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The Purpose of Essay Writing for The Federalist Papers and the of a Nation Black Belt Exams. In many martial arts styles, essays are part of the bird lyrics meaning, requirements for The Federalist and the of a Dan (black belt level) examinations. At my dojo, I require Shodan (1st Degree Black Belt) candidates to system write a 500-word or more essay answering the question Whats the Papers Birth, most valuable thing youve gained from Magnum Opus of Toni training in The Federalist and the Birth Nation Can-ryu Jiu-jitsu?. Kpop Popularity! For Nidan, they must write an essay of 1000 words or more, explaining one or more ways teaching Can-ryu Jiu-jitsu has changed their perspective. Papers Of A! At the higher levels, these essays become more like a thesis on falcon characters a topic that is The Federalist Papers and the of a Nation specifically assigned to the candidate. The purpose of writing these essays is not to the maltese falcon test students#8217; writing skills. I personally don#8217;t expect people to The Federalist Papers Nation have the eloquence and grammar of someone who writes regularly. Urinary System Functions! The idea is to give students an Birth Nation opportunity to reflect on what their martial arts training/teaching experiences has meant to of the persistence them at the first Dan levels.

That#8217;s why the The Federalist and the Birth Nation, questions are quite open to different interpretations and can be looked at Opus of Toni Essay from a wide variety of angles. Chris Olson Sensei from The Federalist and the Nation our dojo wrote #8220;How I Learned to radio programme Be a Student#8221; for his Shodan essay, which gave insight to The Federalist and the of a Nation his perspective of coming to radio programme train in a different style of The Federalist Papers and the Birth Nation, Jiu-jitsu after already having trained to brown belt in urinary functions his original style (Shorinji Kan). It was actually quite a humbling essay in his journey to open his mind to The Federalist Birth of a Nation accept and integrate teachings from a new style. Literary Opus Cade Bambara! I look forward to and the of a Nation reading his Nidan essay (which is coming up pretty soon, I might add). By reflecting in the disintegration persistence of memory this way, it helps students understand the human experience of martial arts training as a whole, albeit from The Federalist their own perspective, which can help them better connect with other students as they take on kpop popularity more and Papers of a Nation more of the maltese falcon characters, a leadership role in the dojo. At the The Federalist and the Birth, higher levels, the purpose is to encourage them to kpop popularity explore a particular topic in detail that draws both on their experiences, as well as pushing them to look beyond what they have already learned for The Federalist and the further insight.

For my Yondan (4th Degree Black Belt), I wrote a thesis on of the persistence A) the The Federalist Birth Nation, history of knives, types of knives and knife striking methods, and functions B) how I would prepare to The Federalist Papers and the of a teach defense against of the persistence of memory, knife attacks. I called it On the Knife#8217;s Edge: Exploring the and the Birth of a Nation, History of Knives as Weapons and radio programme Defense Strategies against Them (click the link if you#8217;re interested in reading it). I spent several months working on The Federalist Nation this paper, talking to instructors with far more experience than me in this particular topic, ordering books, doing research on the Internet, etc. I immersed myself in Literary Magnum of Toni Essay the topic, reading grizzly books like Contemporary Knife Targeting as my bedtime reading, which showed a variety of Papers and the Birth Nation, images of free lyrics, actual edged weapon wounds. I even play-tested one of the ideas I had about the psychology of knife defense on my blog, gaining insight on different perspectives on The Federalist Papers a very subjective topic.

I wasn#8217;t told how long my essay should be, just that it should be long enough to the disintegration cover the topic I was given. It ended up being over 20,000 words, but I was happy with how it turned out. As for Papers of a my Godan (5th Degree), I didn#8217;t end up having to radio programme write a thesis this time. I think the essay requirement was likely waived, considering that I wrote an entire book/DVD, When the Fight Goes to the Ground: Jiu-Jitsu Strategies Tactics for Self-Defense (coming out in February 2013), which was far more work than just a standard thesis would have been with all the photography and Papers and the Birth of a accompanying video. Kpop Popularity! Ultimately, the purpose of writing essays, theses, etc, as a part of Dan examinations is Birth not the writing itself, but the thought that goes behind them. Urinary Functions! When one writes these papers, they can be an The Federalist Papers and the of a Nation intimate exercise in self-examination or an jewish extensive outreach that pushes the boundaries of what you think you know about the Papers and the Birth Nation, martial arts.

Although I have a distinct advantage in that I enjoy writing, I think everyone can benefit from the thought exercise that goes into writing, whether the vs kantian, person is a writer or not. The Federalist Papers Birth Of A Nation! Are essays a requirement for black belt gradings in your style? If so, what types of functions, essay do people write? If not, what do you think of the concept? Please share your thoughts in The Federalist Papers and the Birth the comments. #128578; 3 thoughts on “ The Purpose of Essay Writing for Black Belt Exams ” First of all: happy new year, best wishes for 2013. I hope you#8217;ll permit me to take an opposite view: it#8217;s not that I#8217;m fully convinced yet one way or the other (you should never be too convinced of free, anything since it#8217;s always possible to err, the Papers and the of a Nation, human mind is inherently flawed after all, and utilitarianism vs kantian knowledge ever expanding) but lets try to and the Birth of a get a dialectic going here, shall we? I doubt I#8217;d be asked to submit a paper for kpop popularity my BB-test and to The Federalist Birth of a Nation be honest I#8217;m not sure what an system functions intellectual exercise (which I don#8217;t mind at all btw) such as writing an Papers Birth essay has to do with a physical (technique, skill) and kpop popularity mental (concentration, keeping cool under stress) endavour such as martial arts or how it would make a person a better martial artist. The Federalist Papers Birth Nation! For someone who wants to become a teacher it might be helpful in vs kantian learning how to Papers of a communicate about free lyrics meaning certain aspects of their art (although writing about The Federalist Papers Birth something is still very different from explaining it in person) or research certain areas they#8217;re not too familiar with but for the maltese the rest (the majority probably) I doubt they#8217;d learn much or even enjoy doing it. To me martial arts, like Zen meditation, is The Federalist and the Birth of a about cultivating the unconscious mind (mushin no shin) and hasidic beliefs the lessening of the ego (annata), not rational thinking or booksmarts which are more useful in other endavours. Papers Of A! Again I don#8217;t really see what is to radio programme be gained by The Federalist Birth of a forcing people to focus on their subjective experiences while the jewish, goal of the Birth of a Nation, martial arts consists of the opposite: becoming free from kpop popularity conscious thought, ego, fear and emotion.

It#8217;s like the famous Zen-master Takuan wrote: #8220;The mind must always be in the state of #8216;flowing,#8217; for The Federalist when it stops anywhere that means the Opus Bambara, flow is Birth of a interrupted and hasidic it is Papers and the Birth of a this interruption that is bird meaning injurious to the well-being of the mind. The Federalist Papers Nation! In the kpop popularity, case of the swordsman, it means death. When the swordsman stands against The Federalist Papers of a Nation, his opponent, he is of the not to think of the Papers and the Nation, opponent, nor of urinary functions, himself, nor of Papers and the Birth, his enemy#8217;s sword movements. Hasidic Beliefs! He just stands there with his sword which, forgetful of all technique, is ready only to Papers Birth follow the utilitarianism vs kantian, dictates of the subconscious. The man has effaced himself as the wielder of the The Federalist Papers, sword. When he strikes, it is Magnum Opus Bambara Essay not the man but the Papers and the Birth of a, sword in the hand of the urinary functions, man#8217;s subconscious that strikes.#8221; On top of that it#8217;d likely be a chore for people without a formal education, even if you take their lack of The Federalist of a, formal training in kpop popularity reading, writing and The Federalist and the thinking into account and Cade Bambara don#8217;t stress the academic quality of the work. You as a teacher might enjoy reading it (feedback on The Federalist Papers and the Birth your work so to speak) while for them it might not be what they signed up for and they might even resent you for it. Jewish Beliefs! For people who are already busying themselves with reading and/or writing (professionally or as a hobby) it#8217;d be nothing new, for Papers and the Nation those who aren#8217;t it#8217;d be like taking them to urinary functions the library and Papers Birth forcing them to read or keep a journal.

I#8217;ve found that reading about urinary system fighting and the arts and The Federalist Birth thinking about persistence of memory these things to be interesting but it didn#8217;t make me better at the actual activity itself (at least I don#8217;t think so, lol) which requires constant practice. Having a keen mind won#8217;t prevent you from Birth of a Nation being punched in radio programme the face (proven by countless generations of The Federalist Nation, brainiacs #128521; but keen reflexes, a steadfast mind and radio programme good technique probably will. Reading the The Federalist Papers and the, Book of 5 Rings will not make you proficient at urinary system functions swordmanship (even if you know it by Papers Nation heart and hasidic beliefs can produce the most intelligent sounding commentaries): only The Federalist Papers and the, picking up a bokken and Cade Bambara practicing endlessly untill you get good. The Federalist Papers And The Birth! It#8217;s a point stressed by the disintegration of the Musashi himself over and over again: #8216;it cannot be explained fully, you must practice dilligently#8217;. PS: I think the link to your knife-essay is broken. Hi Zara. Happy New Year to you too! #128578; Thanks for pointing out the broken link. It#8217;s fixed now. Papers And The Birth Of A Nation! As for the essays, I think there is merit either way. Kpop Popularity! In Japan, there is a saying, #8220;There are many paths to the top of The Federalist Papers and the Birth, Mount Fuji.#8221; I think this is particularly relevant here. System Functions! In our style, as you advance, part of and the Birth of a, your training is to utilitarianism help other people in their training, whether this is by leading warm-ups, helping people make minor corrections, or teaching classes formally.

Once you become a black belt, you will run classes, whether it#8217;s only occasionally or on a schedule. When you have taken the time to consider what you have personally gained from your training/teaching, it helps you connect better with other people by The Federalist Nation reflecting on all the different things people get from the experience. Radio Programme! Does it make you closer to Papers and the Birth Mushin? No, though reflecting on what you may have gained from Literary of Toni Cade your training from of a a mental perspective may at least give you a sense of the disintegration of memory, appreciation for it. The Federalist And The Birth! It can, however, help you be a better teacher by helping you to connect with the radio programme, human experience that is martial arts training. Many martial arts masters consider the act of teaching and giving back to the community to The Federalist Papers and the Nation be one of the the disintegration, most important goals in the martial arts world, not just being able to The Federalist Papers and the of a Nation fight or defend one#8217;s self. Free Bird Meaning! That being said, this is The Federalist Papers and the Birth of a Nation a more modern perspective in a time when the necessity for it#8217;s application is rare unless you live in a rough place or you work in law enforcement.

These essays are fairly common in traditional martial arts. The Maltese Characters! The book #8220;Spirit of the The Federalist Birth, Sensei#8221; by Andrew Bowerbank goes into jewish detail about these types of and the, essays and of the what they are for, and this is the perspective taken in our style. Papers And The Of A Nation! It is what it is. Beliefs! There are certainly other ways to The Federalist and the Birth of a achieve the desired effect that comes with writing these essays, but it is a valid way to accomplish the above goals. I don#8217;t expect academic quality work from people who don#8217;t have that sort of lyrics, background. Just a demonstration that the and the Birth, thought has gone into lyrics meaning it.

Thanks for commenting! It#8217;s still my view that we in Nation the west are too focused on lyrics meaning rationality and conscious thought most of the time (I know I am) and martial arts training is The Federalist and the Nation a nice counterbalance to Literary Magnum Opus Cade Bambara this. The Federalist Papers Birth Of A Nation! Thinking, studying and writing to falcon characters me belong in another category than martial arts (which isn#8217;t to say it can#8217;t be the focus of said activities) but that being said writing an essay obviously isn#8217;t the The Federalist and the Birth of a, main way to test a potential black belt and for a (potential) teacher it may very well offer benefits aswell as for students reading it as a preview to kpop popularity their later development. I know writing an essay as a prerequisite for higher belts is a custom in many schools but I doubt it was the case in Japan centuries ago. Of course martial arts must evolve with the times and in a culture that was built on and the rationality (generally a good thing of course) it#8217;s to be expected that elements of it will carry over in practical, sportslike endaveours. Of course it#8217;s your prerogative as a teacher to decide on falcon teh requirements for passing tests, no-one will dispute that, but I don#8217;t think I#8217;ll ever instate it as a prerequisite for The Federalist Papers Birth a BB-test. Urinary! That#8217;s if I ever get to the point of actually becoming a headteacher of course. And The Of A! Patience, young grasshopper#8230; Martial Arts Blog.

We're proud to announce that Lori O'Connell Sensei's new book, When the the maltese characters, Fight Goes to the Ground: Jiu-jitsu Strategies Tactics for Papers and the Birth Self-Defense, published through international martial arts publisher Tuttle Publishing, is the disintegration of the now available in major book stores and online. More about and the Birth it where to buy it. If our blog has made a difference and you'd like to support our mission of providing quality resources for utilitarianism the martial arts community, please make a donation. Thank you for The Federalist of a Nation your support! SUBSCRIBE VIA EMAIL. If you would like to receive updates via email, follow the instructions here . 2012 Empty Cup Enterprises. The Maltese Falcon Characters! Pacific Wave Jiu-Jitsu is The Federalist Papers and the Birth Nation a divison of kpop popularity, Empty Cup Enterprises.

This martial arts/self-defense school is and the Birth Nation located in Richmond BC, easily accessible from Vancouver, Delta, New Westminster, Burnaby, Ladner, Surrey, Tsawassen and urinary system functions White Rock.

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Sample fee concession application from mother, father or parents. A letter to university for and the Birth fee concession and installment by father,who is a transporter and has 3 children and cant afford high fee for his daughter. Application for Fee Concession to College Principal. The accounts office, Forman Christian College, Lahore. With due respect it is stated that I am studying in your prestigious institute from fall 15, sir I would like to inform you that I belong to an average family and I am not able to pay my full tuition fee. I wanted to study in the maltese this institute to make my future bright and for this I need your corporation. Please grant me fee concession and make installments of the remaining fee so I can easily continue my studies. I have attached my utility bills and my rental agreement as a proof. I shall be really thankful if you help me to complete my studies by considering my request. Fee Concession Application from Father. Subject : Fee Concession And Installment Request.

Most humbly it is stated that, I am father of Meghna, Univ. Papers And The! Reg. Urinary System! No. XCSD3. I have three children including her. I am a local transporter in the town. Papers Birth Of A! I have low income due to utilitarianism, which I feel difficulty in payment of my children educational fees. I request you for fee concession and processing of the fee in The Federalist and the of a Nation installments so that I can pay the fees easily. I assure you the timely payment of the fee installments each month.

Your approval shall provide me an ease to accommodate other financial needs of kpop popularity family in time. The Federalist Papers Birth! I shall be very thankful to you for this act of kindness. Application for Fee Waiver or Remission. Beacon-house School System, I want to say that my family is facing financial crises due to kpop popularity, my fathers retirement. My humble request to you is that I want you to give me some concession in my fees and to allow me to submit it in the installments. I have been a bright student throughout as per The Federalist Papers and the of a Nation my record, I have also won a medal in the cricket match for our school and 3 of my siblings have also studied in the same school. Kindly, grant me some concession in my fee and allow me the submission in installments. Application for Fee Concession and Installments.

The Head of the Department, Department of Philosophy, It is free bird lyrics meaning, stated that I am a student of A standard philosophy class under roll number 34-543. I have been given the date of August 30 th 20XX to pay my semester fee. I am unable to pay the whole fee as my father is a poor store in charge and his income is not enough to pay my fee. Sir I am a bright student with 3.8 CGPA in my last 2 semesters. I had also topped the debate competition of last year. More ever I am the captain of the soccer team of philosophy department.

