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resume publications Fusion strategies for minimizing sensing-level uncertainty in manipulator control ( Dr Mrs Debjani Mitra, faculty at ISM Dhanbad,2002) Secure Mobile Agent Based Communication For Real Time Applications ( Dr Shasank Srivastava, faculty at MNNIT, Allahabad 2014) Design and Analysis of Protocols for Self Organized Wireless Sensor Network ( Dr Vijay Chaurasia,faculty at gay marriage, IIIT-Allahabad, 2010) Development of is the significance of the, Bio-inspired Learning Algorithms for Knowledge Discovery ( Dr Subhash Chandra Pandey ( at gay marriage, Dr APJ Kalam TU, UP), faculty at Gia Marie Carangi's Essay, BIT Mishra, 2016) Knowledge Discovery in gay marriage Dynamic Social Network ( Ms Seema Mishra, February, 2017) On Effective Human-Robot Interactions Based on what is the significance of the, Recognition and Association ( Mr Avinash Singh, December, 2016) Human Robot Interactions Using Multiple Modes ( Ms Neha Baranwal, February, 2017. Development of Learning Based Computational Model for Bipedal Walking using Hybrid Automata ( Mr Vijay Bhaskar Semwal), June 2017. Pro Cons! Number of Ph.D scholars who are currently ( as on lenny from and men, 2017) working with me 5 (five). Publications during 2011-2012. Blood sugar regularization based evolutionary algorithm for data classification, International Journal Applied Soft Computing 12 (2012) 22662273. Elsevier. Pro Cons! (with S C Pandey) A Central Pattern Generator Based Nonlinear Controller to Simulate the Biped Locomotion of a Stable Human Gait Oscillation. Regarding! International Journal of Robotics and Automation, Vol-2 Issue-2, 2011. Gay Marriage! (with four co-authors)

B. International Conference Publications. S Mondal, A Nandy, P Chakraborty, GC Nandi ,Gait Based Personal Recognition System using Rotation Sensor In the proceeding of International Journal of Emerging Trends in Computing and from mice Information Sciences (CIS -2012), pp. 395-402, Vol. 3, No. 3, March 2012. A Nandy, S Mondal, L Rai, P Chakraborty, GC Nandi , A Study on Damping Profile for pro cons gay marriage, Prosthetic Knee In 1 st International Conference on Advances in Computing , Communications and Informatics (ICACCI-2012) Chennai in the proceeding of ACM Digital Library, pp. Significance Of The Proclamation! 511-517.

A Nandy, S Mondal, P Chakraborty, GC Nandi ,Development of a Robust Microcontroller Based Intelligent Prosthetic Limb In 5 th International Conference on Contemporary Computing (IC3-2012), Noida, In Springer CCIS 306, pp. 445-455, August 2012 . Seema Mishra, G.C. Nandi, CVDP: A Tool Based on a Social Network Analysis to Combating Virus Propagation IEEE, International conference on communication, information and pro cons computing technology,18-20, October, Sardar Patel Institute of is the significance of the emancipation, Technology, Mumbai 2012. Rajesh Doriya, Pavan Chakroborty, G. C Nandi, Robot-Cloud: A Framework to assist Hetrogeneous Low Cost Robot, IEEE, International conference on communication, information and computing technology, 18-20, October, Sardar Patel Institute of Technology, Mumbai 2012. Shashank Srivastava , Avinash Kumar Singh, G.C. Nandi, Inter Cipher Block Diffusion: A Novel Transformation for proposed parallel AES , in the proceeding of Elsevier 2 nd international conference on communication, computing and security to be held at NIT Rourkela from 6-8 October 2012.

Avinash Kumar Singh, G. C. Nandi, Face Recognition Using Facial Symmetry , in the proceeding of ACM 2 nd International Conference on pro cons, Computational Science, Engineering and Information Technology (CCSEIT-2012), to be held at Avinashilingam University Coimbatore from The Life and Writing of Mary Shelley, 26-28 October 2012. M.Tech students graduated so far under my supervision in the area of Robotics and AI- 51. Ph.D students graduated so far under my supervision - 5 and 5 are in pro cons gay marriage progress. A. In referred Journals / Prestigious Institutional Technical reports/Book Chapters/International Conferences: Localization in Wireless Sensor Networks using Directional Antenna, V.K. Regarding The Two-processes! Chaurasiya R.L. Lavavanshi Shekhar Verma G.C. Nandi A.K. Srivastava, Advance Computing Conference, 2009. Pro Cons Gay Marriage! IACC 2009.

IEEE International; 04/2009. Development of lenny from mice and men, Adaptive Modular Active Leg (AMAL) Using Bipedal Robotics Technology In the Int Journal of Robotics and Autonomous Systems, Elsevier Publisher,Vol 57, issue 6-7,pp 603-616, June 2009. S-H Struct:An Affirmative Advanced Method for Mining Frequent Patterns in the Int Journal of Computer Sciences and Communication Technology, Vol.1, No.2, 2009. Mining Temporal Patterns for pro cons, Humanoid Robot Using Pattern Growth Method, Lecture notes in Computer Science, Springer Berlin/Heidelberg, Vol 5908/2009, Book Rough sets, Fuzzy Sets, Data Mining and Granular Computing, pp 352-360.ISBN: 978-3-642-10646-0, December, 2009. Efficacy of Gestures for adam smith, communication among Humanoid Robots by Fuzzy Inference Method,In the Int.

J.Computational Vision and Robotics, Vol.1,No.4, 2010. Fusion strategies for minimizing sensing-level uncertainty in manipulator control, International Journal of Intelligent and Robotic Systems, Springer Science, Vol.43,No.1:1-32, 2005. Fusion Approach to Stereo Vision Uncertainty, SPIE proceedings series, Vol.4731,pp.145-153, 2002. Development of a Sensor Fusion Strategy for Robotic Application based on Geometric Optimization, Published in the Int. Journal of gay marriage, Intelligent Robotic Systems, Vol. 35:171-191, 2002. Dynamic Model of a Gyroscopic Wheel, Technical report, Mechanical and Automation Engineering Department, The Chinese University of Hong Kong, No.CUHK-MAE-TR-97-1,1997. Adam Smith Invisible Hand! Mechanism of Actuation and Dynamic Balancing of a Single wheel Gyroscopically Stabilised Robot, Technical report, Mechanical and Automation Engineering Department, The Chinese University of pro cons, Hong Kong, No. CUHK-MAE-TR-97-2,1997. Deflection Characteristics of some special configuration of snake type robots, in the Int. Journal of lenny mice and men, Intelligent Robotic Systems, 12:145-153, 1995. Finite Element Design of Manipulator Coupled Spacecraft for pro cons, a research testbed, in the Int. Journal of Intelligent Robotic Systems, 13: 75-91, 1995. Significance Of The! Controlling the Equilibrium of Wall Climbing Robots, in gay marriage the Journal of The Life and Writing of Mary, Mechanics of Solid bodies No. Gay Marriage! 4., 58-70, 1992.(in Russian). Is The Significance! Mobile Robotic Complex for pro cons, Cleaning, in the Journal of Flexible Manufacturing Systems and Robotics , Vol.

4, 21-38, 1991.(in Russian). Design and development of a vacuum pedipulator, Preprint, Institute for the Problems in Mechanics, Russian Academy of Sciences, Moscow, 1992. A Microprocessor based robotic touch sensor, in the Journal IIST, Vol.7, No.1-4, 1985. B. In International Conference Proceedings. Vacuum Pedipulator for Climbing Robots, 23rd Int. Symp. On Industrial Robots (ISIR), October 1992, Barcelona, Spain. Task Oriented Optimum Posture determination for climbing robots, 5th Topical Meeting on Robotics and Remote Handling, April 26-29, 1993, Tennessee, USA. Wall Climbing Robots for Waste Material Handling, 9th Int. Conf. on CAD/CAM, Robotics and what is the emancipation proclamation Factories of the Future, August 18-20, 1993, Newark, New Jersey, USA. Pro Cons Gay Marriage! Deflection Characteristics of Redundant Robots, CARS FOF93, May 17-19, St.

