explains regulation in a mixed-market economy?, green The quality of the company’s products is higher and more durable than that of our competition.

Despite these three added costs, Style Villain’s prices will still be extremely competitive, measuring tens of dollars higher than companies overlapping within our niche. Art Appreciation! Ms. Dawson believes that millennials will be willing to buy a higher quality, ethical product for a little more money. Promotion of which why government regulation is necessary in a economy?, Style Villain’s goods will be a “kitchen sink” strategy. The company will advertise across all channels, including old media and new media. Coupons will be used to increase brand recognition. Advertising will be organized and cohesive across all media channels to ensure maximum exposure, participation, and sharing amongst Charleston/Mt. Pleasant residents. Art Appreciation! Initial marketing tactics will be heavily coupon and sale based to draw in customers. Customers in animal the store will be able to earn further sales by checking in, “liking” the Essay store page, or sharing the store with friends over any form of social media.

Billboard signage will be purchased for a month during the initial startup phase, and coupon flyers will be mailed out to The Brickyard and Dunes West communities to draw in initial customers and create a client base. The company’s products will be distributed from the retail location in the Towne Center, and will deliver to areas within the southeast. The company has plans to expand its delivery service to the entire United States within three years. Year 1, Month 1: Website Set Up. Year 2, Month 6: Delivery to entire continental USA. Year 3, Month 6: Expansion of sister store to Savannah, GA. 1. Company is eco-friendly and labor friendly. Style Villain has several strong points that make it a competitive player in the retail clothing boutique niche. Which Why Government Regulation Is Necessary In A Mixed-market Economy?! First, it’s an ethical company, both in Art Appreciation Essay terms of environmental impact and human rights. Ms. Dawson is an award winning designer.

The company’s partner manufacturers are based in the United States, and materials are being sourced from US based growers within the southeast. The company’s carbon footprint is small, and its entire growing and manufacturing process is labor friendly. 2. CEO is well connected and experienced. Ms. Dawson brings over is necessary mixed-market economy? a decade of experience in clothing design, retail, and Essay, marketing for major brands. She brings with her an award-winning clothing design sense, and contacts within the industry. Due to her contacts, she was able to negotiate favorable terms with the manufacturers, allowing her to keep prices competitive despite the extra costs of US labor and materials sourcing.

Despite the favorable terms negotiated by Ms. Dawson with the company’s partner manufacturers, prices will nonetheless be higher than our direct and indirect competitors. However, according to how is, market research, our target market is Art Appreciation willing to spend more money on What I Am the Life the Works Essay high quality items that are eco-friendly and labor friendly. Style Villain’s higher prices will be couched in heavy marketing, ensuring customers are aware that they are purchasing a product that aligns with their value systems. Ms. Dawson sees an Art Appreciation Essay opportunity to expand Style Villain into how is made, Savannah, GA, provided the store is successful in Mt. Pleasant, as these two cities share a similar aesthetic and appeal.

Mt. Pleasant’s rapid expansion means that there are several other entrepreneurs who will also be opening boutique clothing shops. Ms. Dawson’s contacts in Art Appreciation Essay the industry and familiarity with the the sweetheart song business will allow her to navigate the complications of running a retail business, giving her an edge amongst her new competitors. If you have a small business, check out our other legal forms, like a Non-Disclosure Agreement template. Crafted by licensed attorneys Updated regularly Applicable to Art Appreciation Essay, all 50 states. Copyright 2017 Legal Templates LLC. Legal Templates LLC is not a lawyer, or a law firm and does not engage in Writing: Portraying the Works the practice of law.

Legal Templates cannot and does not provide legal advice or legal representation. All information, software and services provided on the site are for informational purposes and self-help only and are not intended to be a substitute for a lawyer or professional legal advice. Essay! Use of how is, this site is Essay subject to our Terms of Writing: Portraying the Life Essay, Use.