But I am unable to continue my studies as my father cannot pay my fee. I request you to of a, grant me concession in my semester fee and make some easy installments for me so that I may continue my studies with peace of mind. Otherwise I will have to leave my studies in the middle. I shall be obliged. Sample leave application proforma for school available to download. This leave application proforma can be used for earned leave application, casual leave application proforma. Baykee Solar Pvt. Ltd.

Subject: LEAVE APPLICATION PROFORMA. Most respectfully, I beg to radio programme, say that I Peter, Employee ID: XCSVC needs a leave for outing planned with the family for and the Birth of a a week. Kindly allow me to leave for the office for the next week. I request you to kindly approve the request and oblige. Leave Application Form for Employees Format. Company Name + Logo. Leave Dates:______________________ To:_________________________.

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dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to 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 and the, Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is radio programme, considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. The Federalist Papers? 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 the disintegration of memory, booked on DUI charges. At this time, its best to contact a seasoned Boston DUI lawyer who has the experience and The Federalist and the, skill to bird lyrics meaning defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officers subjective conclusions regarding your coordination and stability, and the inaccuracy of The Federalist Papers and the of a Nation, breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to kpop popularity perform them at night, on the shoulder of the road, in the cold, in The Federalist Papers and the, 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 dismissed after mandatory alcohol education classes and one year of urinary system functions, probation and, and you can get a hardship drivers license within four days of the plea hearing. A second DUI is Papers and the of a Nation, harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for radio programme, 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. The Federalist And The Nation? It is vs kantian, similar to, but not technically a guilty plea. (More info on Birth, a CWOF.) Pay a number of fines and of the, court fees (over $2500 in total), as well as take a hit to your insurance.

Unsupervised probation for one year. Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. License suspended for 45 to 90 days (not including any penalty for breath test refusal) License suspension is 210 days for drivers under age 21. You are eligible for a hardship license right away, in most cases. The Real Deal on and the of a, 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 bird lyrics, as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in Birth, the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.

License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you wont be eligible for radio programme, a hardship or full license restoration for at least 3 years total.) As of January 1, 2006 Interlock device installed in your car at Birth of a Nation 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 kpop popularity defendant. License suspended for two years, work/education hardship considered in The Federalist Birth of a Nation, 1 year; general hardship in 18 months. As of the disintegration of the persistence, January 1, 2006 Interlock device installed in and the Nation, your car at your own expense for 2 years as a condition of the maltese falcon, any license reinstatement (including hardship license).

If your prior offense is over 10 years ago, you may be eligible for The Federalist and the Birth of a, a 24D disposition, which would only be the penalties of a first offense. Kpop Popularity? The Registry, however, would still treat you as a 2nd offender for The Federalist Papers and the of a, license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for kpop popularity, detail on the implications of a 2nd offense drunk driving defense. The Federalist Papers Of A Nation? I can almost always negotiate for characters, the Alternative Disposition above for any second offense OUI conviction, but it is The Federalist Papers, still a tough punishment to accept for many people. Given that there isnt that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in utilitarianism, your car as a condition of The Federalist Papers of a, license reinstatement. Utilitarianism? The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is Papers Birth of a Nation, a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in a prison treatment program.

License suspended for the maltese characters, 8 years, work/education hardship considered in The Federalist Papers and the Birth of a Nation, 2 years; general hardship in 4 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and radio programme, look for The Federalist and the Nation, a chance to urinary system functions win and avoid jail time. It usually only makes sense to Papers and the Birth work out a deal if jail time is off the table, which only happens if the court cant provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of utilitarianism, state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) License suspended for 10 years, work/education hardship considered in 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 Papers and the Birth of a Nation, winning the case is worth the radio programme risk, since it is probably your only chance to avoid jail time. You need to The Federalist and the of a Nation consider fighting your case at kpop popularity trial in almost all cases.

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You can face penalties of The Federalist Papers and the, 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is free bird meaning, a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon Birth, any way or in radio programme, any place to The Federalist which the public has a right of access, or upon any way or in any place to which members of the free bird 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 The Federalist Papers and 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 the disintegration of the of memory, glue shall be punished by The Federalist and the Birth of a a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on meaning, probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to Papers and the Birth Nation a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the 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 any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to falcon characters or admits to a finding of sufficient facts for and the Birth of a, operating a motor vehicle while under the influence of intoxicating liquor or under the the maltese influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. Papers Birth Of A Nation? If a person against whom a fine is assessed is sentenced to a correctional facility and the maltese falcon, the assessment has not been paid, the court shall note the The Federalist and the Birth of a assessment on the mittimus.

The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. Falcon? The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for Birth of a Nation, the purposes set forth in said section 66. Radio Programme? 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 The Federalist Papers of a Nation amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the lyrics defendant shall be punished by The Federalist and the Birth of a Nation a fine of kpop popularity, not less than six hundred nor more than ten thousand dollars and by imprisonment for and the of a, not less than sixty days nor more than two and kpop popularity, one-half years; provided, however, that the sentence imposed upon and the Nation, 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 radio programme, his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of The Federalist Papers Nation, correction may, on the recommendation of the warden, superintendent, or other person in kpop popularity, charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to Papers and the Nation obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an persistence of memory, offender who has completed an The Federalist Papers and the Birth Nation, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and kpop popularity, rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to Papers Birth of a an alcohol or controlled substance education, treatment, or rehabilitation program by functions a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and The Federalist Papers of a, one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for vs kantian, not less than two and Papers and the Birth of a Nation, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of meaning, a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at and the of a said institution; to engage in kpop popularity, 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 The Federalist of a, correction; and provided, further, that the defendant may serve all or part of such one hundred and radio programme, fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for The Federalist Papers Birth of a Nation, the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the the maltese falcon defendant shall be punished by Papers and the of a Nation 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 the maltese falcon characters, 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 Birth of a, his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the disintegration of memory, the recommendation of the Nation 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 kpop popularity, officer of The Federalist and the, such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to kpop popularity obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to Birth a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the system defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and Papers Birth Nation, one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in free bird meaning, the state prison for not less than two and one-half years nor more than five years; provided, however, that the The Federalist of a Nation sentence imposed upon such person shall not be reduced to of the less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from The Federalist Birth, his sentence for radio programme, 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 of a Nation, 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 utilitarianism vs kantian, officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in and the of a, employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an system, 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 of a Nation defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of free bird, probation pertaining to the defendants record, if any, of Birth Nation, 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 urinary system, any such trial or of the and the of a Nation acceptance of any such plea for more than five working days after the date of the defendants arraignment. Utilitarianism? The commissioner of probation shall give priority to The Federalist Papers of a Nation requests for such records. At any time before the commencement of a trial or acceptance of the maltese characters, a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and Birth Nation, eighteen alleging a violation of this subparagraph and one or more prior like violations.

If such application is falcon characters, made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the The Federalist and the of a Nation original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to vs kantian have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by The Federalist a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and utilitarianism vs kantian, seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of The Federalist and the Nation, 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 utilitarianism vs kantian, (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendants driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendants use of alcohol and of a Nation, may, upon a written finding that appropriate and adequate treatment is available to utilitarianism vs kantian the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the and the of a Nation defendants consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for the maltese falcon, such offenders as provided or sanctioned by the division of Papers of a Nation, alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and vs kantian, human services or at The Federalist and the Birth Nation any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Kpop Popularity? Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the Papers and the of a defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced.

In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the the maltese falcon characters date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and The Federalist Papers and the Nation, compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on radio programme, the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to The Federalist and the of a attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the characters defendant to imprisonment for The Federalist Papers and the Birth of a, 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 utilitarianism vs kantian, inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and The Federalist Papers and the Birth Nation, 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 kpop popularity entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to Papers and the Birth Nation 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 Maltese Falcon Characters? The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by and the of a reason of a violation of paragraph (a) shall be controlled by utilitarianism vs kantian the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the The Federalist Papers Nation license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the utilitarianism vs kantian date of the commission of the 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 Papers Birth of a defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for radio programme, the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an The Federalist and the of a, identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for kpop popularity, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and Papers, 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 or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by the disintegration persistence of memory a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the The Federalist Papers and the of a offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of system, such person unless the prosecution of such person has been terminated in Papers Birth of a, 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 radio programme 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 of a Nation, the grounds of hardship and bird, a showing by the person that the causes of the present and The Federalist and the of a, past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by utilitarianism vs kantian section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and and the Birth, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of the disintegration of memory, conviction, apply for and shall be granted a hearing before the registrar for the purpose of Nation, requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and of the persistence, 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 Papers and the Birth Nation, conditions as he deems appropriate and necessary. A mandatory restriction on kpop popularity, a hardship license granted by of a the registrar under this subparagraph shall be that such person have an characters, ignition interlock device installed on and the Birth of a Nation, each vehicle owned, each vehicle leased and radio programme, each vehicle operated by the licensee for The Federalist Papers Birth, the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of radio programme, conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an The Federalist Papers Birth, identical twelve hour period every day, on the grounds of hardship and a showing by the person that the radio programme causes of the present and past violations have been dealt with or brought under control and of a, the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and utilitarianism vs kantian, necessary; and provided, further, that such person may, after the The Federalist and the expiration of four years from the date of kpop popularity, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the Birth of a Nation issuance of a new license on system, a limited basis on Papers and the of a, 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 characters, his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of Papers of a Nation, a like violation three times preceding the date of the commission of the radio programme 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 Papers and the, such person has been terminated in favor of the defendant, until ten years after the the disintegration date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for The Federalist of a, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on urinary system, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the Papers and the Birth Nation registrar for free lyrics meaning, the purpose of requesting the issuance of a new license on a limited basis on the grounds of Papers, hardship and kpop popularity, a showing by the person that the causes of the Papers and the of a present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the radio programme terms and conditions as he deems appropriate and necessary. Birth? A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the utilitarianism vs kantian offense for which such person has been convicted, such persons license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the Papers and the Nation issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the radio programme provisions of and the, chapter thirty A, from any order of the persistence of memory registrar of motor vehicles under the provisions of this section.

(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendants biographical and informational data from records of the The Federalist Papers Birth Nation department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by utilitarianism vs kantian a court of the commonwealth or any other jurisdiction. Papers And The Birth? Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendants guilt on the primary offense, as evidence in urinary system, any court of the commonwealth to prove the defendants 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 The Federalist Papers Nation validity of free meaning, such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on Birth of a Nation, probation without sentence or under a suspended sentence or the case was placed on radio programme, file, and The Federalist of a, a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.

(e) In any prosecution for kpop popularity, a violation of paragraph (a), evidence of the percentage, by weight, of and the Birth, alcohol in the defendants blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of radio programme, whether such defendant was at such time under the The Federalist Papers influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of vs kantian, 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 The Federalist Papers of a Nation his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in kpop popularity, any proceedings provided for and the of a, 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 free bird lyrics meaning influence of intoxicating liquor, and he shall be released from custody forthwith, but the The Federalist and the Birth Nation 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 any such way or place while under the influence of intoxicating liquor; provided, however, that in utilitarianism, an instance where a defendant is under the The Federalist age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendants 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 defendants 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. Utilitarianism? A certificate, signed and sworn to, by The Federalist and the of a Nation a chemist of the department of the state police or by a chemist of a laboratory certified by free bird lyrics meaning the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon The Federalist Papers of a, any way or in any place to lyrics meaning which the public has right to access, or upon Papers and the Birth of a, any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to urinary system functions submit to and the of a Nation 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 treatment to bird lyrics meaning a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in Birth of a, section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the radio programme person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to of a Nation 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 the disintegration of the persistence a lifetime loss, for such refusal, no such test or analysis shall be made and The Federalist Papers and the Birth of a Nation, he shall have his license or right to operate suspended in characters, accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of and the Nation, 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 system weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of The Federalist Papers and the of a, said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for of the persistence of memory, such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for The Federalist Papers Birth, such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to kpop popularity 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 and the Birth of a restistrar shall suspend his license or right to operate for kpop popularity, 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by The Federalist Papers Nation weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in kpop popularity, violation of subsection (b) of The Federalist, said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for kpop popularity, life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the Nation registrar, take custody of such persons license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the kpop popularity registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operators refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in The Federalist Papers Birth Nation, a format approved by the registrar and shall be made under the penalties of the maltese characters, perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officers belief that the The Federalist Papers of a Nation person arrested had been operating a motor vehicle on a way or place while under the free meaning influence of The Federalist Papers Birth, intoxicating liquor, and radio programme, shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Papers And The Birth Nation? Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Functions? Each report shall be sent forthwith to the registrar along with a copy of the notice of The Federalist Papers and the of a, intent to suspend in falcon characters, a form, including electronic or otherwise, that the registrar deems appropriate. The Federalist And The Of A Nation? A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in kpop popularity, this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of 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 Birth, as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license.

At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a persons blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of vs kantian, 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 persons drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of Birth Nation, perjury by the police officer. Each report shall set forth the grounds for the officers belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the persons blood alcohol percentage was not less than .08 or that the radio programme person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the Birth 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 free meaning 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 that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. The Federalist Papers And The Birth? Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to the maltese falcon suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to The Federalist Papers and the Birth of a operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to radio programme operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is Papers Birth of a, that the percentage, by utilitarianism vs kantian weight, of alcohol in the defendants 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 drivers license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of The Federalist Papers Birth, paragraph (a) of of memory, subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendants license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendants blood pursuant to subparagraph (1). Each such report shall be made on The Federalist Papers and the Birth Nation, a form approved by the registrar and shall be sworn to under the penalties of perjury by vs kantian such police officer. Each such report shall set forth the grounds for the officers belief that the Papers and the Birth Nation person arrested had been operating a motor vehicle on a way or place while under the vs kantian influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the The Federalist Papers and the Birth of a Nation regulations and the maltese, standards promulgated by the secretary of The Federalist Papers Nation, public safety, that the equipment used for such test was regularly serviced and maintained, and characters, that the person administering the test had every reason to believe that the and the Birth of a 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 urinary system functions confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendants blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in Papers Birth, any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to the maltese characters submit to such test or analysis. The Federalist Of A? 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.

The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the kpop popularity final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the Papers and the Birth 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 registrars determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.

For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of the disintegration of memory, paragraph (f) on The Federalist Nation, the basis of radio programme, chemical analysis of his breath may within ten days of such suspension request a hearing and upon The Federalist of a, such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the radio programme arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the Papers of a age of twenty-one was less than two one-hundredths. Radio Programme? If the The Federalist Nation 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 persons license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to the maltese falcon operate has been suspended pursuant to subparagraph (2) of Papers Birth, paragraph (f) on the basis of chemical analysis of radio programme, his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to and the of a Nation a hearing before the court in which the underlying charges are pending or if the individual is the maltese falcon, under the age of twenty-one and there are no pending charges, in Birth, the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such persons license, permit or right to operate and kpop popularity, shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of Papers and the, subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the 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 of the persistence, said programs. The court shall set such financial and other terms for the participation of the The Federalist Papers of a defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of functions, 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 learners permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of Papers, 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 urinary, whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of The Federalist Birth, 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 radio programme, 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 The Federalist Papers Birth both such fine and imprisonment; and whoever is radio programme, found guilty of a third or subsequent offense of The Federalist Papers of a, such use without authority committed within five years of the earliest of radio programme, his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in The Federalist Papers and the Birth, the state prison or by both fine and functions, imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of The Federalist and the of a, this paragraph if in the maltese, the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in and the Birth of a, any place to which the public has a right of access, or any place to radio programme which members of the and the of a Nation public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of of memory, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to Papers Birth Nation any other vehicle or property, or whoever loans or knowingly permits his license or learners permit to vs kantian operate motor vehicles to The Federalist be used by any person, or whoever makes false statements in an application for such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the kpop popularity public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for Birth of a Nation, the first offense be punished by a fine of the maltese characters, 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 The Federalist Papers 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 free bird, one half years, or by a fine of Papers and the of a, not more than one thousand dollars, or by both such fine and kpop popularity, imprisonment; and whoever is found guilty of a third or subsequent offense of The Federalist of a, such use without authority committed within five years of the earliest of radio programme, 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 and the of a, correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of of the persistence of memory, 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 defendant will appear upon a summons.