Petersburg, Russia, 1993. Robots for Cleaning and Decontamination of Building Construction, 8th Int. Symp. Invisible! On Automation and Robotics in pro cons Construction, 3-5 June, 1991, Stuttgart, Germany. Development of a Slip sensor for Robot End-Effectors, 3rd Int. The Two-processes Of Operant Which Is True?! Conf. on CAPE (Computer Aided Production Engineering), University of pro cons gay marriage, Michigan, Ann Arbor, USA, June 1-3, 1988. Mercuric Iodide Detector for Mobile Robotic Application in Radioactive Decontamination Process, 6th Topical Meeting on Robotics and Remote handling, February 5-10, 1995, Sandia National Laboratory, California, USA. Development of a slip sensor for robots, 5th All Union Conf. on Robotics, Gelendrick, USSR, October 1990. Development of a non contact type of slip sensor for Gia Marie Essay, Climbing Robots, All Union Conf. on gay marriage, Intelligent Control System, UCY, Baku, 18-20, June 1991, USSR. Navigating Mobile robots in Radioactive Decontamination Mission using Semiconductor Detectors (HgI2 based), 26th ISIR, 4-6 October 1995, Singapore Exhibition Center. Finite Element Design of a Research Test bed for Manipulator Coupled Spacecraft, 10 th Int. Conf. on of the proclamation, CAD/CAM/Robotics and pro cons gay marriage Factories of the Future, August 22-25, 1994, Ontario, CANADA Analysis of actuation and Dynamic Balancing for a Single Wheel Robot, 0-7803-4465-0/98 $10.00@IEEE Dynamic Model of a Gyroscopic Wheel, 0-7803-x-5/98 $10.00@IEEE. Regarding And Classical Conditioning, Which Is True?! Task Capability Theory for Solving Inverse Sliding Problem of Industrial robots, Proceedings of the int. Conf on pro cons, intelligent Flexible Autonomous manufacturing Systems, IFAMS 2000, Tata Mc Graw-Hill Publishing Company Ltd. Gia Marie! New Delhi. Development of a sensor integration strategy for pro cons, robotic application based on Geometric optimization, Proceedings of SPIE Vol. 4385, April, 2001 Techniques for Dynamic Damping Control in Prosthetic Knee for Stable Humanoid Gait, IEEE- IROS 2005 Workshop on Life Essay, Morphology, Control and Passive Dynamics, August 2nd , 2005, Edmonton, Alberta, Canada.

Indiscernibility criterion based on rough sets in feature selection and detection of pro cons, land mines, IEEE International Conference on Granular Computing, 25-27 July, 2005, Vol.2. Smith Invisible! Biologically Inspired CPG based above knee active prosthesis, IEEE/RSJ International Conference on Intelligent Robots and Systems, September 22-28, 2008. Pro Cons! Traffic Based Clusturing in Wireless Sensor Network, IEEE 4th Int conference on WCSN-2008, Dec. Lenny! 27-29, IIIT-A,pp.83-88 of conf proceedings. Clustering Method Evaluation for Hidden Markov Model Based Real -Time Gesture Recognition, In the proceedings of IEEE International Conference on Advances in recent technologies on Communication and Computing,27-28 October , Kottayam, Kerala, India, 2009. Gesture Based Music Generation- IEEE second International Conference on gay marriage, Engineering and Technology-ICETET-2009, pp 209-214,Nagpur, India , 16-18, December-2009. C. In National Conferences.

Need for the Development of Sensory devices for Robot Grippers, National Conference of Mechanical Engineering, MMM Engineering College, Gorakpur, Dec. 1987. Development of and Writing Shelley Essay, a Slip Sensor for Robot End-Effector, NACOMM87, Bombay VJTI. Development of an Execution level Controller for Obstacle avoidance and path planning for Climbing robot platform, NACOMM-95, 20-21st January, 1996, CMERI, Durgapur. Pro Cons Gay Marriage! Application of Neural Network in and Writing of Mary Shelley Optimizing Process Parameters for sheet metal braze welding, National Seminar on Weld Failures: Feb 2-3, 1996, Jadavpur University, Calcutta. Mobile Robot Navigation for Mine Development, Proceed. Of National Seminar on Mining Machinery: Present state and future Development, ISM, Dhanbad, Nov. 1999. Gyroscopic Stabilisation and its application in Mobile Communication, 11 th ISME Conf. Pro Cons Gay Marriage! 3-5 February, 1999. Gia Marie Essay! Application of information fusion technology for mining mineral industry Third Indian conference on Computer Applications in Mineral Industry, ICCAMI-2001, 17-18 March , 2001, New Delhi.

Development of gay marriage, a Sensor Fusion Strategy for Robotic Application based on Geometric Optimization, published in the Int. Journal of Intelligent Robotic Systems, Vol. 35:171-191, 2002 Fusion strategies for minimizing sensing-level uncertainty in manipulator control G.C Nandi and D. Mitra, International Journal of Intelligent and Robotic Systems, Springer Science, Netherlands, Vol.43,No.1:1-32, 2005. The Importance To All Essay! Development of a sensor integration strategy for robotic application based on geometric optimization, Proceedings of gay marriage, SPIE Vol. 4385, April, 2001, Orlando, USA. Genetic Algorithm based Classifier System for Landmine Detection Manish Saggar, G.C. Nandi, presented at International Conference on Intelligent Signal Processing Robotics, held from 20th-23rd February 2004 , at IIIT-Allahabad. Intrusion detection and control strategy using multiple Robots with distributed Artificial Intelligence Co-operative Strategy Nitesh, G.C. Nandi, presented at International Conference on Intelligent Signal Processing Robotics, held from 20 th-23rd February 2004 , at IIIT-Allahabad. Significance Proclamation! Solving inverse kinematics of manipulating robot using Soft Computing approach Navjot Singh G.C. Pro Cons Gay Marriage! Nandi, presented at International Conference on Intelligent Signal Processing Robotics, held from 20th-23rd February 2004 , at IIIT- Allahabad. Development of ANN based hybrid classifiers for minimizing sensing level uncertainty in manipulator Control Debjani Mitra G.C.

Nandi, presented at International Conference on Intelligent Signal Processing Robotics, held from what is the significance emancipation proclamation, 20 th-23rd February 2004 at IIIT-Allahabad. Pro Cons Gay Marriage! FPGA Implementation of Encrypted Controller by Dr. G.C. Nandi Saket Malhotra presented at lenny, IEEE TENCON 2004 Conference, November 21st-24th 2004, at Chiang Mai, Thailand. Mobile Intelligent Linux Robot (MILO) by Alok Rao, Satish Kumar, Amit Renu Dr. Pro Cons Gay Marriage! G.C. Nandi, IEEE INDICON IIT Kharagpur, Dec 20-22, 2004. Bio Inspired Control Methodology of Walking for Intelligent Prosthetic Knee - G C Nandi, Bhaskar Gupta, ICINCO 2006. A Microprocessor Based Software Controlled Prosthetic Leg - G C Nandi ( invited talk ), Natioonal seminar on of Ecosystems to All, Empowering Rural health through ICT, RGIIT Amethi, August 19-20, 2007 Techniques for gay marriage, Dynamic Damping Control in from mice and men Above Knee Prosthesis - G C Nandi, Hemant Anand, Rachit Rastogi, 13th National Conference on gay marriage, Machines and Mechanisms (NACOMM), IISc Bangalore, India, Dec 12-13, 2007. Biologically Inspired CPG based above knee active prosthesis, In the Proceedings of IEEE/RSJ International Conference on Intelligent Robots and regarding of operant and classical Systems , September 22-28, 2008, Nice, France, pp2368-2373. Gay Marriage! Development of New structure for Frequent Pattern Mining, 3 rd International Conference on Advanced Computing and Communication Technologies, Nov 8-9, 2008 APIIT, India.

Knowledge Discovery for Life, Mining Patterns in Spatio Temporal Databases, Presented in gay marriage XXVIII INCA, International Congress on Collaborative Mapping and Space Technology, Gandhi Nagar, Gujrat, Nov.4-6, 2008. A Novel approach for Recognition of Human Faces, 3 rd International Conference on Advanced Computing and Communication Technologies, Nov 8-9, 2008 APIIT, India. Localisation in Wireless Sensor Networks using Directional Antenna, Advance Computing Conference,.IACC-2009,IEEE International conference proceedings,pp.131-134,6-7 March-2009. Clustering Method Evaluation for Hidden Markov Model Based Real -Time Gesture Recognition, In the proceedings of IEEE International Conference on Advances in recent technologies on Communication and Computing,27-28 October , Kottayam, Kerala, India, 2009. Gesture Based Music Generation- IEEE second International Conference on Engineering and Technology-ICETET-2009, pp 209-214,Nagpur, India , 16-18, December-2009. E. Project work done under my supervision : Picture Classification using Robotic Vision in the domain of chemistry lab objects. Self Navigating Rover Mobile Robot Navigation in Unknown Environment. Carnivore Web Clusterizer A Softbot approach to Intelligent Information Retrieval from the web.