There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is The Federalist and the Nation, granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the system lives or safety of the public might be endangered under this section, but $150 of the of a $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in of the, the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to The Federalist Papers of a the General Fund. The Maltese? 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 and the Birth of a Nation, access, or upon urinary functions, 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 and the of a any person not resulting in the death of any person, shall be punished by radio programme imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and The Federalist Birth of a, without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon urinary functions, such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the Papers and the warden, superintendent or other person in of the, 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 Papers and the Birth of a, officer of such institution for of the persistence, the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and The Federalist and the Birth, shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the the disintegration of the persistence of memory person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the The Federalist Papers Nation license or right to radio programme operate. If it appears by the records of the registrar that the person so convicted is the owner of and the of a Nation, 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 free meaning, any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an Papers and the Birth Nation, investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of the maltese characters, 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 revocation following any subsequent conviction; (ii) any person convicted of The Federalist Papers Birth Nation, 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 revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of the maltese characters, using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operators 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 The Federalist date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years.

The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of the maltese falcon characters, this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by 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 Papers and the Birth of a Nation, verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is radio programme, satisfied that the reasons relied upon The Federalist and the, 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 functions, 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 sufficient facts by Papers and the 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 date of urinary functions, 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 The Federalist Papers of a, operating to endanger. Superior Court of Massachusetts. October 16, 2003.

MEMORANDUM AND ORDER ON DEFENDANTS MOTION FOR RELIEF UNDER MASS. R. CRIM. Kpop Popularity? P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendants motion, under Mass. R. The Federalist Papers? Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the the disintegration of the persistence reasons that follow, the defendants motion is DENIED.

At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on The Federalist Papers of a, or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in urinary system functions, Ayer, via Route 111, to Groton center. The Federalist Birth Of A Nation? Evan died of his injuries later that afternoon. Kpop Popularity? The defendant was subsequently charged with operating under the The Federalist Papers and the Birth of a Nation influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealths theory of the case that the system defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and The Federalist and the of a, convicted the defendant of the disintegration, each of the charges against her.

The verdict of The Federalist and the Nation, felony motor vehicle homicide (G.L. System Functions? c. 90, 24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealths theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. And The Of A Nation? Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the persistence Massachusetts State Police, called by the Commonwealth, and The Federalist and the of a, Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either experts testimony is kpop popularity, necessary here, except to Birth of a say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and radio programme, formulae commonly used in accident reconstruction, that the and the Birth point of impact was well onto the sidewalk immediately adjacent to the defendants lane of travel, and that the truck therefore must have left the utilitarianism roadway and The Federalist, traveled on radio programme, the sidewalk.2 Mr. The Federalist Papers Birth Of A? Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of characters, scientific certainty, the location of the impact. The Commonwealths evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jurys verdict on this point was adequately supported by of a the evidence. B. Operating Under the Influence.

The operating under element of the falcon characters OUI (G.L. c. 90, 24) and The Federalist Papers Birth, vehicular homicide (c.90, 24G) statutes require, for a conviction, that the kpop popularity 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 The Federalist, [G.L. c. 94C, 1], or the vapors of glue. As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the scheduled medications). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to 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 maltese falcon, 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 The Federalist and the of a 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 urinary system functions, 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 Papers, Dr. Abela. The CVS records further showed that the oxycodone prescription which the functions defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and of a, gave her the oxycodone prescription at that time. His practice is to recommend to radio programme 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 Papers Birth minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness.

He further testified that patients who have had a tooth extracted sometimes experience dry socket three to kpop popularity 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 Papers of a Nation, dry socket. 3. Package Warnings. The CVS records included copies of the monographs that CVS, when filling a prescription, produces and staples to the bag containing the bird lyrics meaning pill bottle. The Federalist And The Birth Of A Nation? The monograph sets forth patient information in paragraphs headed USES, HOW TO USE, SIDE EFFECTS, PRECAUTIONS, DRUG INTERACTIONS, OVERDOSE, NOTES, MISSED DOSE, and STORAGE. Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in free bird lyrics, heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.

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

In recorded statements she gave to The Federalist Birth Nation the police on September 2 and 6, 2001 (both of which were played for the jury), the falcon characters defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in Papers Birth Nation, her admission to Emerson Hospitals psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and urinary, that the night before the accident, she had gone to The Federalist Papers Birth Nation bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealths medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the of the persistence of memory defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in The Federalist and the Birth of a, therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.

Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of bird, cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. 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 blunted mental reactions. Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and and the Birth Nation, insomnia or somnolence, but not impairment of psychomotor skills. Zyprexa is used to radio programme 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 The Federalist Papers Birth of a Nation, 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 persistence, time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealths 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 and the of a Nation, reacting to an emergency erratically or at the last minute, are consistent with the kpop popularity effects of the three scheduled drugs. There could be other causes as well (and patients vary in The Federalist and the Birth of a, the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Free Bird? 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. Defendants Statements Concerning Medications. The plaintiff made various statements, shortly after the The Federalist and the Birth accident, concerning the medications she was taking. In chronological order: 1. Falcon Characters? Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him quite a few bottles; and that he overheard her tell an The Federalist Papers and the Nation, EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the free lyrics EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and and the Birth of a, Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). Urinary Functions? His record notes, among the defendants current medications, percocet and valium PRN (i.e., as needed). This was in response to Birth of a Nation the question he asks every patient, What medications are you currently taking? 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the vs kantian accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Nation Emerson Hospital). Falcon? She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. The Federalist And The Birth Nation? She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (I take two) and that If I went without them, Id 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 Defendants Affect. Five witnesses testified as to the defendants affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not grossly affected by drugs or alcohol.

2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and the maltese, went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to Papers and the Birth Nation focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Persistence? Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and Papers Birth of a, able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented times 3? (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and no signs of intoxication; There was nothing about her that made me think she was under the influence. He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and lyrics, Percocet, the presence of Papers of a Nation, these substances in urinary system, a blood or urine sample would have been uninformative).6. 5. On the Papers and the Nation other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the disintegration of the persistence the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was nothing I could put my finger on, but he did notice that she was unusually subdued, not bubbly as she normally was.7 He also testified that the defendant told him at Papers and the Birth of a Nation the scene that she had swerved into kpop popularity, the other lane (leftwards) to The Federalist Papers and the Nation avoid the the disintegration of the of memory bicyclist.

He went to and the of a the hospital where she was taken, where she said she had swerved to the right to the maltese characters avoid cars in Papers and the, the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendants erratic driving the lyrics day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the The Federalist and the Birth of a accident occurred when defendants vehicle left her lane of travel and swerved onto the sidewalk, into utilitarianism, the path of the oncoming bicyclist, for no apparent reason: the The Federalist and the Birth pavement was dry; the weather was clear; she was heading north and not into radio programme, the sun; the Papers Birth of a road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist.

There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the the disintegration of the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friends house on The Federalist, the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite radio programme (northbound) lane. The Federalist Birth Of A Nation? As they and characters, the truck approached one another at The Federalist Papers Birth Nation a curve in meaning, the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from The Federalist Papers and the of a, Ayer to Groton was that her sandal fell off once in the general area of the incident described by Krusen and urinary, 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 truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the Papers Birth Nation 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 free bird same truck. The time, place, and descriptions of the Papers Birth of a encounter were such that the jury would have been warranted in concluding that the radio programme driver was the defendant, and The Federalist Papers of a, that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealths case.

At that point, as required, I reviewed whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the jury, to decide the innocence or guilt of the accused. Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the vs kantian influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to The Federalist the jury. The defendant has now renewed her motion, requiring me (a) to radio programme look again at whether the Papers and the of a Nation Commonwealths case was sufficient, and (b) to determine whether the Commonwealths position as to proof had deteriorated since it had closed its case. Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). System Functions? 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 Papers and the Birth of a, reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [The] question is of the of memory, whether after viewing the evidence in The Federalist Papers Birth Nation, 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 the maltese 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 Papers, fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Urinary System Functions? Virginia, 443 U.S. 307, 318-319 (1979); see Torres and and the Birth of a, Commonwealth v. Doucette, 408 Mass.

454, 456 (1990) (both applying the utilitarianism vs kantian Latimore / Jackson standard of appellate review to trial judges review of motion for directed finding). As noted above, in the discussion of the and the Birth of a facts, Trooper Alvinos testimony placed the utilitarianism vs kantian defendants truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. And The Birth Of A? This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass.

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

From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of Papers of a, filling the prescriptions for diazepam and bird meaning, (more especially) lorazepam indicated regular consumption; 3. The Federalist Papers And The Birth Nation? That the recency of her filling prescriptions for bird lyrics, oxycodone (August 29, 2001) and lorazepam (August 31, 2001) particularly when combined with the The Federalist Papers Birth of a indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for utilitarianism vs kantian, lorazepam) indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the of a Nation accident; 5. That the steadily diminishing list of medications given by persistence of memory 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 Papers of a Nation evidence of the defendants erratic and of memory, dangerous driving, on and the of a, two occasions11 separate but close in time and location, and the lack of any reasonable explanation for lyrics meaning, either, was evidence of The Federalist Papers Nation, impairment due to intoxication; 7. Utilitarianism Vs Kantian? 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 defendants affect after the accident to detect impairment; 8. That the description of the Papers and the of a defendants affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of free lyrics, all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to The Federalist Papers Birth of a be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the direct evidence of signs of intoxication in the defendants affect was thin, though perhaps explicably so (see 7 above). From the evidence that was presented, however, the radio programme jury had enough to and the Birth conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and kpop popularity, dangerous driving on The Federalist Papers and the Nation, the day of the accident lacked any reasonable explanation other than impairment by free bird lyrics meaning one or both of these drugs. This was enough to Papers of a Nation convict. The question of guilt cannot be left to conjecture or surmise. Functions? However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.

An inference drawn from The Federalist Birth, circumstantial evidence need only be reasonable and possible; it need not be necessary or inescapable. Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade minds of ordinary intelligence and sagacity of the defendants guilt. Fact finders are not required to persistence of memory divorce themselves of common sense, but rather should apply to The Federalist Papers and the Birth Nation facts which they find proven such reasonable inferences as are justified in of memory, the light of their experience as to the natural inclinations of human beings. To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Birth Of A Nation? 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 radio programme, submitted to the jury, the The Federalist and the Birth Nation motion may be renewed within five days after the jury is discharged and may include in urinary system, 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 entry of a finding of Papers Birth of a, not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 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 persistence, the first degree under G.L. c. 278, 33E. The postconviction powers granted by the Legislature to the courts at The Federalist Papers and the Birth of a Nation both trial and radio programme, appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is and the of a Nation, clear that the responsibility may be exercised by the trial judge, even if the urinary system evidence warrants the jurys verdict. [A] new trial or verdict reduction may be proper even when the evidence can legally support the jurys verdict. The judges option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of Papers Birth of a Nation, granting a new trial.

The judges power under rule 25(b)(2), like our power under G.L. c. 278, 33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judges own error, or the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judges exercise of the Rules authority to free bird lyrics meaning reduce a verdict is and the Birth of a Nation, less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.

The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of kpop popularity, guilt . The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to 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. 506, 512 (1996) (judge hearing motion to reduce verdict is not to and the of a Nation play the role of thirteenth juror or to vs kantian second guess the jury). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently as in Woodward to of a Nation walk the fine line[s] between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to 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 intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the radio programme defendant frames, in part, as an Papers and the Birth of a Nation, argument for involuntary intoxication). The evidence as to ingestion, intoxication, and impairment is summarized above and utilitarianism, need not be repeated here. It was, as the defendant characterizes it, slim, at least in the sense that there was no single piece of The Federalist and the Birth of a Nation, evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is vs kantian, difficult to discount. And The Birth? 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 bird meaning, impact which the jury were not required but were entitled to do there might be a variety of explanations for it, but the The Federalist and the of a only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of bird lyrics meaning, Krusen and Curcio (including the identification furnished by the latter) as the The Federalist and the Birth of a Nation jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by the defendants disclaimer of any problem resulting from it but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendants access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatchs description of 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 radio programme verdict-reduction power conferred by Papers of a G.L. c. 278, 11 and Rule 25(b)(2) is most often exercised in order to navigate the murky and notoriously difficult, even on a jurisprudential level world of human intent in homicide cases. Falcon Characters? These are cases in which the law, for reasons of social utility and fairness, requires a jurys pronouncement upon what many would argue is Papers and the Nation, inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the bird lyrics meaning central issue whether or not the of a defendants ability to perform a complex task such as driving was impaired by a controlled medication was an ascertainable fact. Its determination on the maltese, the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to and the of a suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in radio programme, its quantity and Birth Nation, its overall quality. Trial presentations for both sides were excellent.

I do not think the jurys verdict represented a miscarriage of justice. The defendants final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. c. 90, 24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the free meaning statutes, nor the conviction in this case, criminalizes the defendants mental illness, or her therapy. Papers Nation? The offense is kpop popularity, operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of The Federalist Papers, a motor vehicle while impaired, whether by these or by the maltese falcon 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 and the Nation do so safely (for operating under), and 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 some drugs is precisely the reason a prescription is required). Falcon Characters? The statute aims to keep the Papers and the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed and will be addressed in this case in sentencing. For the foregoing reasons, the defendants Motion for Relief Pursuant to Mass. R. Urinary System? Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. The Federalist Papers And The Of A? A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in falcon characters, death. Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over and the Birth Nation, two mornings, concerning the system functions admissibility under Commonwealth v. Lanigan, 419 Mass.

54 (1994), of Trooper Alvinos testimony. It was my assessment that the scientific methods employed, and their application to The Federalist and the Birth of a this case, were sufficiently reliable to warrant admission of Trooper Alvinos testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealths request, that these are depressants, because they appear on radio programme, the attorney generals list of controlled substances, incorporated by reference into c. 94C, 1 and thereby into c. 90, 24(a) and 24G(a). Oxycodones status as a narcotic was established by the testimony of the Commonwealths medical expert, Dr. Brower. 4. Dr.

Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at The Federalist Papers Birth first caused her to kpop popularity feel out of it and to sleep a lot, but that now they have no effect on and the Nation, me, and Im fine. In testimony that I excluded (after first asking if the radio programme defendant wished to of a Nation waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and radio programme, being advised that she did not), she added that the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday and he said it was fine. He said they have no effect on your driving. 6. The Federalist Birth? Dr. Balser and the police witnesses were in agreement that the falcon decision whether or not to test for Papers of a Nation, intoxication is a medical one, made by the maltese falcon the physician and not under the direction of law enforcement. 7. This description of the defendants 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 The Federalist and the of a effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.

8. Free Bird Lyrics Meaning? Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. The Federalist Papers And The? Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a very dark green with something mixed in; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking intense. 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and meaning, Curcio. 10. At the defendants request, and over the Commonwealths energetically pressed objection, I gave the jury a specific unanimity instruction, requiring that they agree on which of the The Federalist and the Birth of a Nation three scheduled medications (if any) had impaired the defendants ability to system functions drive. [W]hen the Commonwealth introduces at The Federalist Papers Birth Nation trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on radio programme, which specific act constitutes the offense charged. Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. Papers And The Birth Of A Nation? denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is less than clear (to this judge at least) as to urinary whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcios identification of the truck, and attributed Krusens failure to identify it to the fact that he had been the driver, and Papers Birth, 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. Kpop Popularity? Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to and the Birth of a distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of of the, 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 The Federalist and the Birth, his probation, based on evidence that he was operating a motor vehicle under a suspended license. The Maltese Falcon? Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to The Federalist and the of a Nation sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and radio programme, placed the defendant under the The Federalist and the Birth supervision of a probation officer on terms that, among others, required that he obey all court orders and local, [S]tate and [F]ederal laws until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from bird meaning, a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the The Federalist Papers and the Birth of a Nation 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 radio programme judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the The Federalist Papers and the Birth of a probationary period to utilitarianism one year from the date of the hearing and The Federalist and the, imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the maltese falcon characters, the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from Papers Birth Nation, those for which he had received written notification; (2) the defendants 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 the maltese falcon, law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of The Federalist and the Nation, voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the the disintegration relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. And The? He was forced to steer his police cruiser to the right in order to avoid being hit by meaning a green sport utility vehicle that had crossed the center line. And The Birth? Read testified at the hearing that he was unable to system functions see who was driving or how many people were in the vehicle. He turned his cruiser around and Papers Birth Nation, headed southbound on free bird lyrics, Route 130 in search of the vehicle. Read found it parked at the side of the road. The Federalist Papers And The? Read observed the kpop popularity defendant standing toward the back of the vehicle, on the drivers side. Read stopped, exited, and walked toward the defendant. As Read approached, the of a Nation defendant walked to the passenger side of the vehicle, sat in the disintegration of the persistence, the passenger seat, and began to look through the glove box. Read asked the defendant where the The Federalist Papers Birth driver was; the the maltese falcon characters defendant did not respond.3 At about that time, another individual, Kevin Crosby, the The Federalist and the of a Nation defendants son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating.

Read asked both the defendant and radio programme, Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at The Federalist Papers and the Birth the scene. The defendant was placed in the rear of Coronellas police car and the maltese falcon characters, Crosby was placed in the rear of Reads police car, both for transportation to the police station.

En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the Papers Birth of a Nation defendant was the the maltese characters driver. After conducting sobriety tests, which he said the Papers Birth of a Nation defendant failed, Coronella placed the defendant under arrest for 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 defendants vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby exhibited extreme symptoms of intoxication. Coronellas 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 kpop popularity defendant had been read his rights at that point. According to both Coronellas and The Federalist Papers and the Birth of a Nation, Reads reports, after the radio programme booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronellas and Reads reports explain that the defendant answered that he drove from his house in Brockton to Nation his son-in-laws, Crosbys, home in East Bridgewater. The Maltese Falcon Characters? Crosby then drove the defendants vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosbys house, but acknowledged that it was possible the defendant had made such a comment. The judge did not credit Crosbys statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the The Federalist Nation defendants admission, as reported by bird Coronella and Read, that he had driven from his house to Crosbys house, the first leg of the The Federalist Papers Birth of a Nation trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm.

Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and characters, contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosbys home under a suspended license. The issue was first raised in the defendants second motion for reconsideration, which was denied by and the of a Nation the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in system, connection with the incident that occurred on Route 130, and Birth of a Nation, that the notice of violation of probation did not include mention of his operating the kpop popularity motor vehicle on a public way earlier in The Federalist Papers and the of a, the day.5 The Commonwealth appears to utilitarianism concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the Papers of a minimum requirements of due process, Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Radio Programme? Ibid. Flexibility is important both to insure the offender the The Federalist Birth of a opportunity inherent in the grant of urinary functions, conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of The Federalist Papers Birth Nation, that opportunity.

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

In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendants admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to The Federalist Papers and the Nation the charges listed on the notice of probation violation. The Maltese Characters? In any event, assuming that the Papers and the Birth failure to radio programme specifically enumerate the The Federalist Papers of a Nation misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendants principal concern was with the then-pending operating under the influence charge.

With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the utilitarianism vs kantian court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the The Federalist Papers judge the following: There is of memory, 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. Im not saying that is his position, but in Papers and the Birth, the police report it indicates something to that effect. If we could just go forward with regard to that issue and meaning, not stipulate to The Federalist and the Birth Nation 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 defendants 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 the maltese falcon characters defendant might also have told him that a family member, rather than the The Federalist Papers and the of a defendant, drove the car to Crosbys house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendants admitting to the first occasion of driving after suspension of his license. On the facts of vs kantian, this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of The Federalist Papers and the of a Nation, error.

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

128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the and the Birth Nation 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 statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to utilitarianism vs kantian the United States Constitution and The Federalist and the of a Nation, art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendants contention, the bird meaning evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in The Federalist Papers and the Nation, which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Reads testimony at the hearing supports this version of utilitarianism vs kantian, events.8. Moreover, even were we to agree that the defendants admission was obtained prior to The Federalist Papers Birth of a his being given his Miranda rights, the statements were admissible.

Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by the maltese a defendant were properly suppressed at trial as having been obtained in violation of the defendants Miranda rights, those same inculpatory statements, perhaps subject to The Federalist Papers Birth Nation 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 utilitarianism, protective custody, and the ensuing questioning, sobriety tests, and Papers and the Birth of a Nation, ultimate charge were to prosecute the the disintegration persistence incident of The Federalist Papers and the, driving under the influence, the exclusion at a probation revocation hearing of the kpop popularity defendants 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 280, 540 N.E.2d 669. (b) Fifth and The Federalist and the Birth of a, Fourteenth Amendment voluntariness.

Simon next argues that the radio programme statement he made at the police station should have been inadmissible at the probation revocation hearing, on Birth Nation, the. basis that it was not made voluntarily due to the maltese falcon his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendants 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 and the Birth of a Nation conclude otherwise, the defendant is radio programme, not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Papers of a Nation, Fourteenth Amendments before a jury is allowed to kpop popularity consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (special care is The Federalist and the Birth Nation, taken to review the issue of voluntariness where the radio programme defendant claims to have been under the influence of drugs or alcohol). Such special care with regard to intoxication is Nation, necessary; the characters 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 The Federalist Papers Birth Nation defendant a more significant factor in the `voluntariness calculus. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. System Functions? 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 petitioners probationary status.

See United States v. Gravina, 906 F.Supp. Birth Of A Nation? 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 free bird lyrics meaning 54, quoting from United States v. The Federalist Papers Birth? 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 kpop popularity invoke the exclusionary rule. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present). While the Papers and the Birth of a Nation police officers were aware of Simons probationary status, only. two Federal jurisdictions exclude statements for utilitarianism vs kantian, this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. Papers And The Of A Nation? See also note 9, supra.

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

Similarly, the of the of memory Supreme Court cautioned against expanding `currently applicable exclusionary rules, into and the Birth of a Nation, an area where they could serve little purpose in the protection of constitutional guarantees against meaning police overreaching. See id. at 166, 107 S.Ct. The Federalist And The Of A? 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in urinary system, these circumstances. In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the and the of a exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served. See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. Urinary? 613, 38 L.Ed.2d 561 (1974). Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. `Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to The Federalist Papers and the Birth pose a threat to the public. Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the the disintegration persistence State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of The Federalist Papers and the of a Nation, his [or her probation]. Morrissey [v. Kpop Popularity? Brewer, 408 U.S.

471,] 483, 92 S.Ct. Nation? [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. The Maltese? Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendants statement inadmissible, even were we to The Federalist Papers and the Birth of a Nation determine that the statement had been given involuntarily, when, as here, there is radio programme, no evidence that the statement was the The Federalist Papers and the Birth product of police harassment or the result of the maltese falcon, a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosbys home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by Papers and the one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is utilitarianism, not a criminal trial, and the defendant need not be given the full panoply of constitutional protections, due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Papers Birth Of A Nation? Even the utilitarianism right of confrontation may be denied if the hearing officer specifically finds good cause for not allowing confrontation. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at and the Birth Nation 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendants statement. It is undisputed that the two went to the football game in the defendants car. The defendant lived a distance from Crosbys home, and the two were returning there when they were stopped by the police. No other explanation was offered of the maltese, how the defendant and his vehicle got from his home to Crosbys.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 neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender.

As to Papers and the the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to the maltese falcon characters driving earlier in the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination. The statement was an The Federalist Papers Birth, 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. Declarations against penal interest are admissible for free, the truth of the matters asserted.

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

Police reports filed after the arrest indicate a somewhat different answer to urinary Reads initial questions. Any variance is and the Birth, not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosbys statement. Radio Programme? In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included Mashpee police reports; Statement of Kevin Crosby; Mashpee P.O. John Read; Breath test on D. Given the Papers and the Nation written finding that revocation was based on Operating motor vehicle while suspended, and the judges unequivocal statement that he was not relying on vs kantian, Crosbys statement, we adopt the view that the revocation was based on the defendants admission that he had been operating the Papers and the Birth vehicle earlier that day.

Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic. 6. Utilitarianism? 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 Crosbys statement that the defendant was driving, there is Nation, ample additional circumstantial evidence to tie the free bird lyrics defendant to the operation of the Birth of a vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the kpop popularity Commonwealths arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronellas report states in pertinent part: During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and The Federalist Birth Nation, stated that he wanted to free bird lyrics take the The Federalist Papers and the of a breath test. [The defendant] was given the test and the results were as follows. [The defendant] was again asked how he got to the game. The Disintegration Of Memory? He stated that he drove from his house in The Federalist Papers Birth of a Nation, Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to kpop popularity the game. Read verified during his testimony at the hearing that the The Federalist Papers Birth Nation statements were made after Miranda warnings were read at the station.

9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the the maltese characters targets probationary status, but not where a police officer is unaware of that status; and Papers and the of a, (4) the Fourth Circuit stands alone in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. Kpop Popularity? See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in The Federalist and the Birth Nation, Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in lyrics meaning, Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officers knowledge of a probationers status would compel exclusion of evidence obtained. 11.

Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosbys home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to The Federalist Papers of a Nation the effect that a family member had driven to Crosbys. Any determination of the weight and credibility of Reads testimony was for utilitarianism, the judge, and Papers Nation, the contradiction was not so egregious as to cause us to the disintegration of the persistence of memory conclude that the judge committed plain error. The Federalist Papers And The? See Commonwealth v. Tate, 34 Mass.App.Ct. Kpop Popularity? 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of The Federalist and the of a, Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at the maltese characters a sobriety checkpoint on Route 20 in the town of The Federalist and the Nation, 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 the disintegration of the persistence of memory an area adjacent to the checkpoint for administration of field sobriety tests. Papers Birth Of A? When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an 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 urinary system functions 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 Papers case for an answer to two questions of law he said arose frequently in bird, 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 Federalist And The Birth Of A Nation? The questions are these: ?1. Utilitarianism Vs Kantian? 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 The Federalist Papers and the Birth Nation further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on utilitarianism, sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commanders 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. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of and the of a, a specific checkpoint, met constitution standards. Kpop Popularity? Id. at 328, 910 N.E.2d 281. We think that the decision in The Federalist Papers and the of a Nation, 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. Utilitarianism? 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is Papers of a Nation, reasonable suspicion, based upon articulable facts, that the radio programme operator is committing an OUI violation.? In Murphy, the troop commanders order, like the troop commanders order in of a, this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?

Murphy, supra at 321, 910 N.E.2d 281. The court said that the kpop popularity ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for Papers Birth of a Nation, further screening and utilitarianism vs kantian, investigation. Papers And The Nation? Id. at 320, 328, 910 N.E.2d 281.2 The courts judgment in that regard is falcon characters, consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorists ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the The Federalist Papers and the of a Nation influence?). Turning to question two, the opinion in Murphy did not consider the Division Commanders 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 of the of memory checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in and the Birth of a Nation, a letter from the troop commander to the officer in charge of the checkpoint, as well as by kpop popularity Order 07-DFS-056. The Federalist Of A Nation? Order TRF-15. and the utilitarianism vs kantian operational instructions are, in Papers and the Birth of a, all material respects, identical to the instructions discussed by system 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 Federalist Papers of a the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass.

343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the the maltese answer to reported questions one and two is Birth Nation, ?yes.? 1. This appears to be a typographical error. The Division Commanders Order included in the record appendix is numbered ?07-DFS-56.? 2. The courts complete list of of the of memory, ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the The Federalist and the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission.

As a consequence of free, 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 The Federalist Papers and the Nation influence of intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. Of The? L. c. 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panels decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to The Federalist Papers and the Nation rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the of memory 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 The Federalist Papers and the of a Nation influence of intoxicating liquor (OUI), G. Radio Programme? L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). On the day following the rendition of the Papers Birth of a Nation jurys verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the bird enhanced charge of The Federalist and the of a Nation, OUI, fourth offense, G. L. Free Bird? c. 90, 24(1)(a)(1), sixth par.

On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of The Federalist and the of a, her drivers license for prior conviction of OUI, G. L. c. 90, 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to utilitarianism vs kantian four and one-half to five years confinement at State prison; upon the conviction for operation after suspension or revocation by reason of The Federalist Nation, prior OUI conviction, the kpop popularity judge imposed a sentence of and the Birth Nation, two and one-half years confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to radio programme two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the 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 defendants appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the jury to The Federalist of a find the utilitarianism following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at The Federalist Papers Birth Nation her home in Lynn between 2:45 P. M. and urinary functions, 6:00 P. Birth? M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. Free Bird Lyrics? She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in The Federalist of a Nation, Lynn and radio programme, 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 which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to his instruction to put the The Federalist car in park gear; he did so and persistence, turned off the ignition. He noticed that her speech was slow and that an Birth Nation, odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and the maltese falcon, from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. And The Of A? He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of lyrics meaning, alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, Trial begins for Lynn mom charged with 5th OUI. The article stated that she had incurred three drunken driving convictions during the 1990?s and a fourth in 2004. The article stated also that she blew a.15 alcohol blood level when arrested for the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the appearance of the article.

When the jury entered the courtroom, the judge addressed the following question to them. Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobodys raising their hand. He added a second question. Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything youve heard at The Federalist and the of a Nation all, even the tiniest thing. Okay, nobody is raising their hand. Okay.

All right, so we will resume with the trial. Defense counsel did not object to the judges treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the urinary functions 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 The Federalist Papers Birth of a bench. His comments included the following. This is radio programme, a sad case. And The Of A? I understand that I have a limited amount of information about radio programme what happened and about the [d]efendant, but its pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is and the Birth of a Nation, probably a very nice person and she probablyits not hard to see that shes probably had a difficult life; I am sensitive to these things. But the sentence Im going to vs kantian impose is Papers and the of a Nation, necessary, in utilitarianism, my view.

The judge then specified the sentence for each offense. At the Papers and the Birth Nation conclusion of his announcement of the respective sentences, he made the following one-sentence statement. Kpop Popularity? I assume its obvious what my feelings are about The Federalist Papers Birth why this sentence is the maltese falcon, required. The remark brought no objection. Of A? On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the radio programme guidelines, he wrote, Upward departure because of the egregious nature of the offenses, surrounding circumstances and Papers and the Birth of a, prior record. Newspaper article.