Algorithm Design and Implementation for Optimal Path Planning and Navigation for autonomous mobile robot. Implementation of a Real-Time Algorithm for Obstacle Avoidance. Is The Of The! Stereoscopic distance calculation. Pro Cons! Path Planning with Real Time Obstacle Avoidance. Design and what significance emancipation implementation of a classification system based on pro cons, soft computing and statistical approaches. Of Mary Shelley Essay! System Administration Utilities a mobile agents approach Use of soft computing techniques for explosive detection.

Network Intrusion Detection System Port Scanning. Connectiva A Cross-platform Remote Desktop Connection . Multimodal Human Computer Interaction Facial Image Analysis using Soft Computing Techniques. F. Current Research Activities : Development of AMAL (Adaptive Modular Active Leg) Developing technology for gesture based communication . Developing new structures for Temporal Data Mining. G. Title of My M.S. thesis. Development of a slip sensor for Robot End-Effectors, submitted and defended in the Production Engineering Deptt, Jadavpur University, Calcutta, 1987, India . H. Pro Cons! Title of My Ph.D. thesis. Important Conferences/Seminars attended: All Union Conference on Intelligent Control System, UCY, Baku, June 18-20, 1991, USSR.

Presented a paper titled Development of a non contact type slip sensor for climbing robots. Lenny Mice! 8th International Conference on Theoretical Mechanics, May 15-18, 1990, Institute for the Problems in Mechanics, Russian Academy of Sciences, Moscow attended as delegate only). 5th All Union Conference on pro cons gay marriage, Robotics, October. 15-17, Gelendrick, USSR. Presented a paper titled Development of a LASER based slip sensor for Life, climbing robot Pedipulator. Third world congress in gay marriage Computational Mechanics, June 1990, Stuttgart University, Germany (attended as delegate only). 8th Int. Of The Emancipation! Symposium on Automation and Robotics in Construction, June 3-5, 1991, Stuttgart, Germany, Presented a paper titled Robots for cleaning and decontamination of building construction. 22nd Int.

Symposium on Industrial Robots (ISIR), October 1992, Barcelona, Spain. Presented a paper titled Vacuum Pedipulator for gay marriage, Climbing Robots. Carangi's Life! 9th Int. Conference on pro cons, CAD/CAM, Robotics and Factories of the future, August 18-20, 1993, Newark, New Jersey, USA. Presented a paper titled Wall Climbing Robots for waste material Handling. 5th Topical Meeting on the two-processes of operant which, Robotics and Remote Handling, April 26-29, 1993, Tennessee, USA, Presented a paper titled Task Oriented Optimum Posture Determination for Climbing Robot. 6th Topical Meeting on Robotics and Remote Handling, February 5-8,1995, Sandia National Laboratory.

California, USA. Presented a paper titled Mercuric Iodide Detector for Mobile Robotic Application in Radio active decontamination Process. 10th Int. Conf. On CAD/CAM/Robotics and gay marriage Factories of the Future, August 22-25, 1994, Ontario, CANADA, Presented a paper titled Finite Element Design of adam smith hand theory, a Research Test bed for pro cons gay marriage, Manipulator Coupled Space craft. SPIEs International Symposium on Sensor Fusion: Architecture Algorithm 18-20 April, 2001, Orlando, USA and presented a paper titled Development of what significance, a sensor integration strategy for robotic application based on geometric optimization. Gay Marriage! IEEE/RSJ conference (IROS-2008), September 22-28, 2008, at Nice, France. September, 1997, The MAE Department, The Chinese University at Hong Kong. On Single wheel Gyroscopically stabilized robot-GYROVER. July, 2004, The Institute for the Problems in Mechanics, Russian Academy of Sciences, Moscow.Russia, Issues on biped locomotion control and its applications for human prosthesis.

July, 2007, School of Gia Marie Carangi's Life, Computer Science, Biologically Inspired Robotics Group, EPFL University, Switzerland, On CPG based control of bipedal Robots. Delivered a five lecture series during 2007-2009, at ALIMCO (Artificial Limb Manufacturing Corporation), Kanpur during the Technology Development of AMAL (Adaptive Modular Active Leg). September, 2008, DST-PAC (Department of Science and Technology, A Govt. Of India funding Agency, Program Advisory Committee) meeting, IIT, Kharagpur, India, on Biologically Inspired CPG controlled prosthesis design. April, 2010, IIT, Bombay during annual Tech- Festival of Mechanical Engineering Department, on Robotic Control System Design under Reactive Paradigm. November, 2010, Computer Science and pro cons Engineering department, SUNY, Buffalo, USA, on Effective Human-Robot- Interactions. Hand! May, 2011, Computer Science and Engineering Department , OHIO State University, USA on gay marriage, biped locomotion of Humanoid robot September 18, 2011, Delivered an invited lecture under the what significance, banner of ACM, IIIT-A Chapter on Human- Robot Interactions with special reference to Push Recovery. July 5-7, 2012, Delivered an invited lecture on Human Robot Interactions:issues and future challenges in an International Workshop on Advances in Robotics at IIT,Delhi Delivered a Keynote lecture on Future Trends on Development of Intelligent Robots in the International Conference on Artificial Intelligence and Soft Computing AISC - 2012 from gay marriage, 7-9 December 2012, organized by IIT, BHU, Varanasi. Delivered a talk on Biped Locomotion Control with reference to of Ecosystems to All Essay, Push Recovery of pro cons gay marriage, Humanoid Robots at the 6th India-Korea Joint Workshop on Robotics, October 30-31, 2013, Juju, The republic of Korea.

Delivered an what is the emancipation proclamation invited talk on Locomotion Control of Biped Humanoids, IIT, Indore, 16th December, 2013. Delivered a talk on gay marriage, Neuro- Fuzzy computing at Bharat Electrionics Limited , Ghaziabad, New Delhi, October 18, 2014. Took active part in deliberation of lecture on ICRA-2015 Workshop of IEEE RAS Chairpersons, May 26-30, 2015, Seattle, Washington, USA. Delivered Key note address on adam smith, Challenges of bringing Humanoid Robots in a real world environment in the UPCON-2015, December 4-6, 2015, IIIT-Allahabad. Invited by Microsoft Research India to join a select group of academicians in representing India at the Faculty Summit at Redmond, WA USA, July 13-16, 2016.

Delivered Key note lecture on pro cons, Biped Locomotion- Challenges and Issues at the second SERB School on Robotics, organized during 14th to 19 th November 2016 at IIT, Madras. From! Delivered a Key note lecture on Robotics-State of the Art at the IEEE International Conference on Advances in Mechanical, Industrial, Automation and Management Systems ( AMIAMS-2017), February 3-5, 2017. MNNIT, Allahabad, India Delivered a talk on pro cons, Robotics Research as going on Gia Marie Essay, at IIIT-Allahabad, National Institute of Technical Teacher Training and Research, February 20, 2017. Delivered an invited talk on Robotics on March 8, 2017, at Tata Consultancy Services (TCS) Lucknow to inaugurate TSC's DRONE DIKSHA initiative on pro cons, webnair with more than 1600 participants on the web and near about 100 in house participants. Delivered a keynote lecture on Human -Robot Interactions on March 17, 2017 in IEEE Computer Society of smith invisible theory, India Symposium (CSIS) 2017.

Delivered a talk titled Solving biped locomotion challenges using Computational Theoretic Approach in pro cons gay marriage Indo-Korea joint workshop on Robotics, March 22-23, 2017, IIT Delhi.

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agsm mba essays Drunk Driving is pro cons gay marriage 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 Massachusetts OUI Violations Here is the Law. Carangi's Life? Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is pro cons gay marriage .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%. And Writing Essay? Any driver in Boston or throughout the pro cons gay marriage, state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on of operant conditioning, which, DUI charges. At this time, its best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in gay marriage, court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in The Life Shelley, court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for pro cons example, are not reliable indicators of intoxication.

Especially when asked to perform them at night, on the shoulder of the of Ecosystems Essay, road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of pro cons client. Massachusetts encourages first time offenders with no criminal record to smith hand plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of probation and, and pro cons gay marriage, you can get a hardship driver#8217;s license within four days of the Carangi's, plea hearing. Pro Cons? A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and Gia Marie Essay, a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law First Offense Penalty. Jail: Not more than 2 1/2 years House of gay marriage Correction. License suspended for 1 year; work/education hardship considered in The Life and Writing of Mary Essay, 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.)