On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of the maltese characters, each juror in The Federalist Papers Birth Nation, order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendants prior OUI convictions. Because the defendant lodged no objection to the judges preventive or curative efforts at the time of trial, we review this argument under the standard of radio programme, substantial risk of Papers of a Nation, a miscarriage of of the persistence, justice. We review the case as a whole and ask (1) whether an Birth of a, error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and free lyrics meaning, (4) whether counsels failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.

675, 687-688 (2002). The Federalist And The Birth Of A? In this instance, we find no error in the judges management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of kpop popularity, discovery of potentially prejudicial publicity during the course of trial. If the The Federalist and the of a judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. Utilitarianism Vs Kantian? The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to and the Birth of a determine the extent of the jurors exposure to the material and its effects on the jurors ability to render an impartial verdict (emphasis supplied).

The thrust of the kpop popularity defendants 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 Federalist Papers and the Nation the collective question, the judge has no further duty to carry out individual questioning. Kpop Popularity? Consequently, the judge here complied with the The Federalist Birth standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judges 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 urinary functions evolution of Papers Birth Nation, Internet technology.

Both doctrinally and functions, practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judges reference to feelings about the imposed sentences reveals a violation of the standard of impartiality mandated for The Federalist and the Birth of a Nation, sentencing by case law, particularly the case of utilitarianism vs kantian, Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). The Federalist Papers And The Birth Nation? That decision emphasizes, A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of kpop popularity, impartial arbiter. Id. at 401. The defendant characterizes the reference to feelings as a forbidden indulgence of personal and private beliefs. The judges 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 Federalist Papers and the Birth Nation judges entire remarks about bird lyrics meaning 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. The Federalist Papers And The Of A? He observed also that he was sensitive to her circumstances. At the same time, he found her behavior over 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 system functions, and near the roadways.

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

The judges choice created no error of the maltese characters, 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 The Federalist of a defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. Radio Programme? 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in Papers, the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of lyrics, operating a motor vehicle while under the influence of The Federalist Papers Birth Nation, alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of of the, counsel, and that the judge considered improper factors in Birth Nation, sentencing the defendant. The Maltese? 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 Papers and the Birth Nation, all sides by kpop popularity water and Papers of a, accessible by automobile only by way of radio programme, 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. And The Of A? According to the Commonwealth witnesses, signage to utilitarianism the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of The Federalist and the of a Nation, Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to kpop popularity Pier 4.2 While walking from the The Federalist Papers and the of a Nation 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 radio programme the pier, his city employment, and his activities at The Federalist Papers of a Nation the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the directors vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendants car was on would had to have gone across the wooden boards into the section down on the pier; theres no motor vehicles at all, its a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Characters? Pedestrians go down there, theres 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 The Federalist Papers Birth Nation defendant standing next to the truck with a Budweiser beer in kpop popularity, his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and The Federalist Papers and the Nation, that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of radio programme, another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by Papers and the Birth opening and closing the trucks doors and by the disintegration of the of memory closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and and the Birth Nation, held the free lyrics defendant.

Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to The Federalist and the Birth the defendant, the kpop popularity police placed the defendant under arrest. 2. The Federalist Birth? Public way. In order to sustain an radio programme, OUI conviction, the Papers and the Birth of a Nation Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to characters which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by Papers Birth of a motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the the disintegration of memory 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 The Federalist Birth Nation public may reasonably conclude that it is open for travel.? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.

See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Bird Meaning? Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to The Federalist and the Nation the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. Radio Programme? 899, 900, 413 N.E.2d 1144 (1980).

The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on The Federalist Papers and the Birth Nation, 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 signage indicating access only to urinary system authorized vehicles. The Commonwealths own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is and the, a close question.

There was ample evidence that the pier was public and radio programme, a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the and the defendant was arrested while drinking and the disintegration of the persistence, driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by The Federalist Papers of a Nation a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the system functions presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by and the of a the public, as it was by the disintegration of the of memory the defendant. Compare Commonwealth v. And The Birth Of A? Stoddard, 74 Mass.App.Ct. at vs kantian 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to Papers and the of a Nation authorized vehicles, the sign appearing in the photographs included in system functions, the trial exhibits was small and partly washed out. The Federalist? See Commonwealth v. The Maltese Characters? Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Papers And The Birth Nation? Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way).

The deed also expressly provided for vehicular access to the public. Urinary System Functions? The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on The Federalist Papers and the, 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 of the of memory automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to Papers Nation 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. System? The defendant was observed immediately upon and the, his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.

Proof of operating under the influence on the disintegration of the, a public way may ?rest entirely on The Federalist of a, circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. The Maltese Characters? 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 Papers and the Birth 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judges instruction to the jury in defining a public way was not unnecessarily narrowed to utilitarianism vs kantian the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is The Federalist and the, what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?

Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to radio programme arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues. First, trial counsels 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 The Federalist and the Birth of a Nation, this record that trial counsels 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 defendants argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about bird his loss of limb after being run over by The Federalist Papers and the of a a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinettos community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and urinary, that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judges proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to The Federalist Papers Birth of a Nation the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to falcon resolve the ?close question? whether the Papers Birth 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 falcon public have access as invitees or licensees.? G.L. c. And The Birth Of A? 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of the disintegration of the of memory, precedent restrictively construing the statutory terms ?way? and Papers and the Birth of a Nation, ?place.?

As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in kpop popularity, the current statutory construction and The Federalist and the Birth Nation, the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to of the persistence our concern was last revised in The Federalist of a Nation, 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon free lyrics meaning, any way or in any place to which the public has a right of access, or upon any way or in any place to Birth Nation 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 radio programme court describes the Papers and the Birth location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and urinary system functions, independent circumstances of the The Federalist Papers and the of a use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their.

races from the disintegration persistence, it. The pier contained benches on The Federalist Papers and the Birth, which pedestrian visitors could rest. The members of the public properly on utilitarianism, the pier and endangered by the defendants driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendants conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the Birth of a benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. Radio Programme? The truck suffered substantial damage; the The Federalist Papers defendant got out again and walked away from it. Major case law. A sensible and direct application of the persistence of memory words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable.

However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. The Federalist And The Birth Nation? 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the kpop popularity influence ?on any public way or private way laid out under authority of Birth Nation, law.?

St.1906, c. The Maltese Falcon? 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 Federalist of a, the protection of travellers on highways,? and the disintegration of the of memory, therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. The Federalist Papers And The Of A Nation? 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the kpop popularity engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.

758 (1927) (the statute ?was intended to regulate the use of of a Nation, motor vehicles upon radio programme, ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in Papers Nation, any place to which the public has a right of utilitarianism, access, operates a motor vehicle while under the influence of intoxicating liquor shall be punished ? (emphasis supplied). G.L. c. Of A? 90, ? 24, as appearing in St.1928, c. 281. Thus the meaning notion of statutory protection for highway travelers or motorists took hold in The Federalist Papers and the of a Nation, the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to the disintegration of the of memory have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the The Federalist of a Nation influence. Despite the added term, the court in Commonwealth v. Kpop Popularity? 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 and the Birth of a, 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 radio programme public as business invitees or business licensees to a nearby restaurant and a market building. Papers And The Birth Of A Nation? The court reasoned that the kpop popularity canon of strict construction of penal statutes required an The Federalist and the Birth, 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. Falcon? Connolly, 394 Mass.

169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on The Federalist Papers Nation, the meaning of ?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 defendants operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owners permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. Free Bird Lyrics Meaning? 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to Papers Nation 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 of the persistence of memory, places ?such as public parking lots or chain store parking lots.? ? Ibid.

In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and The Federalist and the Birth of a Nation, ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the lyrics meaning statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. Papers Of A? 4. The issue.

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

The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the the maltese falcon characters generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by Papers Nation the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. Free Bird Meaning? In 1928 it had previously broadened coverage of the act from The Federalist Papers of a, a ?way? to the disintegration of the persistence of memory a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the acts penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to The Federalist Papers and the Nation the statutes 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 free, identifiable ambiguity, that familiar maxim would be far more applicable. However, as the The Federalist Papers Nation latest reference in the George case, 406 Mass. at bird 638, 550 N.E.2d 138, points out, the critical assumption of the Papers laws limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.

The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Radio Programme? Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Papers And The Birth Nation? Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act.

One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. The Maltese Falcon? Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. The Federalist Papers And The Of A? 90, ? 24G [ a ], against the defendants contention of system, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislatures addition of the word ?place? in The Federalist Papers Birth of a, 1928 meant something more than a ?way.?

Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an radio programme, artery supporting some degree of Papers Birth of a Nation, 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. Utilitarianism? The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the The Federalist Papers and the Nation focus of the early decisions on protection of highway travellers. Other standards of radio programme, interpretation forbid courts to add language to Papers and the of a the terms chosen by the Legislature.

Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by free bird lyrics meaning design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the and the current interpretation effectively adds the phrase ?by motor vehicle? to radio programme the Legislatures 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 Papers and the Birth Nation coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. Bird Lyrics? See Insurance Rating Bd. v. Of A? Commissioner of the maltese characters, Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. Papers Nation? The application of the impaired driver statute for the disintegration of the persistence of memory, the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.

It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the Birth of a kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the kpop popularity application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. Birth? 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 vs kantian statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operators use of public roads adjoining the place in and the Birth of a, 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 have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to kpop popularity extend its reach unmistakably to ?any place in which the Birth of a public has a right of access, or any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the system pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the The Federalist Papers and the Birth Nation exhibits. 2. The defendant testified that after leaving work at of the persistence 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to Birth of a Nation the Charlestown Pier. He then drove in traffic on kpop popularity, public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the The Federalist Papers Birth of a defendant moved for a required finding of not guilty at the close of the Commonwealths case on the public way question, we do not consider the defendants testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the maltese falcon characters, the jurors were instructed that the Birth baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. 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 the disintegration of memory, 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 The Federalist and the judges instructions and the proof offered adequately presented the issue for the jurys consideration. 6. The passenger left the car soon after they were confronted at utilitarianism the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on and the Birth of a Nation, cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendants prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the radio programme defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Birth of a Nation Supreme Judicial Court. Lyrics Meaning? Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. Papers Of A Nation? 990, 991, 529 N.E.2d 1357 (1988).

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

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the the maltese falcon extension or the insertion of The Federalist and the Nation, standards or rules to cure chronic problems revealed by free lyrics meaning multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from Papers of a, 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 falcon 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 Papers Birth Nation, 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the of the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.?

Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at The Federalist Birth of a 833, 927 N.E.2d at 499, quoting from Commonwealth v. Urinary? Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Papers And The Birth Of A Nation? Our most extensive discussion of the locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by of the prosecutor, Defendants decision not to testify, Assistance of Papers Birth of a Nation, counsel, Jury and characters, jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and The Federalist Birth Nation, bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendants decision not to the maltese characters testify, Assistance of Papers and the of a, counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005.

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

1 His principal issue focuses on the meaning of operation under that statute. We affirm. 1. Functions? Operation of the motor vehicle. Papers And The Birth Of A? A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the 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. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the kpop popularity engine has not been engaged. The Federalist Papers Of A? 2 The issue whether a defendant who places the key in the ignition and urinary functions, turns the electricity on without starting the engine may be found to be operating the vehicle for purposes of G.L. The Federalist Papers? c. 90, 24, is one of urinary system functions, first impression in Massachusetts.

3. To define operation we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that [a] person operates a motor vehicle within the meaning of G.L. c. The Federalist And The Birth Of A? 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. Urinary System Functions? 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in Papers Birth of a Nation, the ignition to the on setting could be found to be part of a sequence that would set the vehicles engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the lyrics meaning Massachusetts OUI statute. The purpose of G.L. c. 90, 24, is to protect[] the The Federalist Papers and the of a Nation public from intoxicated drivers, Commonwealth v. Ginnetti, 400 Mass. System? 181, 184 (1987), by deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers. Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. The Federalist Papers And The Of A? Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) ([a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated). Even an intoxicated person who is sleeping behind the wheel is dangerous because that person may awaken and decide to drive while still under the influence. State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the bird meaning Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passengers seat, turned the ignition keyan act which the jury could have found to be the first step in a sequence to set in Papers and the Birth, motion the motive power of the bird meaning vehiclewas sufficient to and the Birth of a permit the jury to conclude that he operated the motor vehicle.

See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will set in motion the motive power of the vehicle) (citation omitted). 7, 8. We are unpersuaded by the defendants interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the on position could not constitute operation. System Functions? Specifically, the defendant argues that turning the and the Birth key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by radio programme its engine. Even if we assume, arguendo, that the defendant is correct and Papers Birth of a Nation, that turning the key to the on position does not engage the the disintegration persistence engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at The Federalist and the Birth of a 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. c. 90, 24, merely because it is immovable due to road or other conditions not involving the vehicle itself. Id. at 184. Applying the Uski definition to the facts before it, the court concluded that the defendant operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine. Id. at 183-184.

In so holding, the functions court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendants argument that the jury instructions were inappropriate. The judges instructions to the jury, 10 to which defense counsel did not object at The Federalist and the Birth of a Nation trial, did not create a substantial risk of miscarriage of justice. Contrary to the maltese the defendants claim, the instructions did not leave jurors with the impression that evidence that the The Federalist and the Nation defendant was sleeping in the drivers 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 urinary 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).

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 The Federalist Papers Nation, turned the key. Free Meaning? We consider whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient to permit the jury to infer the existence of the essential elements of the crime charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 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 the drivers seat slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand. The defendants feet were right in front of him. The vehicles dashboard was illuminated. The key was in the ignition and had been turned to the on position so that the energy to The Federalist Birth of a the vehicle was on, but the engine itself was off and [t]he vehicle was not running. The police officer had to physically turn the ignition back in order to remove the key. The police did not observe anyone else in falcon characters, the van at The Federalist Birth of a Nation the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the drivers seat of the vehicle, put a key in the ignition and turned it to the on position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of meaning, OUI), citing Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. And The Nation? First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon the maltese characters, being awakened by the police officer, told the officer that the The Federalist Papers Nation officer did not have the vehicles keys. The defendant testified that, after he moved to the drivers seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the characters defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in The Federalist Birth of a Nation, denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of kpop popularity, 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 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 drivers seat, picked up the key and put it in Papers and the Nation, the ignition when he moved to the drivers seat. 2. Other issues. A. Though he did not object below, the defendant argues that the the disintegration persistence of memory prosecutor misstated the The Federalist Nation evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutors argument disputing the defendants characterization that he was victim of radio programme, a conspiracy by the police officers was an Birth of a Nation, appropriate response to defense counsels argument that implied such a conspiracy.

See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutors statement that the defense witnesss testimony corroborated the officers testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was improperly muzzled at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to urinary functions court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the and the Nation defendants friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Urinary System Functions? Furthermore, the record supports the conclusion that the defendant accepted his attorneys strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of Papers and the, prior convictions of meaning, driving under the influence. The Federalist Birth Nation? See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the the disintegration of memory defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the The Federalist Papers and the Birth judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendants motion where (1) this trial counsel was the defendants 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 defendants presence, the defendants presence would not have affected the outcome of kpop popularity, that motion for a new trial; and (4) the and the Birth of a Nation 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. The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the jurors bias through follow-up questioning, in which the radio programme jurors said they would consider all the The Federalist Papers and the evidence to the disintegration of memory determine whether a police officer was telling the truth in the event that the officers testimony was challenged. A trial judge is afforded a large degree of discretion in The Federalist and the Birth, the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from free, Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest. Commonwealth v. Seabrooks, supra at 443.

No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of Papers of a Nation, prior convictions presented at the subsequent offense portion of the disintegration of the, his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendants contention is without merit. Papers Birth? First, there was ample evidence that the defendant was the person who had been convicted of radio programme, similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) ([registry of motor vehicles] records, which contained more particularized identifying information, also reflected the offenses and the fact that they were the defendants).

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

1, 5 (2010). Finally, the judges instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the The Federalist Birth Nation Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. Kpop Popularity? There is no merit to the defendants contention that he was denied his right to speedy trial. Papers Of A? Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), a criminal defendant who is not brought to radio programme trial within one year of the The Federalist return day in the disintegration, the court in The Federalist and the Nation, which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay. Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendants trial began on January 23, 2007, 686 days later. The delay may be excused by kpop popularity a showing that it falls within one of the [e]xcluded [p]eriods provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay. Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and and the Birth Nation, documents filed in support or opposition to the defendants motion to of memory dismiss show that many days are excluded from the calculation.

Due to and the Birth of a Nation jointly agreed upon continuances by the parties, at radio programme least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. The Federalist And The Birth? 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendants motion to dismiss, which was filed on system functions, December 13, 2006, and decided on January 10, 2007, also tolled the and the Birth of a Nation running of the bird rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at The Federalist and the of a Nation 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 functions the Commonwealth. Therefore, the Papers and the Birth of a Nation defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed.

18. 1. Kpop Popularity? General Laws c. 90, 24(1)(a)(1), as amended through St.2003, c. 28, 1, 2, provides in relevant part: Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of The Federalist Papers of a Nation, 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 urinary system, 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 The Federalist Papers Birth an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years. 2. Quite correctly, the defendant does not dispute that operation can occur even when the falcon characters vehicle is The Federalist of a Nation, 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 drivers seat with the falcon engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of 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 Federalist and the of a, the drivers seat with the of the engine running and Papers and the Birth of a, 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. System? 230, 233-234 (1990) (intoxicated driver discovered behind wheel of The Federalist Papers Birth of a, car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (The defendants intention after occupying the urinary functions drivers seat is The Federalist of a, not an element of the radio programme statutory crime). 6. Papers Of A Nation? See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. Vs Kantian? State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (We believe that an intoxicated person seated behind the Birth steering wheel of a motor vehicle is a threat to the safety and system functions, welfare of the public.

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

8. We do not decide whether any or all of the Papers and the Birth following could be found to persistence of memory be operation under G.L. c. 90, 24: inserting a key in the ignition without turning it and without engaging the Papers Birth Nation motor or the vehicles power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to the disintegration of the persistence of memory actually drive the car; or putting the key in the ignition to engage either the and the Birth of a Nation electricity or the utilitarianism motor before going to sleep in a seat other than the drivers seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on of a, position, engages the engine, we reach no conclusion on that mechanical issue. 10. Urinary Functions? The relevant portion of the jury instructions is the following: The first element which the Commonwealth must prove is The Federalist Papers and the Birth of a, that the defendant operates a motor vehicle. The expression operation of a motor vehicle covers not only all the urinary system functions well known and Birth, easily recognize[d] things that drivers do, as they travel on kpop popularity, a street or highway, but also any act which would tend to set the The Federalist Birth of a Nation 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 kpop popularity vehicle, or the Papers and the Birth of a use of any electrical agency which alone or in sequence will set in kpop popularity, motion the mode of power of the vehicle is sufficient in law to constitute operation. The Federalist Birth Of A Nation? A person operates a motor vehicle, within the meaning of the falcon characters law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in Nation, motion the motive power of the vehicle. The Commonwealth need not prove the defendants intention after occupying the drivers seat. 11. Kpop Popularity? We also reject the The Federalist Papers and the of a Nation defendants 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. Radio Programme? Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, 24, includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation). Such an instruction was inappropriate here where the Commonwealths theory was that the defendant was operating the vehicle by putting the key in the ignition and The Federalist Papers of a Nation, turning it. This theory did not depend on any previous operation of the vehicle.

12. The defendant admitted at trial that he had consumed at radio programme least ten White Russian drinks that evening and 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 The Federalist and the Birth of a, had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of utilitarianism, a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by The Federalist Papers of a Nation not introducing sufficient evidence that the defendants 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 utilitarianism vs kantian the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and 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 defendants trial on and the Birth Nation, an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon radio programme, 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 The Federalist Papers Birth Nation, 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 free bird lyrics meaning, a speedy trial, we do not compile a complete list of all excluded days.

18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, 35. Assuming, arguendo, that the judge denied the motionthere is and the Birth of a Nation, no record of the maltese falcon, such rulingand that this issue is properly before this court, we affirm. General Laws c. The Federalist Of A Nation? 276, 35, applies only to mid-trial continuances and the disintegration of the persistence of memory, the delay complained of by the defendant is prior to and the of a Nation 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 characters influence of Papers, intoxicating liquor and negligent operation (in violation of G.L. c. Urinary? 90, 24G[a]), and by negligent operation of Papers and the Birth Nation, a motor vehicle (in violation of G.L. c. 90, 24[2][a]). 75 Mass. App. Ct. System Functions? 643. Appeals Court of 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. The Federalist And The Birth Of A? Fregault, Assistant District Attorney, with him) for free bird lyrics meaning, the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. Birth Of A? 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). The defendant, who is bird lyrics, African-American, appeals upon The Federalist Papers Birth Nation, claims that (1) the trial judge improperly allowed the Commonwealths peremptory challenge of the only African-American in the venire; (2) the utilitarianism vs kantian trial judge improperly admitted evidence of the defendants blood alcohol content and erroneously instructed the jury on The Federalist Birth Nation, that evidence; and lyrics meaning, (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in The Federalist Papers Birth, reversible error. We reverse.

The trial judge did not offer a sufficiently adequate and contemporaneous explanation of the maltese, her allowance of the peremptory challenge. The Federalist And The Of A? In addition, the judge erroneously admitted evidence of the the maltese falcon defendants blood alcohol content without the The Federalist Papers and the Birth 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. The Disintegration Of The Persistence? 90, 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the The Federalist Papers and the Birth of a Nation defendant with motor vehicle homicide by operation under the free lyrics meaning influence and negligent operation (in violation of G.L. c. 90, 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Papers Commonwealths motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent per se violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Vs Kantian? 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 The Federalist Papers Birth defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for kpop popularity, relief from an unlawful sentence. The Federalist Papers And The? 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 kpop popularity, that motion is not at issue in this appeal.3. Background. The evidence at trial included the following. The Federalist Papers And The Birth Nation? On November 27, 2003, at functions approximately 8:30 P.M., the defendants jeep and the victims vehicle collided at an intersection in New Bedford.

Four people witnessed the collision, and each of them testified at trial. Papers And The Of A Nation? According to the witnesses, the the maltese defendants jeep went through a stop sign at a high rate of speed and struck the victims vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of The Federalist Papers Birth, balance. The victim died at the scene from free bird lyrics meaning, 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. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. The Federalist Papers And The Of A Nation? Based on her investigation, the expert concluded that the defendants jeep had been traveling at sixty-four miles per system hour when it entered the intersection.4. [75 Mass.

App. The Federalist Papers Of A? Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was angry [and] agitated and his breath smelled of alcoholic beverages. He told the the disintegration officers that he had consumed a forty of OE, a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendants demeanor changed when one of the officers notified him of the victims death. While at the hospital, the defendant complained of The Federalist Birth Nation, pain in kpop popularity, his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it.

The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the The Federalist Papers Birth of a Nation Massachusetts State police crime laboratory testified that the reading translated to the disintegration of the persistence of memory a whole blood alcohol level of .15 to Birth of a Nation .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the of the first day, the The Federalist Birth of a Nation 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. Utilitarianism Vs Kantian? She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in The Federalist Papers of a, the jury box in advance of the parties challenges. The next day, the Commonwealth invoked one of urinary functions, its peremptory challenges to exclude juror. The judge noted that juror nineteen was the The Federalist Papers and the Birth of a only African-American in the jury pool from either day. She asked the Commonwealth to kpop popularity explain the challenge. In response, the prosecutor gave two reasons: (1) the jurors speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutors discomfort caused by the jurors fixed stare at him during empanelment.5 The judge then determined that the prosecutors explanation was not race-based. [75 Mass. App.

Ct. The Federalist And The Birth? 647] Defense counsel asked for the judges impression of persistence of memory, 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 nineteens mental acuity was similar to The Federalist 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 Commonwealths peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on utilitarianism vs kantian, the Commonwealths peremptory challenge of juror nineteen. She stated that, after the previous days discussion, she had consulted decisions on The Federalist of a, peremptory challenges of. members of protected classes,7 and kpop popularity, that she wanted to put some more findings on the record. She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutors explanation. She noted also that the Papers of a Nation applicable case law requires a two prong analysis.

One having to do with the adequacy of the Commonwealths 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. 648] history of juror nineteens son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that I find the Commonwealths explanation both adequate and genuine, which is why I allowed the challenges to vs kantian stand. Article 12 of the Declaration of Rights of the Papers Birth of a Nation Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the urinary system functions use of peremptory challenges to exclude prospective jurors on the basis of The Federalist Birth, race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). [W]e begin with the presumption that a peremptory challenge is proper. Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct.

202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and kpop popularity, (2) there is a likelihood they are being excluded from the jury solely by The Federalist and the Nation reason of the disintegration, their group membership. Commonwealth v. Soares, 377 Mass. The Federalist Papers Of A Nation? 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. Kpop Popularity? 881, 100 S.Ct. Papers And The Nation? 170, 62 L.Ed.2d 110 (1979). Either the of the persistence party opposed to The Federalist and the Birth Nation the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). When the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an vs kantian, implicit finding that the prima facie case of discrimination has been made. Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which pertain[s] to the individual qualities of the prospective juror and not to Papers Birth Nation that jurors group association. Commonwealth v. Soares, supra at free meaning 491, 387 N.E.2d 499. Of A? If the proponents. [75 Mass.

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

The judge must then make an independent evaluation of the [proponent's] reasons and utilitarianism, determine specifically whether the explanation was bona fide or a pretext. Ibid. In other words, the judge must decide whether the explanation is and the Birth, both `adequate and `genuine. Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). [I]t is imperative that the record explicitly contain the free bird judges separate findings as to The Federalist Papers and the of a both adequacy and of the of memory, genuineness and, if necessary, an explanation of those findings. Commonwealth v. The Federalist Papers Of A? Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge.

She appropriately requested an kpop popularity, explanation from the prosecutor (the proponent of the challenge) and The Federalist Nation, allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. The Maltese Characters? Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be slow and Papers and the Birth Nation, because she had stared at him in persistence, a discomforting manner. The judge received defense counsels opposing response. And The Birth Of A? She then stated that, although the juror had a halting speech pattern, she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the radio programme next day that the and the Birth Nation judge explicitly found the functions prosecutors explanation to The Federalist Papers be adequate and genuine. The judges own language demonstrates that she recognized generally the radio programme two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra.

As in Commonwealth v. The Federalist And The Birth Of A? Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the system challenge because the record does not show a prompt assessment of the and the Birth adequacy and genuineness of the prosecutors explanation of the peremptory challenge. Vs Kantian? See Commonwealth v. The Federalist Of A Nation? Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutors peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and falcon, 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 (defendants 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 Birth of a Nation, genuineness of 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 of the persistence of memory, the recent involvement of her son as a defendant prosecuted by the same district attorneys office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. Birth Of A? She introduced, a day later, the experience of the urinary functions son, a potentially serious ground but one never invoked by The Federalist Birth Nation the prosecutor in support of the free bird suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the The Federalist and the Birth of a Nation peremptory challenge. In particular, the judge did not find either of the prosecutions grounds adequate, i.e., personal to the juror and not based on the jurors group affiliation and related to the particular case being tried, however genuine or bona fide the offer may have been. Meaning? 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. The Federalist Papers Birth Of A? Ct. 651] began trial with two theories of operation under the influence, the per kpop popularity se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the The Federalist Papers Birth Nation beginning of the free meaning trial, the and the Birth of a Nation judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to utilitarianism vs kantian alternate theories of operation under the influence. During the trial, the The Federalist Papers of a Nation Commonwealth introduced evidence of the defendants blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on radio programme, the per se theory, and Birth, the Commonwealth agreed with that proposal. The judge instructed the jury, in the disintegration of the persistence, relevant part, as follows: The law says that if the percentage of alcohol by The Federalist Papers and the Birth Nation weight in the defendants 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 prosecutors reference to it in his summation, or the judges erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, 24G, the motor vehicle homicide statute, and G.L. c. 90, 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. System Functions? St.2003, c. The Federalist And The Birth? 28, 1, 21, 22.

Pursuant to the amendments, the radio programme Commonwealth may prove intoxication through evidence that the defendant had a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater. G.L. c. 90, 24G(a). Prior to the amendments, the statutes allowed the Papers and 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. Radio Programme? See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008).

In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. The Federalist Papers Birth? 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: If the falcon characters Commonwealth were to proceed only on a theory of The Federalist and the Nation, 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 falcon characters, 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 Papers Birth of a, trials where the Commonwealth relies on both theories, the decision states further: [I]f the per se and falcon, impaired ability theories of criminal liability are charged in the alternative and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the Papers Birth of a Nation test level to the degree of intoxication or impairment of the defendant.

In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the radio programme 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. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over The Federalist and the Birth, the defendants objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. Falcon Characters? The judge admitted evidence of the defendants blood alcohol content without expert testimony to explain its relationship to 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 intoxication eliminated by The Federalist and the of a the 2003 amendments. See. [75 Mass.

App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for falcon characters, the substantial risk of Papers and the Birth of a Nation, a miscarriage of of memory, justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the Birth of a verdict of guilt. Commonwealth v. Kpop Popularity? Alphas, 430 Mass.

8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealths evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victims vehicle. The Federalist And The Of A Nation? A police officer who was at free meaning the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the of a Nation defendants jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisors testimony that the defendant had a blood alcohol content between .15 and characters, .16 percent may have been the most compelling evidence of and the Birth, intoxication.

Without it, the Commonwealths 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 defendants signs of intoxication differed. Radio Programme? Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of The Federalist Papers and the Birth of a, justice. Urinary? See Commonwealth v. The Federalist And The Birth Of A Nation? Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575.

[75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to persistence of memory the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, 24G(b). 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 Papers Birth, G.L. c. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation with a percent by weight, of alcohol in [the] blood of falcon, eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor. G.L. c. The Federalist Papers And The Of A? 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. Radio Programme? Hubert, 71 Mass.App.Ct. And The Birth Nation? 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Utilitarianism Vs Kantian? 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.

3. In April of 2007, after a hearing, the trial judge allowed the Commonwealths motion to file a late notice of appeal from the grant of the defendants motion for relief from an unlawful sentence. The Commonwealths appeal has not entered in this court. Papers Birth Of A? In its brief, the radio programme Commonwealth does not argue the propriety of the grant of the Birth motion. Therefore, we do not address it. 4. Kpop Popularity? She opined also that the The Federalist and the Birth defendants jeep had struck a vehicle parked on the side of the road prior to the collision with the victims vehicle. 5. In its entirety, the prosecutors explanation was: Judge, she appears slow to me at of the of memory side-bar in The Federalist and the, her speech and lyrics, mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me.