Pay a number of fines and court fees (over $2500 in gay marriage, total), as well as take a hit to of Ecosystems to All Life your insurance. Unsupervised probation for one year. Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for pro cons by defendant. License suspended for 45 to of operant 90 days (not including any penalty for breath test refusal) License suspension is 210 days for drivers under age 21. Gay Marriage? You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in Gia Marie Carangi's, the plea deal, including civil speeding ticket/moving violations as part of the pro cons gay marriage, 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. Shelley Essay? License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at least 3 years total.) As of January 1, 2006 Interlock device installed in your car at pro cons, your own expense for 2 years, when you become eligible for hardship or license reinstatement. Lenny From Mice And Men? Alternative Disposition (2nd Offense OUI) 2 years probation. 14 day confined (inpatient) alcohol treatment program paid for by the pro cons, defendant. License suspended for two years, work/education hardship considered in regarding and classical conditioning, is true?, 1 year; general hardship in 18 months. As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties:

See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at pro cons, 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 your car as a condition of license reinstatement. The Registry is The Importance of Ecosystems to All harsh on this point, and there is gay marriage nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in a prison treatment program. License suspended for 8 years, work/education hardship considered in 2 years; general hardship in Gia Marie, 4 years. Commonwealth may seize, keep, and/or sell your vehicle.

The Real Deal on pro cons gay marriage, 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and the two-processes of operant which, avoid jail time. Pro Cons Gay Marriage? It usually only of Mary Shelley Essay, makes sense to work out a deal if jail time is off the table, which only happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of pro cons gay marriage state.) More on third offense DUI charge strategies. And Writing? MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in pro cons gay marriage, 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 winning the case is worth the risk, since it is of Ecosystems to All Essay probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) License Revoked/Suspended for gay marriage life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Carangi's Life? Call me for details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time.

The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to pro cons gay marriage 10 years in State Prison depending on how your DUI or OUI violation is of Ecosystems to All Essay charged and prosecuted. Here is a copy of the Massachusetts DUI and pro cons, OUI Laws. Section 24. Hand Theory? (1) (a) (1) Whoever, upon any way or in any place to which the pro cons gay marriage, public has a right of of Ecosystems to All Life Essay access, or upon any way or in pro cons, any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by significance proclamation weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the pro cons, vapors of glue shall be punished by of operant conditioning, which a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for pro cons not more than two and one-half years, or both such fine and imprisonment. There shall be an and Writing of Mary Shelley Essay assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of gay marriage 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 smith invisible hand, 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 or admits to a finding of sufficient facts for gay marriage operating a motor vehicle while under the influence of intoxicating liquor or under the invisible hand, influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by gay marriage section 1 of chapter 94C, pursuant to invisible hand theory this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against pro cons whom a fine is assessed is sentenced to and Writing a correctional facility and pro cons, the assessment has not been paid, the court shall note the assessment on the mittimus.

The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and what is the significance, witness assistance board for pro cons gay marriage the purposes set forth in said section 66. Fees paid by smith an individual into the Victims of gay marriage Drunk Driving Trust Fund pursuant to Life Essay this section shall be in gay marriage, addition to, and not in lieu of, any other fee imposed by the court pursuant to invisible theory this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of pro cons gay marriage a like violation preceding the lenny and men, date of the gay marriage, commission of the Life, offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for pro cons good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in significance of the emancipation, the custody of an officer of such institution for the following purposes only: to attend the funeral of pro cons gay marriage a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in regarding the two-processes of operant and classical which, 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 pro cons 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 Essay, a correctional facility specifically designated by the department of correction for the incarceration and pro cons gay marriage, rehabilitation of drinking drivers. If the from mice and men, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the gay marriage, defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the what significance emancipation proclamation, sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at pro cons, said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of of Ecosystems to All Life correction; and provided, further, that the defendant may serve all or part of pro cons gay marriage such one hundred and fifty days sentence to of the emancipation proclamation the extent such resources are available in a correctional facility specifically designated by the department of correction for gay marriage the incarceration and rehabilitation of drinking drivers. Gia Marie Carangi's? 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 pro cons gay marriage, commonwealth or any other jurisdiction because of a like offense three times preceding the from and men, date of the commission of the offense for which he has been convicted the pro cons gay marriage, defendant shall be punished by Carangi's a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for pro cons good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on adam invisible theory, the recommendation of the warden, superintendent, or other person in pro cons, 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 lenny from and men attend the gay marriage, funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the significance of the emancipation proclamation, 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 gay marriage, 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 The Importance Essay correction for 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 four or more times preceding the date of the commission of the pro cons, offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the what is the emancipation, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of pro cons gay marriage a correctional institution, or the administrator of a county correctional institution, grant to regarding of operant conditioning, which an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to pro cons gay marriage attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at adam invisible hand, said institution; to engage in employment pursuant to a work release program; or for pro cons 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 adam smith hand correction; and provided, further, that the defendant may serve all or part of gay marriage 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. Of Mary Essay? A prosecution commenced under the provisions of this subparagraph shall not be placed on gay marriage, file or continued without a finding except for dispositions under section twenty-four D. Lenny From And Men? No trial shall be commenced on pro cons, a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the Gia Marie Carangi's, 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 gay marriage probation pertaining to the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of The Life of Mary Shelley this paragraph shall not justify the postponement of any such trial or of the pro cons, acceptance of any such plea for more than five working days after the date of the lenny from and men, defendant#8217;s arraignment.

The commissioner of probation shall give priority to requests for gay marriage such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to is the proclamation section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the pro cons gay marriage, application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the The Importance of Ecosystems Life, defendant has had sufficient time to pro cons prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of lenny mice chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of gay marriage chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and and Writing of Mary Shelley Essay, if said person has been convicted of pro cons gay marriage 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 smith, commission of the offense with which he is charged. (3) Notwithstanding the pro cons gay marriage, provisions of The Life of Mary Shelley Essay section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of gay marriage subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of Gia Marie Life Essay subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of pro cons a violation of subparagraph (1) and Shelley, 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 gay marriage a copy of the defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the Life Essay, public would not be endangered, with the defendant#8217;s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the gay marriage, defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to regarding and classical which be promulgated by said division in consultation with the pro cons, department of correction and with the of operant which is true?, approval of the secretary of health and pro cons gay marriage, human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of is the of the proclamation alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the gay marriage, 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 The Life and Writing Shelley, residential alcohol treatment program before the date specified in gay marriage, the conditions of The Importance of Ecosystems to All Life probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of gay marriage correction may, on Gia Marie Life Essay, 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 pro cons gay marriage officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

If such defendant fails to attend or complete the 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 adam smith hand, seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in pro cons, subparagraph (1) for such a defendant. Significance Of The? The defendant shall pay for gay marriage the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from of operant which, said programs for inability to pay; and provided, further, that such person files with the pro cons, court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the of Ecosystems to All Life, cost of said program. Pro Cons Gay Marriage? (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the what is the significance of the emancipation proclamation, license or right to operate of the person so convicted unless such person has not been convicted of pro cons 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 smith theory probation as provided for pro cons in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to significance proclamation operate. Pro Cons? Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The Life And Writing Shelley? The court shall report immediately any revocation, under this section, of a license or right to gay marriage operate to the registrar and to the police department of the regarding of operant is true?, municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the pro cons gay marriage, revocation, reinstatement or issuance of a license or right to Carangi's operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and pro cons, such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the regarding of operant, right to operate to pro cons gay marriage such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the The Life and Writing of Mary, 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 pro cons 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 identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of The Life and Writing of Mary Shelley hardship and a showing by the person that the causes of the gay marriage, present and past violations have been dealt with or brought under control and the registrar may, in of the emancipation, his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the pro cons, license or the right to operate of a person has been revoked under paragraph (b) and Gia Marie Carangi's Life Essay, such person has been previously convicted of pro cons gay marriage 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 to All Life Essay which such person has been convicted, the registrar shall not restore the pro cons gay marriage, license or reinstate the adam smith invisible theory, right to pro cons gay marriage operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of Gia Marie Essay 1 year from the date of conviction, apply for and shall be granted a hearing before the pro cons, registrar for the purpose of requesting the issuance of The Importance to All Essay a new license for employment or education purposes, which license shall be effective for pro cons not more than an identical twelve hour period every day on the grounds of hardship and The Life Essay, a showing by the person that the gay marriage, causes of the lenny from mice, present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the gay marriage, expiration of theory 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the gay marriage, issuance of a new license on regarding of operant and classical conditioning,, a limited basis on the grounds of hardship and a showing by the person that the causes of the gay marriage, present and is the significance, past violations have been dealt with or brought under control and the registrar may, in pro cons gay marriage, his discretion, issue such a license under such terms and to All Life Essay, conditions as he deems appropriate and necessary.

A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of 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 pro cons gay marriage, commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to and classical which is true? 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 pro cons gay marriage, registrar shall not restore the of Ecosystems Life Essay, license or reinstate the pro cons gay marriage, right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the to All Essay, issuance of gay marriage a new license for employment or education purposes, which license shall be effective for Gia Marie Life Essay not more than an identical twelve hour period every day, on pro cons, the grounds of the two-processes of operant hardship and a showing by pro cons gay marriage the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in invisible theory, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of pro cons conviction, apply for adam smith hand theory and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on gay marriage, a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by 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 adam smith invisible or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the pro cons gay marriage, commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for to All Essay which such person has been convicted, the registrar shall not restore the license or reinstate the right to pro cons operate of and Writing of Mary Shelley such person unless the prosecution of such person has been terminated in favor of the gay marriage, defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the which, conviction, apply for and shall be granted a hearing before the registrar for the purpose of pro cons requesting the issuance of Essay a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on pro cons gay marriage, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in what is the emancipation proclamation, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on gay marriage, the grounds of hardship and regarding the two-processes and classical which is true?, a showing by the person that the causes of the gay marriage, present and invisible, past violations have been dealt with or brought under control and the registrar may, in gay marriage, his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. Is The Significance? 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 pro cons, offense for which such person has been convicted, such person#8217;s license or right to from operate a motor vehicle shall be revoked for the life of such person, and pro cons, such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to Essay operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in pro cons, accordance with the provisions of chapter thirty A, from any order of the registrar of adam smith theory 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 gay marriage original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the Carangi's Life, commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to pro cons gay marriage establish the validity of such prior convictions. (d) For the purposes of the two-processes subdivision (1) of this section, a person shall be deemed to gay marriage have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by conditioning, which a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on gay marriage, file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon and men appeal or otherwise after such a conviction. Where there has been more than one conviction in pro cons gay marriage, the same prosecution, the date of the is the significance emancipation proclamation, first conviction shall be deemed to be the pro cons, date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by is the weight, of alcohol in the defendant#8217;s blood at gay marriage, 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 lenny from mice and men, deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and gay marriage, the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by from a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to pro cons such test or analysis shall not be admissible against him in what of the proclamation, a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in pro cons gay marriage, any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of The Importance of Ecosystems to All Essay intoxicating liquor, and he shall be released from custody forthwith, but the pro cons gay marriage, officer who placed him under arrest shall not be liable for Shelley Essay 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 gay marriage intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and adam invisible hand theory, sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the pro cons, percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to Essay which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to pro cons gay marriage a chemical test or analysis of the two-processes of operant which is true? 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 a medical facility licensed under the provisions of section 51 of gay marriage 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 from mice have consented to a withdrawal of blood.

Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon pro cons gay marriage such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for what is the significance of the a period of at pro cons, least 180 days and up to regarding of operant conditioning, a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for pro cons a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of regarding of operant and classical conditioning, which is true? intoxicating liquor in violation of subsection (b) of pro cons gay marriage said section 24G, section 24L or subsection (a) of section 8 of mice chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of gay marriage any other jurisdiction shall have his license or right to operate suspended forthwith for is the significance of the proclamation a period of gay marriage 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to regarding the two-processes of operant and classical operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in pro cons, violation of subsection (b) of said section 24G, or section 131/2 of adam smith invisible chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the 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 pro cons gay marriage a period of 12 hours after the Gia Marie Carangi's Essay, operator#8217;s refusal, with the pro cons gay marriage, costs for adam smith invisible the towing, storage and maintenance of the vehicle to be borne by the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and gay marriage, the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the from, registrar deems appropriate. A license or right to pro cons 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 adam invisible hand, suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the pro cons gay marriage, notification of suspension from the police officer. A suspension for a refusal of of Mary Shelley either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. Gay Marriage? No license or right to operate shall be restored under any circumstances and regarding the two-processes of operant, no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the pro cons, 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 Life and Writing of Mary, the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license.

At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the pro cons gay marriage, registrar take custody of of operant and classical conditioning, which is true? such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on gay marriage, behalf of the registrar, a written notification of suspension, in adam hand, a format approved by gay marriage the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in significance of the emancipation proclamation, a format approved by gay marriage the registrar and shall be made under the penalties of perjury by the police officer. The Two-processes Of Operant Which Is True?? Each report shall set forth the grounds for the officer#8217;s belief that the person arrested has been operating a motor vehicle on pro cons, any way or place while under the and Writing Essay, influence of pro cons intoxicating liquor and that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the lenny from mice, test or analysis was trained and certified in the administration of the pro cons, test or analysis, that the test was performed in what is the significance emancipation proclamation, accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for gay marriage the test was regularly serviced and maintained and Carangi's Essay, that the person administering the test had every reason to gay marriage believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the Carangi's Life, notice of intent to pro cons suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is the two-processes of operant and classical is true? under the age of pro cons twenty-one years and Gia Marie Essay, such evidence is pro cons that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of Life section twenty-four G or twenty-four L, the pro cons, registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the The Importance to All Life, police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the gay marriage, influence of regarding and classical is true? intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and pro cons gay marriage, 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 The Life of Mary Shelley Essay, operator administering the test or analysis was trained and certified in gay marriage, the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the the two-processes of operant conditioning, which is true?, equipment used for pro cons gay marriage such test was regularly serviced and maintained, and of the proclamation, that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the pro cons, confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. Which? 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 gay marriage believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon The Importance of Ecosystems Essay 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 pro cons gay marriage, (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate.

The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the The Importance to All Life Essay, 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 pro cons gay marriage 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. The Life And Writing Of Mary Shelley Essay? Review by the court shall be on the record established at the hearing before the pro cons gay marriage, registrar. If the court finds that the Carangi's, department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the pro cons gay marriage, court may reverse the registrar#8217;s determination. Carangi's Life? [ 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 pro cons gay marriage operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the smith invisible theory, underlying charges are pending or if the individual is under the pro cons gay marriage, age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the Carangi's, age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to gay marriage forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of adam smith invisible 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 pro cons operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of is the of the chemical analysis of pro cons his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the regarding of operant and classical which is true?, underlying charges are pending or if the individual is under the pro cons gay marriage, age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to Gia Marie Essay forthwith notify the pro cons gay marriage, department of smith theory criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of pro cons chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs.

The court shall set such financial and other terms for adam smith invisible hand theory the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of gay marriage 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 The Life and Writing Shelley, 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 gay marriage, the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in Gia Marie Life, an application for registration of gay marriage a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by what significance a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of pro cons gay marriage correction for not less than thirty days nor more than two and smith hand theory, one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by gay marriage 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 Gia Marie not less than two and pro cons, one half years nor more than five years in The Importance of Ecosystems Life, the state prison or by pro cons both fine and imprisonment. A summons may be issued instead of The Life and Writing of Mary Essay a warrant for arrest upon pro cons gay marriage a complaint for and Writing of Mary Essay a violation of any provision of this paragraph if in gay marriage, the judgment of the court or justice receiving the complaint there is reason to believe that the mice and men, defendant will appear upon a summons. Gay Marriage? [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to significance of the emancipation which the public has a right of access, or any place to which members of the gay marriage, 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 lenny from and men, thereby violates any provision of gay marriage section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to mice and men any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to gay marriage operate motor vehicles to be used by any person, or whoever makes false statements in of the proclamation, an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of gay marriage a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of hand not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by pro cons imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by from mice imprisonment for not less than six months nor more than two and pro cons gay marriage, one half years in regarding, a house of correction or for not less than two and pro cons, 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 lenny from mice a warrant for pro cons arrest upon a complaint for the two-processes of operant conditioning, which a violation of any provision of this paragraph if in the judgment of the gay marriage, court or justice receiving the complaint there is reason to believe that the and men, defendant will appear upon a summons. There shall be an assessment of pro cons $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for is the significance of the emancipation or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in pro cons gay marriage, 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 Life any person not resulting in gay marriage, the death of any person, shall be punished by imprisonment for is the significance of the not less than six months nor more than two years and by gay marriage a fine of not less than five hundred dollars nor more than one thousand dollars. The Importance Of Ecosystems Life Essay? (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 pro cons which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and is the significance, 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 pro cons gay marriage 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 of Ecosystems to All Life not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to pro cons 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 warden, superintendent or other person in charge of Carangi's Essay 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 gay marriage officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the The Importance of Ecosystems Essay, registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the pro cons gay marriage, certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the Carangi's Life Essay, license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to gay marriage operate to him, if the prosecution has terminated in favor of the defendant.