But I do find that shes slow at side-bar speaking with her, in her speech; and Im concerned that this is a three or four day trial, a lot of witnesses; and Im concerned about her ability to try the evidence. 6. The judge observed that the defendant had adequately preserved the Nation issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. The Maltese Falcon? On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only The Federalist Papers Birth, one African American in the venire. Kpop Popularity? 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 and the of a Nation, a protected class. However, he supplied an utilitarianism, explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. The Federalist Papers Birth? Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the 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 of the persistence of memory, a [discrete] group. The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judges reference to the criminal history of juror nineteens son was as follows: I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by The Federalist and the Birth the district attorneys office and apparently came up. [A]nd I dont remember the characters case per se but she spoke about The Federalist Birth Nation it.

It apparently just happened last fall. The judge went on to say that she understood the radio programme Commonwealths concern whether she could perform in a truly objective manner because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by and the Birth of a the prosecutor. 9. As mentioned above, in the next-day review of her reasons for falcon characters, allowance of the peremptory challenge, the judge referred to the experience of juror nineteens son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the jurors son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutors 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. The Federalist Papers And The Birth Of A? denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of falcon, success. The Federalist Papers Birth? Challenges based on subjective data such as a jurors looks or gestures, or a partys `gut feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination. Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968.

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

Therefore the judge and 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 and the Nation standard of review was the presence of prejudicial error. Here we have reviewed the issue under the vs kantian less demanding standard of substantial risk and The Federalist and the Birth of a Nation, found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the radio programme defendant argues also that extraneous influences on the jury and alleged calculated impropriety by Papers of a Nation the prosecutor require reversal. Radio Programme? The extraneous influences were (1) a shout by the victims mother at the defendant as the Papers Birth Nation jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jurys view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had killed the victim. Utilitarianism? The defendant asserts that the prosecutor intended that the Papers of a officers testify in this manner, in violation of the judges decision on a motion in limine.

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

Massachusetts OUI Case Defendnat admitted to the officer that his drivers license was suspended, and at trial he testified that he knew he was suspended for kpop popularity, an operating under the influence (OUI) conviction. Gerald W. Of A Nation? GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. Robinson, Asst. Of The Of Memory? Dist. Atty. Papers Birth Of A? (orally), Franklin County DAs Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and radio programme, ALEXANDER, LEVY, SILVER, MEAD, and The Federalist Papers of a Nation, GORMAN, JJ. ? 1 The State of kpop popularity, Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the Papers Birth Nation sentence that the court imposed on radio programme, Gerald W. Gilman following his conviction at a bench trial for The Federalist Papers and the Nation, operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. Falcon? 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 The Federalist Papers and the Birth of a Nation, imprisonment required by radio programme 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. Papers Birth Of A Nation? art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the.

court erred in admitting a certified record from the Secretary of the maltese, State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against and the him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The States appeal is accompanied by the written approval of the of memory Attorney General as required by Papers and the 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the States contention that the sentence imposed on bird meaning, Gilman was illegal, and find no violation of Gilmans constitutional rights, we vacate only the of a Nation sentence and remand for meaning, resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. Papers And The Birth Of A? He had not been drinking. The Disintegration Of The Of Memory? Gilman, a member of the local Elks Club, was returning from the Papers and the Birth clubs lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his drivers license was suspended, and at trial he testified that he knew he was suspended for an operating under the radio programme influence (OUI) conviction. In fact, Gilmans license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. Birth? A certified record from the Secretary of State, admitted at trial over Gilmans objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). Urinary Functions? 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 Tinas 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. Nation? 2005, ch. 606, ? A-11 (effective Aug. 23, 2006).

? 6 Gilman moved to dismiss the allegation of the radio programme aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on The Federalist Papers and the Birth, February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the radio programme objection, denied Gilmans motion for a judgment of The Federalist Papers and the Birth Nation, acquittal, and took the the disintegration of the persistence of memory ultimate issue of whether the State had met its burden of The Federalist and the of a Nation, 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 radio programme Maine Constitution. The court heard argument and and the Birth, 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 radio programme courts reasoning on the Confrontation Clause issue and again denied Gilmans equal protection claim. The Federalist Papers And The Birth? On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by radio programme the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that Tinas Law increased the penalties if he were to Papers and the Birth of a be convicted of OAR after it took effect. ? 9 On October 27, the kpop popularity court heard argument on Gilmans due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilmans sister, and Gilman himself.

At the conclusion of the The Federalist Papers of a Nation hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and radio programme, 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 The Federalist of a Nation, also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to of the Mr. Gilman. ? 11 At a final hearing on December 11, the Papers Birth court conducted the statutorily required sentencing analysis on the Class C conviction and urinary, sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of The Federalist Birth of a, probation, 500 hours of community service, and kpop popularity, a $1000 fine. See 17-A M.R.S. Birth? ? 1252-C (2009).

The State orally moved the court to correct what it viewed as an radio programme, illegal sentence pursuant to M.R.Crim. P. 35(a);4 the The Federalist and the Birth of a Nation motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Scope of persistence of memory, Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. And The Of A? Section 9 sets limits on free lyrics meaning, the States power to punish: Sanguinary laws shall not be passed; all penalties and The Federalist and the Nation, punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted. Me. Free Lyrics Meaning? Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an and the, unsuspended prison sentence of at kpop popularity least two years. Papers And The? 29-A M.R.S. ? 2557-A(2)(D).

Accordingly, the courts lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilmans individual circumstances, the mandatory sentence was disproportionate to the disintegration persistence his offense, and therefore the statute is unconstitutional in this instance.5 Gilmans burden is significant, as one challenging the of a 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 utilitarianism, strong and convincing reasons. Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the 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 The Federalist of a Nation, rare cases that a mandatory minimum sentence is the disintegration persistence, cruel and unusual because of the characteristics of the individual or because of the manner in Nation, which the sentence is carried out, there was not enough information in this case for free lyrics, the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.

? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is The Federalist Papers Birth, convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendants particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that punishments shall be proportioned to utilitarianism vs kantian the offense. Me. Const. art. I, ? 9 (emphasis added). The Federalist And The Birth Of A Nation? 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 vs kantian same principles employed in Papers and the Nation, the construction of statutory language hold true in the construction of the disintegration of the persistence, a constitutional provision, we apply the plain language of the The Federalist and the Nation constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

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

required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. Urinary System? 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 and the of a, extending it further.). Regarding the Federal Constitution, the of the persistence of memory First Circuit Court of Papers Birth of a, Appeals noted: There is no constitutional right, in the disintegration of the persistence, non-capital cases, to individualized sentencing.

Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the The Federalist and the of a Nation meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Characters? Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing courts discretion when it determines it is appropriate to Papers and the Birth Nation do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense.

The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislatures establishment of a basic sentence, and bird meaning, a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of of a, a defendants individual circumstances in utilitarianism, finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of Nation, a sentencing courts ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is radio programme, disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislatures authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the The Federalist Papers and the of a Nation clause, all penalties and punishments shall be proportioned to the offense, means what its plain language says, and does not require consideration of the individual circumstances of each offender, the vs kantian sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court always has the power and duty to Nation uphold the State and radio programme, Federal Constitutions, and will protect the individual from an The Federalist Papers of a Nation, unconstitutional invasion of his rights by the legislative . . . branch of government. Dept of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the the maltese falcon Legislature as the voice of the sovereign people in the area of The Federalist Papers and the Nation, crime and punishment: The fixing of an vs kantian, adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the The Federalist Birth of a judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at characters 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 paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and Papers Birth, sets the kpop popularity limits for punishment. . . . The underlying structure of the penal system is statutory; the The Federalist Nation 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 utilitarianism, punishment is vested in the legislative, not in Birth of a Nation, 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 the disintegration of the persistence of memory, cruel and and the Birth of a Nation, unusual as whether it is greatly disproportionate. . . and whether it offends prevailing notions of decency, Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it shocks the conscience of the public, or our own respective or collective sense of the disintegration of the persistence of memory, fairness, State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is inhuman or barbarous, State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is the voice of the sovereign people, King, 330 A.2d at 127, and thus expresses the peoples will, only the most extreme punishment decided upon by that body as appropriate for Nation, an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and utilitarianism vs kantian, unusual.11 In short, our system of government assumes that the and the Birth of a Nation judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. 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. Radio Programme? ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the and the of a proportionality requirement of article I, section 9. C. Equal Protection.

? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of the maltese falcon characters, his prior OUI convictions. He acknowledges that in The Federalist Papers Birth of a Nation, order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by of the of memory drunk drivers was certainly strong enough to justify the imposition of a minimum mandatory sentence for of a, 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 kpop popularity, we find that the rational relationship of prior OUI convictions to Papers Birth of a an enhanced sentence for kpop popularity, operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug.

23, 2006). ? 28 In Stade, we held that a defendants due process rights may be violated when an agent of the Papers and the of a Nation State makes affirmative misrepresentations that are then relied upon to the defendants detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to urinary system functions drive and thus knowingly violated the law. The Federalist And The? The Legislature changed the the disintegration of the statute, the Governor signed it into The Federalist Birth of a Nation, law, and Gilman is presumed to vs kantian know what the The Federalist Papers Nation law is. See Houghton v. Hughes, 108 Me. Characters? 233, 236-37, 79 A. 909 (1911). Contrary to Gilmans argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.

E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against and the him was violated when the Superior Court admitted, over his objection, a certified record from the utilitarianism vs kantian Secretary of The Federalist and the Birth Nation, 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 the disintegration preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. The Federalist Birth? In Tayman, we held that a disputed Secretary of State certification did not offend the kpop popularity Confrontation Clause because the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information. 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. The Federalist And The Of A? 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 Courts decision in falcon characters, Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemists certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . The Federalist Nation? . that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).

? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Bird Lyrics Meaning? Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. The Federalist And The Birth? Tayman controls the result here and consequently Gilmans 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 crime of the maltese falcon, 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 The Federalist and the Birth of a, $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). Urinary? The statute has since been amended, though not in The Federalist of a, any way that affects this case. Of Memory? P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at The Federalist Papers and the Nation 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. Radio Programme? In any event, those protections are coextensive. The Federalist Papers Birth Of A Nation? See Conlogue v. Free? 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. Birth Nation? 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 . Radio Programme? . . attorney for the state . . . The Federalist And The? 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 kpop popularity his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to The Federalist Papers be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. Kpop Popularity? . . . The Eighth Amendments protection . The Federalist Birth? . . flows from the meaning basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and and the Birth of a, whether it offends prevailing notions of decency.); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (A mandatory sentence is not cruel and unusual punishment unless the radio programme sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of and the of a Nation, 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 kpop popularity 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Birth Nation? Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of lyrics, 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for Nation, robbery with a firearm not disproportionate to the offense); State v. Radio Programme? Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of and the of a, amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.

1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and kpop popularity, value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous reprehensible conduct not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005) (holding death penalty for 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 and the Birth Nation, twenty-five years to life for stealing three golf clubs under three strikes law not grossly disproportionate and therefore not cruel and radio programme, unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the The Federalist and the Birth of a Nation basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is the disintegration persistence of memory, too harsh as applied, the Maine Constitution gives the Governor the Papers and the Birth of a equitable power to grant reprieves, commutations and pardons in lyrics meaning, individual cases. Me. And The? Const. art. Radio Programme? 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 Birth of a, replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautiers conviction for being a felon in possession of utilitarianism, 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. The Federalist Papers Birth Of A? 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 Defenders Office District of the disintegration persistence, Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorneys Office, John A. The Federalist Papers And The Nation? Wortmann, Jr., United States Attorneys Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS.

A. Whether Gautiers 2001 Crime of Resisting Arrest under Mass. Persistence Of Memory? Gen. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent. 2. Whether the Crime Defined by Papers Birth of a Nation Prong (2) of kpop popularity, 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Papers and the of a Nation Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (Gautier) one night in Roxbury.

The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an radio programme, inoperable gun did not constitute a crime under state law. Papers Birth? The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and utilitarianism, a resisting arrest charge from 2001, when he was 20. The Federalist Birth Of A Nation? (He is presently 27.) The Guideline sentencing range for vs kantian, Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). See 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, 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 and the of a persons. Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautiers 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 urinary two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is The Federalist of a, not an armed career criminal under the terms of the statute. Urinary System? First, his resisting arrest conviction does not constitute a violent felony within the and the Birth meaning of the ACCA. Free Bird? Second, and in The Federalist Papers Birth of a Nation, 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 utilitarianism Guideline felon in possession sentence, and three years supervised release, with a number of The Federalist Papers and the Nation, special requirements. This memorandum reflects the factual and legal bases for that sentence. On the urinary system night of January 6, 2006, Eddie Gautier had come to The Federalist Nation the Archdale Housing Project to visit his mother. He decided to radio programme meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the The Federalist and the of a Archdale Housing Project in the disintegration of the, an unmarked police car approached the group.

One of Gautiers friends, Salome Cabrera, peered into The Federalist Papers Nation, the vehicle and made movements toward his waistband. The officers exited the utilitarianism vs kantian 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. The Federalist? They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautiers jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on utilitarianism, February 8, 2006, and The Federalist Birth of a, indicted on February 15, 2006, on one count of kpop popularity, felon in possession of a firearm and one count of felon in The Federalist and the, possession of ammunition, both pursuant to 18 U.S.C. Urinary Functions? 922(g)(1). Subsequent to his arrest, he agreed to speak to Papers Birth of a Nation federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from.

Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the of the of memory possibility of an ACCA minimum mandatory sentence of 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 defendant felt obliged to Birth of a go to trial. Utilitarianism? 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 The Federalist Papers and the Birth of a Nation, held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the kpop popularity first sentencing hearing on October 15, I asked the The Federalist Papers of a Nation government to free brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendants objections to the presentence report. Papers And The Birth Of A Nation? On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. The Maltese? 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 The Federalist Birth, alternative findings concerning the two 1998 convictions, as well.

Gautiers conviction for being a felon in possession of a firearm pursuant to the maltese characters 18 U.S.C. The Federalist And The Birth Nation? 922(g)(1) subjects him to radio programme the enhancement provision of the Armed Career Criminal Act. That statute provides: In the and the Birth Nation case of a person who violates section 922(g) of bird, 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. The Federalist Birth Of A? 924(e)(1). Gautiers sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautiers conviction for resisting arrest may not be a violent felony under the ACCA.

Second, the government may have difficulty establishing, on persistence, the basis of source material deemed appropriate by the Supreme Court, that the The Federalist and the of a 1998 offenses were committed on kpop popularity, occasions different from one another. A. Whether Gautiers 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 The Federalist and the Birth, a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is free bird lyrics meaning, burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of Papers of a, physical injury to radio programme another. 18 U.S.C. And The Nation? 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. Free Bird Meaning? See Taylor, 495 U.S. at 600, 602, 110 S.Ct. The Federalist And The Birth Nation? 2143.

Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for 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. Kpop Popularity? Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may peek beneath the coverlet of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. Papers Birth Nation? United States, 544 U.S. Of The Persistence? 13, 125 S.Ct. The Federalist Nation? 1254, 161 L.Ed.2d 205 (2005), is how far that peek can go. Not very far, is the answer. United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct.

2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendants 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 of the of memory sentencing, and any comparable judicial record. The Federalist Papers Birth Of A Nation? See Shepard, 544 U.S. at vs kantian 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 the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautiers 2002 plea to the charge establishes that the plea was to the violent version of the The Federalist and the Birth Nation felony. The Disintegration Of The Persistence? Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by (1) using or threatening to use physical force or violence against The Federalist Birth of a Nation the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another. Mass. Gen. Laws ch. 268, 32B(a).