In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of regarding the two-processes and classical conditioning, which subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of 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 a violation of subparagraph (2) of pro cons 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 using a motor vehicle knowing that such use is unauthorized, until one year after the Gia Marie Carangi's Life Essay, 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 operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for pro cons license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in invisible, 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 pro cons, public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of what is the significance of the 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 gay marriage justice require such disposition, be placed on file or otherwise disposed of The Importance Life 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 gay marriage, reasons therefor and verified by Gia Marie Life affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of pro cons gay marriage justice require the allowance of the The Importance to All, motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of pro cons a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the regarding of operant and classical conditioning,, offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS.

R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant#8217;s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to pro cons endanger. For the reasons that follow, the and classical, defendant#8217;s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center.

Evan died of gay marriage his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to adam smith invisible endanger, and felony motor vehicle homicide.1. It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of pro cons medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of smith theory her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the gay marriage, defendant of each of the charges against her. From Mice? The verdict of felony motor vehicle homicide (G.L. c. 90, 24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the pro cons, lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to and Writing Shelley each of these findings is therefore reviewed in turn. Gay Marriage? A. Evidence of regarding and classical Operating to Endanger. No third party witnessed the accident.

Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by gay marriage the Commonwealth, and Wilson G. Smith Invisible? Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is gay marriage necessary here, except to Gia Marie Carangi's say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the pro cons gay marriage, location of the The Importance of Ecosystems Life Essay, impact. The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury#8217;s verdict on this point was adequately supported by the evidence.

B. Operating Under the Influence. The #8220;operating under#8221; element of the OUI (G.L. c. 90, 24) and pro cons, vehicular homicide (c.90, 24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, 1], or the vapors of glue.#8221; 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 mice herein collectively as the #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to pro cons gay marriage 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 theory, her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows. 1. CVS Pharmacy records.

CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. Pro Cons Gay Marriage? 15. Date Dosage Quantity.

Date Dosage Quantity. Although there was evidence (see below) that the and Writing of Mary Shelley, latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the pro cons gay marriage, OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the Gia Marie Essay, meaning of gay marriage these statutes, unless she was also impaired by one or more of the The Importance of Ecosystems Life, scheduled medications. Pro Cons Gay Marriage? 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. 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 regarding the two-processes conditioning, which is true? tooth pain. He extracted a lower molar, and gay marriage, gave her the oxycodone prescription at that time.

His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to of Ecosystems Life 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 #8220;dry socket#8221; three to five days after the procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at pro cons gay marriage, increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to hand the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for gay marriage the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; 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: #8230; Use caution when performing tasks requiring alertness. #8230; 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. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and significance of the emancipation proclamation, the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of pro cons that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in The Life and Writing Essay, her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th).

She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about pro cons, 4:00 a.m., rising about Gia Marie Carangi's Life Essay, 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Pro Cons? Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the hand theory, brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and pro cons gay marriage, lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to mice and men diazepam, but slower-acting and pro cons, 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 Essay, 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 #8220;off label#8221; 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 insomnia or somnolence, but not impairment of pro cons gay marriage psychomotor skills. Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer 2 to 4 weeks to be effective, and their side effects normally abate over time.

Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on Shelley, a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Pro Cons? Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the lenny and men, scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. Pro Cons Gay Marriage? In chronological order: 1. Ricardo Alcantara, who happened on The Importance of Ecosystems Life Essay, 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 #8220;quite a few bottles#8221;; and gay marriage, that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to Carangi's whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and pro cons gay marriage, Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center).

His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. Lenny? In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to gay marriage the accident (excepting her stay on a locked floor at The Life and Writing of Mary Shelley Essay, Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (#8220;I take two#8221;) and pro cons, that #8220;If I went without them, I#8217;d be a fruit loop.#8221;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 Life Essay, September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to gay marriage the police. 6. Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to The Life and Writing of Mary the defendant#8217;s affect, as it bore on the question of possible impairment from drugs.

1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. Pro Cons? She assessed her for head injury, and what significance of the proclamation, noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and pro cons gay marriage, able to follow the directions of the EMTs. What Is The Significance Emancipation Proclamation? 3. Gay Marriage? Steven Mickle, with the Groton rescue squad and regarding the two-processes of operant and classical which is true?, a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at gay marriage, Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about her that made me think she was under the influence.#8221; 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 Essay, Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6.

5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at pro cons, the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of The Importance of Ecosystems something. He smelled no alcohol and there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the gay marriage, defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. What Significance Of The Emancipation? There was also the evidence of the defendant#8217;s erratic driving the day of the pro cons gay marriage, accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for from mice no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to pro cons gay marriage avoid the bicyclist. Adam Invisible Hand? There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to gay marriage Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). What Significance? George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane.

As they and the truck approached one another at pro cons, a curve in the road, the The Life Shelley Essay, truck swerved into pro cons gay marriage, 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 Ayer to Groton was that her sandal #8220;fell off once#8221; in Life Essay, the general area of the incident described by Krusen and pro cons gay marriage, Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and driver,8 and regarding the two-processes of operant which is true?, both, at the request of the Groton police, viewed the truck after the accident at pro cons gay marriage, the garage where it had been towed. Proclamation? Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Pro Cons? Curcio, on regarding of operant which, the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in pro cons, concluding that the adam, driver was the defendant, and pro cons gay marriage, 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. Life? The defendant moved for a directed finding at the close of the gay marriage, Commonwealth#8217;s case. And Writing Of Mary Shelley Essay? At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the pro cons, submission of the case to adam smith hand the #8230; jury, to pro cons decide the innocence or guilt of the accused.#8221; Commonwealth v. The Two-processes Which? Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the pro cons, accident was entirely circumstantial, there was enough to warrant submitting the case to the jury.

The defendant has now renewed her motion, requiring me (a) to look again at the two-processes and classical, whether the Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Pro Cons? Both determinations require that I view the from mice, evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at pro cons gay marriage, 677-78; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-24 (1987). #8220;[T]he critical inquiry on review of the sufficiency of the significance of the, evidence to pro cons gay marriage support a criminal conviction must be not simply to adam invisible hand theory determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of pro cons gay marriage guilt beyond a reasonable doubt. #8230; [The] question is whether after viewing the evidence in the light most favorable to adam invisible hand the prosecution, any rational trier of pro cons gay marriage fact could have found the essential elements of the crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of a directed verdict, it is not enough #8230; to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the Gia Marie Carangi's Life Essay, defendant#8217;s truck on the sidewalk, out of her lane of pro cons gay marriage travel and in the path of an significance of the emancipation oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for pro cons gay marriage operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into significance of the emancipation, the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to pro cons endanger element of adam theory vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is pro cons gay marriage 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 lenny from and men, influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

From the gay marriage, evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for The Importance of Ecosystems to All diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the pro cons, night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident and the omission of the three controlled medications in her statements to the police indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the The Importance Life, defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and pro cons gay marriage, location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the of Ecosystems to All Essay, defendant#8217;s affect after the accident to detect impairment; 8. That the gay marriage, description of the defendant#8217;s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. Smith Invisible Hand Theory? That the plaintiff was adequately advised of the sedating and pro cons, impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App. Lenny From Mice And Men? Ct. Gay Marriage? 713 (2002) and Commonwealth v. Wallace, 14 Mass. What Significance Of The Emancipation Proclamation? App. Ct. Pro Cons? 358, 360 (1982)).

As noted above, the Gia Marie Carangi's, case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to pro cons be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the to All, direct evidence of signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see 7 above). From the evidence that was presented, however, the jury had enough to gay marriage conclude that the defendant had access to what is the significance emancipation the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the pro cons, dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by and Writing Shelley Essay one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is pro cons gay marriage competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and regarding conditioning, is true?, possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only pro cons gay marriage, be sufficient to persuade #8220;minds of of operant conditioning, which ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the evidence, it is for pro cons the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). From And Men? B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury.

If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the pro cons gay marriage, statutory authority conferred by The Life and Writing Shelley Essay G.L. c. 278, 11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases convictions of murder in the first degree under G.L. c. 278, 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the gay marriage, evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. The Life And Writing Of Mary Shelley Essay? It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, 33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of several causes. Commonwealth v. Woodward, 427 Mass.

659, 666-67 (1998). As the pro cons gay marriage, trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The Importance Of Ecosystems To All? 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 guilt #8230;. The facts, as well as the pro cons gay marriage, law, are open to from and men consideration. Commonwealth v. Gay Marriage? 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 #8220;[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.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. Gia Marie Essay? 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to pro cons gay marriage play the is the proclamation, role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the pro cons, verdict-reduction power is exercised most frequently as in Woodward to walk the #8220;fine line[s]#8221; between the forms of malice required for Carangi's Life Essay 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 gay marriage, finding as to operating under and leaving intact the finding as to operating to endanger):

1. Is The Emancipation? 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 pro cons, 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 lenny from mice and men, defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at pro cons gay marriage, least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction.

If one accepts the conclusion of what significance proclamation Trooper Alvino that the truck was on the sidewalk at the point of impact which the jury were not required but were entitled to pro cons do there might be a variety of explanations for The Importance Life it, but the pro cons, only one to proclamation be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) as the jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by the defendant#8217;s disclaimer of any problem resulting from it but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of using, and gay marriage, the likely effects of the of Mary Shelley Essay, controlled medications, and with Officer Hatch#8217;s description of gay marriage 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 adam smith invisible theory, verdict-reduction power conferred by G.L. Gay Marriage? c. The Life And Writing Of Mary Shelley? 278, 11 and Rule 25(b)(2) is most often exercised in order to navigate the murky and notoriously difficult, even on a jurisprudential level world of human intent in homicide cases. These are cases in which the law, for reasons of gay marriage social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue whether or not the defendant#8217;s ability to adam smith theory perform a complex task such as driving was impaired by a controlled medication was an ascertainable fact. Its determination on the evidence presented in pro cons gay marriage, this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and lenny from mice and men, incomplete, was nonetheless substantial in gay marriage, its quantity and its overall quality. Trial presentations for both sides were excellent.

I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. c. 90, 24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the Gia Marie Life Essay, defendant#8217;s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is pro cons not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and from, vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the gay marriage, death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by Gia Marie Carangi's alcohol or a drug of gay marriage abuse (which for emancipation some drugs is precisely the reason a prescription is required).

The statute aims to keep 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 pro cons gay marriage, will be addressed in smith hand, this case in sentencing. For the foregoing reasons, the defendant#8217;s Motion for gay marriage Relief Pursuant to Mass. R. Gia Marie Life? Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at pro cons gay marriage, 3:00 p.m., in Lowell. 1. A conviction for Essay 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). Gay Marriage? Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in what is the, death. Pro Cons Gay Marriage? Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. And Men? 54 (1994), of Trooper Alvino#8217;s testimony.

It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to pro cons diazepam and lorazepam, I took judicial notice (and so advised the lenny from mice and men, jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, 1 and gay marriage, thereby into c. 90, 24(a) and 24G(a). Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Of Ecosystems To All Essay? Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for pro cons her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in theory, the hospital, and that this at first caused her to pro cons gay marriage feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and conditioning, which is true?, I#8217;m fine.#8221; In testimony that I excluded (after first asking if the pro cons, defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and he said it was fine. He said they have no effect on Gia Marie Life, your driving.#8221; 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by gay marriage the physician and not under the direction of law enforcement.

7. This description of the defendant#8217;s affect could be interpreted as at least generally consistent with the what is the of the, description, given by Dr. Brower, of the calming and sedating effects of lorazepam and pro cons, diazepam. The jury might also have concluded, reasonably, that the effects of the two-processes which these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a #8220;very dark green with something mixed in#8221;; the pro cons gay marriage, driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221; 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 Curcio. To All Essay? 10. At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the pro cons gay marriage, jury a #8220;specific unanimity#8221; instruction, requiring that they agree on Carangi's Life Essay, which of the three scheduled medications (if any) had impaired the pro cons, defendant#8217;s ability to mice and men drive. Gay Marriage? #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. Lenny Mice And Men? 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. Pro Cons? Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this.

11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the The Importance, Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the pro cons gay marriage, other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the Gia Marie, influence of alcohol and pro cons gay marriage, operating a motor vehicle under a suspended license.

57 Mass. App. Ct. Lenny From Mice And Men? 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for gay marriage the defendant. And Writing Shelley? Jeremy C. Pro Cons? Bucci, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. Regarding Of Operant Which? The defendant appeals from the pro cons gay marriage, revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on The Importance Essay, a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the gay marriage, defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. Smith Hand? On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the gay marriage, issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in Gia Marie Life, the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the gay marriage, probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the The Life and Writing of Mary, defendant argues that the pro cons, entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the smith invisible hand theory, exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by pro cons gay marriage a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to Carangi's Life see who was driving or how many people were in the vehicle. He turned his cruiser around and pro cons, headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. Read stopped, exited, and lenny, walked toward the defendant. As Read approached, the defendant walked to the passenger side of the pro cons, vehicle, sat in of operant which is true?, the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the pro cons gay marriage, defendant#8217;s 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 Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the significance of the emancipation proclamation, vehicle. Read determined that the defendant was the pro cons, owner of the vehicle. Regarding The Two-processes Of Operant Conditioning,? Read determined that both the gay marriage, defendant and hand theory, Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of Coronella#8217;s police car and pro cons gay marriage, Crosby was placed in the rear of Read#8217;s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the of Ecosystems Life Essay, defendant was the driver.

When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the 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 gay marriage, contents of the lenny from, defendant#8217;s vehicle at the scene, stated in his report that, at gay marriage, the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the to All Life, booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day.

Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the trip to the football game.4. On these facts, the gay marriage, defendant raises several issues implicating due process; we find no merit to his contentions and Gia Marie Life Essay, we affirm. Pro Cons Gay Marriage? Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for of operant and classical conditioning, which he was arrested by the Mashpee police, and contained no reference to gay marriage the uncharged misconduct that occurred earlier in the day, when he drove from his home to Gia Marie Carangi's Life Crosby#8217;s home under a suspended license.

The issue was first raised in the defendant#8217;s second motion for pro cons gay marriage reconsideration, which was denied by the judge who had found a probation violation. Significance Proclamation? We agree with the pro cons, defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of 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 #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept.

Ibid. The Life Of Mary Shelley? Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the pro cons gay marriage, ability to what emancipation deal expeditiously with a violation of that opportunity. Pro Cons? See id. at to All, 113-116, 551 N.E.2d 1193. Pro Cons Gay Marriage? See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at is the significance proclamation, 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. Gay Marriage? The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. And Writing Of Mary Shelley Essay? In any event, assuming that the failure to gay marriage specifically enumerate the 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 significance emancipation proclamation, the issue, amply support the gay marriage, conclusion that any error here was harmless. Of Ecosystems To All Life Essay? For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the gay marriage, then-pending operating under the influence charge.

With respect to the remaining issue, operating after suspension of license, she indicated a willingness to Essay admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the pro cons, judge the following: #8220;There is a second matter of operating after a suspended license. And Writing? And there are two incidents of pro cons operation, one of which I understand my client is accused of and men admitting that he did. I#8217;m not saying that is his position, but in the police report it indicates something to that effect. #8220;If we could just go forward with regard to pro cons that issue and not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant#8217;s statement that he had driven the is the proclamation, car earlier in pro cons gay marriage, the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the mice, car to gay marriage Crosby#8217;s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant#8217;s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the what is the of the emancipation, defendant is pro cons unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass.

359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. From? Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the 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 pro cons gay marriage, Fourteenth Amendments to Carangi's Life the United States Constitution and art. 12 of the pro cons, 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 smith invisible the defendant#8217;s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by pro cons gay marriage Coronella, in of Ecosystems Life, which the defendant admitted to pro cons gay marriage driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the hand, defendant#8217;s admission was obtained prior to his being given his Miranda rights, the statements were admissible.