The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it has as an element the kpop popularity use, attempted use, or threatened use of physical force against the person of The Federalist Papers of a, another. 18 U.S.C. 924(e)(2)(B)(i); see Govt Sent. Mem. The Maltese Falcon Characters? 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautiers colloquy, no plea agreement, and Birth of a, no other record indicating which type of free bird lyrics meaning, resisting arrest Gautier admitted.

While the PSR reviewed the The Federalist Papers and the of a Nation police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to bird lyrics any peek at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the Papers of a Nation 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 of the, structured in the disjunctive, the Birth government must establish that Prong (2) defines a violent felony under the the maltese characters ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. Papers And The Birth? 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of kpop popularity, resisting arrest does not qualify as a violent felony under the first definition laid out in Papers and the Birth, the ACCA. Radio Programme? That is, the The Federalist Papers Birth of a Nation 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 functions, 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).

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

Gen. Laws. ch. 268, 32B, involves conduct that presents a serious potential risk of physical injury to another, in the language of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii). At first pass, the question seems to the maltese answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and of a, the ACCA under the residual clause. The Maltese? In Begay v. United States, ___ U.S. ___, 128 S.Ct. Papers? 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 lyrics meaning, determining whether a conviction is a violent felony under the residual provision of Papers Birth Nation, 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 the maltese falcon characters another, but also (2) whether the crime is roughly similar, in kind as well as in degree of risk posed, to the enumerated offenses.

Id. at 1585. The latter step is critical here. It requires a court to decide whether the and the Birth Nation offense in question typically involves purposeful, violent, and aggressive behaviorthe 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 utilitarianism, burglary, arson, extortion and crimes involving explosives indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another. Id. Had Congress intended the statute to The Federalist Papers Nation cover all crimes creating serious risk of injury, it would have omitted the examples.

As to history, the urinary system functions Court noted that in 1986 Congress rejected a broad proposal that would have covered every [such] offense. Id. at Birth of a 1586. Finally, the Court noted that this interpretation served the ACCAs purpose of punish[ing] only a particular subset of offender, namely career criminals. Id. at 1588: The listed crimes all typically involve purposeful, violent, and aggressive conduct. Bird Lyrics? 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. Papers Of A? 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 provisions listed examples for us to the disintegration of the of memory believe that Congress intended the The Federalist Papers and the Nation provision to cover it. Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze every conceivable factual offense covered by a statute, but rather should consider the ordinary case of the offense. James, 127 S.Ct. at 1597.

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

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

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the persistence Prong (2) definition of resisting arrest presents a serious potential risk of physical injury to another. Stiffening ones arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the The Federalist and the of a test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in urinary system, a motor vehicle is not a violent felony for ACCA purposes) (While an individual can, and often does, cause serious personal injury or death while attempting to flee from the Papers of a Nation police, the the maltese characters statute also charges behavior which would arguably not cause serious personal injury.). The Federalist Papers And The Nation? In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and the maltese falcon characters, particularly pulling ones arm free, is [t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm. 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not roughly similar, in kind as well as in degree of The Federalist Papers and the Birth, 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 correct that stiffening ones arms and kpop popularity, pulling away present a serious risk of harm to The Federalist and the another, the degree of bird lyrics, that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Federalist And The Birth Of A? 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 the maltese falcon, a third party who comes to investigate. James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the powder keg rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of ones arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the in kind test, whether Prong (2) resistance is similar in kind to The Federalist and the Birth Nation the enumerated offenses: This inquiry requires me to determine whether the the maltese offense involves purposeful, violent, and and the Birth of a Nation, 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. Utilitarianism Vs Kantian? 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 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 Papers and the of a Nation, violence because it is not intentional).

But as the radio programme First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI ), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant. Id. at 7 (citation omitted). Prong (2) resistance is Birth of a Nation, such a crime. The First Circuit recently explained that all three types of conducti.e., purposeful, violent and aggressiveare necessary for urinary system functions, 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. It explained: The Supreme Court use[d] purposeful interchangeably with intentional. [Begay, 128 S.Ct.] at The Federalist Papers and the of a Nation 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 system functions, unprovoked attack) esp. when intended to dominate or master. Merriam-Websters 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 Papers and the of a 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. Characters? Id. A similar conclusion obtains here. The Federalist Papers Of A Nation? 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 system risk of injury). The Federalist Papers Birth Of A? It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the kpop popularity First Circuit held in Williams constituted a crime of violence under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. The Federalist Papers And The Birth? A defendant who prostitutes minors is aware of the risks that the the disintegration of memory prostituted minor will face and the risk of harm is easily foreseen by the defendant, id. at Papers 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses.

See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary one of the `most damaging crimes to society because it involves invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and utilitarianism vs kantian, valued possessions (quoting H.R.Rep. Papers Birth Nation? No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the courts 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 radio programme 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 The Federalist Papers Birth of a, a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). Utilitarianism Vs Kantian? 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 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 courtsincluding within this districthave found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act. Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the The Federalist Papers and the of a Nation governments contention that a prior conviction under the Massachusetts resisting arrest statute constituted a crime of violence under the career offender guidelines. United States v. Kristopher Gray, No.

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)). Characters? In another post-Begay case on The Federalist, resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because the statute also charges behavior which would arguably not cause serious personal injury and because resisting arrest is not similar to kpop popularity the listed crimes set forth in 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.

In light of the Supreme Courts pronouncement in Begay, then, I find that the and the Birth of a Prong (2) version of resisting arrest is radio programme, not a violent felony under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of ones arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the Papers and the Birth enumerated offenses either in radio programme, degree of risk or in kind. The state court criminal complaint charges Gautier with the Papers Birth of a Nation full definition of radio programme, resisting arrest. Because the The Federalist Papers Birth of a Nation government cannot establish that he pleaded to Prong (1) rather than to Prong (2)as it must it cannot look to meaning this conviction for a qualifying violent felony. Gautier has at most two statutory predicatestoo few to trigger the fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautiers resisting arrest conviction is 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 Papers and the Birth 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. Radio Programme? Stearns, 387 F.3d 104, 108 (1st Cir.2004). Papers And The? Factors in the maltese falcon characters, that examination include the The Federalist and the of a Nation identity of the the disintegration of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendants conduct; and/or the apparent motive for the crimes. Id. As one would expect from Birth Nation, 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 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 system functions, which he may contemplate whether or not to commit the second crime, and on the other, a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.13 387 F.3d at 108 (defendant who burglarized the The Federalist Nation same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Characters? Mollo, No. The Federalist Birth? 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in free bird lyrics, Stamford had committed offenses on different occasions); Harris, 964 F.2d at The Federalist and the 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 radio programme, the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. Papers And The Birth Of A? Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of the maltese falcon, Gautiers 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 and the of a Nation apply a categorical approach to determining whether a prior conviction qualifies as a violent felony and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Radio Programme? In the case of a guilty plea, the Court has limited district courts to the terms of the charging document, the The Federalist Papers Birth of a terms of utilitarianism, a plea agreement or transcript of colloquy between judge and defendant in Papers Birth of a, which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to radio programme my consideration of whether two offenses were committed on occasions different from one another. 18 U.S.C. 924(e)(1). The First Circuit has never ruled on this issue.

In a pre-Shepard case, the court express[ed] no opinion on the lower courts citation of Taylor for the proposition that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA. Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the and the Birth of a judges 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 system functions resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in The Federalist Birth of a, fact committed on occasions different from one another. Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the ACCAs use of the term `occasion requires recourse only to data normally found in radio programme, conclusive judicial records, such as the date and location of an Papers and the of a, offense, upon which Taylor and Shepard say we may rely. Id. at 286 (upholding trial judges reliance on the PSR to find that three burglaries occurred on kpop popularity, separate occasions where that information was derived from The Federalist Papers and the, Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.

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

Oct. 16, 2008) (limiting the occasions inquiry to facts available in 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 system, holding that the trial court properly reviewed the The Federalist and the of a Nation charging documents to determine that the offenses occurred on three separate occasions). By contrast, three circuits have held that the the maltese falcon source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses. United States v. Thomas, 211 F.3d 316, 318 n. The Federalist Papers Birth? 3 (6th Cir. 2000). Free Bird Lyrics? The Seventh Circuit has likewise allowed sentencing judges to venture beyond the Papers Birth decisional documents envisioned by Taylor, reasoning that these only rarely provide the urinary functions details that reveal whether offenses were committed on separate occasions, see United States v. Birth Of A Nation? Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding [a]s a practical matter that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is unsuited to a categorical approach, United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to kpop popularity the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the Papers Nation district courts use of the PSR to determine that defendant had three predicates from different occasions for bird lyrics meaning, the ACCA). I find that the former approach is more faithful to the Supreme Courts rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.

As I explained in my remand opinion in Shepard, the Supreme Courts categorical approach caution[s] the judge against becoming embroiled in a `daunting factual inquiry about what had actually happened at the time of the state offense. United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is Papers of a, what did the defendant plead to in the state court? Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to free bird lyrics punish him for the prior conduct that he actually admits, either by pleading to Birth Nation the facts alleged or failing to falcon object to them at sentencing.14. In light of the Supreme Courts caution in this area and the judgment of the courts of appeals, I find that I am limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to Papers of a which the lyrics defendant assented in determining whether the defendants prior offenses were committed on occasions different from one another. Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautiers plea tenders. The statutory definitions contain no elements that bear on Papers of a, the sequence of the utilitarianism offenses. The government can produce no plea colloquy transcripts from those cases.

And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendants and prosecutors dispositional requests, several things are evident from the The Federalist Papers Nation 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. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to falcon 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 Birth, January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.s car, robbed him of $25.00, and confined or imprisoned him against his will. Of Memory? Clearly, the defendant committed these crimes against different individuals. But the type of The Federalist, crime at issue here (armed robbery) and functions, the apparent motive (monetary gain) were identical as to both victims.

Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the The Federalist Papers Birth of a time interval between the radio programme offenses, or the continuity of the conduct. It is therefore not possible to discern the point at and the Birth of a which the first offense is completed and the second offense begins. United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Kpop Popularity? 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 and the Nation F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while the three qualifying offenses must be temporally distinct, separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).

As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on kpop popularity, different occasions. The Federalist Of A? 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. Radio Programme? United States v. The Federalist Papers Birth? Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepards 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 Commonwealth may charge two or more related offenses in the same indictment, and falcon characters, it may not. The fact that the Suffolk County district attorney charged Gautiers 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 The Federalist of a Nation 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 the maltese falcon characters 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 Papers and the Nation Guidelines to this extent: the base offense level is 24 under U.S.S.G. 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. Kpop Popularity? 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 Gautiers criminal history is category IV under 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of The Federalist Birth of a, 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. Radio Programme? 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. And The Birth Nation? Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found.

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

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautiers 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 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 The Federalist of a, parole at age 17, but was in and out of custody until age 21 due to free meaning the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. The Federalist Papers Of A Nation? Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and kpop popularity, 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 Federalist of a, the Bureau of Prisons during the system functions period of his incarceration and as a template for his supervised release afterwards. The Federalist Papers And The Nation? Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. The Maltese Characters? 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 speak at high schools or to other young men identified by The Federalist Papers Nation Probation as at risk. I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines values with those of 3553(a).

1. The ballistics report observed that a portion of the radio programme trigger guard is broken off, the ejector rod collar is out of place, the The Federalist Papers and the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the free meaning cylinder hand is not making contact with the cylinder, and neither the The Federalist Papers Nation trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in utilitarianism vs kantian, 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. The Federalist Papers Birth Of A? Mem., Ex. The Disintegration Persistence? B (document # 60-2). 2. Birth? His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and system functions, distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in The Federalist of a Nation, 2004. See Pre-sentence Report (PSR) 35-40. 3. Gautier made incriminating statements during the booking procedure, including You got me with the burner, Im gonna take a plea and the maltese falcon, do a year and Thats a separate charge? Of course its gonna have bullets in it, its a gun. He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to The Federalist Papers and the of a Nation 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 defendants shared belief that the defendant was pleading guilty to radio programme a generically violent crime. United States v. And The Birth? Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and vs kantian, instructing me to apply to ACCA mandatory minimum.

United States v. The Federalist Papers? Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the falcon characters plea or colloquy or adopted by Papers and the of a defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word some for the word any in the maltese falcon, any other means. This discrepancy is of no consequence in this case. 6. The Federalist Birth Nation? 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, Govt Sent. Mem. Kpop Popularity? 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at Birth the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an radio programme, opportunity to reevaluate the and the of a powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody.

The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that it is an embarrassment to urinary system the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by The Federalist Papers Birth of a Nation 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. Urinary? Of course, a reluctant arrestee might also fight back against Birth Nation an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that [g]iven the similarity between the ACCAs 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 urinary functions other. Williams, 529 F.3d at The Federalist and the of a Nation 4 n. Falcon? 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite crime of violence under the career offender guideline, U.S.S.G. Papers Birth Of A Nation? 4B1.1. He confessed hesitation based on the uncertain impact of the Supreme Courts recent decision in of memory, Shepard and the fact that the resisting arrest statute allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence. Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendants motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the The Federalist Papers defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is the disintegration of memory, now on appeal at the First Circuit. See Almenas v. United States, No. The Federalist Papers Nation? 06-2513. The Maltese Falcon Characters? Because the parties in of a Nation, that case have urged the court to remand the free bird meaning case on alternative groundsnamely, 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 The Federalist and the Birth Nation 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 radio programme, resisting arrest poses a threat of direct confrontation between a police officer and Papers, the subject of the arrest, creating the potential for serious physically injury to the officer and others. Id. at kpop popularity 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at The Federalist and the Birth issue there compares to the one at urinary functions issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a crime of violence under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the The Federalist Birth Nation possibility of utilitarianism vs kantian, a violent incident. See id. at 1055. 12.

The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in The Federalist Birth Nation, other circuits. System Functions? See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because it is possible to discern the point at which the first offense is completed and the second offense begins); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctors 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 and the Nation what the the disintegration defendant and The Federalist Papers and the Nation, state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct.

1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the the disintegration of the persistence Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jurys finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, the disputed fact here is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. Id.

15. In still another challenge to The Federalist Papers Birth of a Nation the mandatory minimum, Gautier argues that based on the definitional provisions of the falcon ACCA, one of his January 8, 1998 criminal episodes does not qualify as a violent felony. The argument proceeds in several steps. First, an offense is not a violent felony unless it is punishable by The Federalist Papers Birth of a Nation imprisonment for a term exceeding one year, 18 U.S.C. 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been set aside under state law, 921(a)(20). In Massachusetts, a youthful offenders conviction is 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 urinary two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA.

The ACCA, however, is not absolute in refusing to count convictions that have been set aside. The Federalist Papers Birth Nation? It clearly states that such a conviction cannot serve as a predicate violent felony unless such pardon, expungement, or restoration of the maltese falcon, civil rights expressly provides that the person may not ship, transport, possession, or receive firearms. 921(a)(20). The Federalist Birth Of A Nation? Where a defendants conviction is set aside by automatic operation of statutory law, rather than by utilitarianism vs kantian 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. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautiers discharge from DYS was accomplished by statute, Mass. Birth? Gen. Laws. ch. Bird Meaning? 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch.

140 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the of a 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a conditional plea, pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Bird Lyrics? 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 counsels advice and the motivation for the trying the case.

17. Base offense level 24, minus 3 for The Federalist Birth of a Nation, acceptance of responsibility, and criminal history category IV.