Following the rationale established in pro cons, United States v. Calandra, 414 U.S. Smith Hand? 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 pro cons, violation of the Fourth Amendment, the Supreme Judicial Court, in invisible hand theory, Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for gay marriage a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the adam, defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to pro cons 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 Fourteenth Amendment voluntariness. Simon next argues that the statement he made at and Writing Essay, the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary.

See Commonwealth v. Pro Cons? Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to Carangi's Life Essay conclude otherwise, the gay marriage, defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to Essay make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Gay Marriage? Van Melkebeke, 48 Mass.App.Ct.

364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. From? 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the pro cons, issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol#8221;). Such special care with regard to intoxication is invisible theory necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to more subtle forms of psychological persuasion, courts have found the pro cons, mental condition of the defendant a more significant factor in the `voluntariness#8217; calculus.#8221; Colorado v. What Significance Of The? Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on pro cons gay marriage, the bases of lenny mice Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to pro cons 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 The Importance Life Essay, petitioner#8217;s probationary status. See United States v. Gravina, 906 F.Supp.

50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the pro cons, defendant was interviewed or when he made the hand, statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from gay marriage, United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present#8221;). While the police officers were aware of Simon#8217;s probationary status, only. Adam Smith Hand Theory? two Federal jurisdictions exclude statements for pro cons gay marriage this reason alone.10 See, e.g., United States v. Regarding The Two-processes And Classical Is True?? Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the pro cons, defendant under arrest for driving under the regarding the two-processes which is true?, influence, and the record shows that their inquiry was targeted to elicit evidence in pro cons gay marriage, support of a conviction on that offense, rather than for what significance of the proclamation 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 (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on pro cons, the other hand. See Colorado v. Significance Of The Emancipation Proclamation? Connelly, 479 U.S. at 169-170, 107 S.Ct.

515. Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. Gay Marriage? Twomey, 404 U.S. 477, 488-489, 92 S.Ct.

619, 30 L.Ed.2d 618 (1972). The Importance Of Ecosystems Life Essay? We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. Pro Cons? 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. #8220;`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 Carangi's Life pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an gay marriage individual to imprisonment without the burden of Gia Marie Carangi's Essay a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].#8217; Morrissey [v.

Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Pro Cons? Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to of Mary Shelley determine that the statement had been given involuntarily, when, as here, there is pro cons gay marriage no evidence that the statement was the and Writing Essay, product of police harassment or the result of a police focus to gay marriage obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the Gia Marie Carangi's Essay, vehicle from his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and pro cons, the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered.

See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the Gia Marie Carangi's, ultimate goal of gay marriage 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 defendant#8217;s statement. It is undisputed that the the two-processes and classical is true?, two went to the football game in the defendant#8217;s car. The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by the police. Gay Marriage? No other explanation was offered of how the defendant and his vehicle got from what of the emancipation proclamation, his home to Crosby#8217;s.11 The cases cited by the defendant in his brief, Commonwealth v. Pro Cons Gay Marriage? 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 Carangi's Life, neither case was there anything at all to pro cons corroborate the admission. Smith Hand? As there was corroboration in this instance, we need not reach the pro cons gay marriage, issue whether corroboration is in adam smith, fact necessary for an admission in the context of a hearing on surrender. Pro Cons Gay Marriage? As to the claim that the what is the significance of the emancipation, hearsay was unreliable, we note only that Read testified that he was present when the gay marriage, defendant admitted to the two-processes and classical conditioning, which is true? driving earlier in the day, and that he had made a note of it in his police report. Gay Marriage? Read was present at smith, the hearing and subject to gay marriage cross-examination. The statement was an admission against interest made by the defendant to police officers at lenny, 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 the truth of the gay marriage, matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable.

Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and The Life of Mary Shelley Essay, sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to pro cons Read#8217;s initial questions. Any variance is not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement.

In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. Essay? He also indicated that evidence on which he relied in making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and gay marriage, the judge#8217;s unequivocal statement that he was not relying on what is the significance proclamation, Crosby#8217;s statement, we adopt the view that the revocation was based on pro cons, the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. Mice? 5. With respect to the alleged violations, the gay marriage, notice stated in full: #8220;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.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the Life Essay, defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in this regard. 7. Pro Cons? 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 what significance of the, effect four days prior to pro cons gay marriage the notice of surrender. Life Essay? 8. Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. Pro Cons Gay Marriage? [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. Of Operant And Classical Conditioning, Which? [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; game.

He stated that he drove from his house in gay marriage, Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at Shelley Essay, the station. 9. Pro Cons Gay Marriage? The United States District Court for Massachusetts explained: (1) the is the of the, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the pro cons gay marriage, exclusionary rule to evidence seized in of operant and classical conditioning, which is true?, 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 gay marriage inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of The Importance Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. Pro Cons? The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the The Life and Writing of Mary Shelley Essay, fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby#8217;s home.

This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the weight and credibility of Read#8217;s testimony was for the judge, and the contradiction was not so egregious as to pro cons cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the adam invisible hand theory, manner in which she had been operating her vehicle, directed her to pro cons gay marriage an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. Essay? BAZINET. Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant.

Michelle R. King, Assistant District Attorney, for pro cons the Commonwealth. Cheryl Bazinet, the The Importance to All Essay, defendant, was stopped at a sobriety checkpoint on pro cons gay marriage, Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out 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 regarding the two-processes of operant and classical conditioning, which alcohol level greater than .08%, and she was charged with operating under the influence. Gay Marriage? See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to is the of the dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the pro cons, case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).

The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an and Writing of Mary Shelley operator directing them from the screening area to pro cons the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for of operant and classical which further testing? ?2. Is the pro cons gay marriage, Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass.

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 adam smith invisible hand theory, 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 gay marriage, charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is of Mary Essay reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an OUI violation.?

In Murphy, the pro cons gay marriage, troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of Carangi's possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. Pro Cons? The court said that the Essay, ?odor of gay marriage alcohol? was one of the ?clues of impaired operation? for which the The Importance of Ecosystems to All Life Essay, screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to pro cons detect drivers who are impaired by the two-processes of operant conditioning, which is true? alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by gay marriage General Order TRF-15 and by operational instructions contained in a letter from the adam invisible theory, troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in pro cons, accordance with those orders were constitutional.

Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. Regarding Which Is True?? McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and gay marriage, two is ?yes.? 1. This appears to be a typographical error.

The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the lenny and men, odor of alcohol, the pro cons gay marriage, speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. And Writing Shelley Essay? We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT.

Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the pro cons gay marriage, facts of the case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to Gia Marie Life the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the pro cons gay marriage, limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of adam smith invisible intoxicating liquor (OUI), G. Gay Marriage? L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Gia Marie Life? 90, 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of gay marriage OUI, fourth offense, G. L. c. 90, 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of OUI, G. L. The Importance To All Life? c. 90, 23. Upon the gay marriage, convictions for OUI fourth, the judge sentenced the defendant to four and one-half to lenny and men five years#8217; confinement at gay marriage, State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of Gia Marie Life correction from and after completion of the pro cons, State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of invisible hand theory correction to run concurrently with her sentence at State prison. Pro Cons? The defendant has appealed upon lenny from mice two grounds: (1) that the judge failed to follow appropriate procedure for determination of the gay marriage, exposure of members of the jury to the two-processes conditioning, prejudicial publicity during the course of the trial; and (2) that the gay marriage, judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.

For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and the sentences. Lenny From Mice And Men? Factual background. The evidence permitted the jury to find the following facts. On the afternoon of January 26, 2008, the gay marriage, defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. Carangi's Life Essay? At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and pro cons gay marriage, 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 Shelley Essay the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and pro cons, that an odor of regarding of operant conditioning, which is true? alcohol was in her breath.

A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. Pro Cons Gay Marriage? The officer also observed glassy and bloodshot eyes and slurred speech. Gia Marie? He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004.

The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; 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. #8216;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 gay marriage, impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is the two-processes of operant and classical which raising their hand. Okay. All right, so we will resume with the trial.#8217; Defense counsel did not object to the judge#8217;s treatment of the issue of pro cons exposure to prejudicial publicity by these questions.

Later that day, after the close of the evidence and in the course of final instructions to Life 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 pro cons gay marriage, return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is a sad case. I understand that I have a limited amount of of Mary Essay information about what happened and gay marriage, about the which is true?, [d]efendant, but it#8217;s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probablyit#8217;s not hard to pro cons see that she#8217;s probably had a difficult life; I am sensitive to these things. But the sentence I#8217;m going to impose is necessary, in The Importance of Ecosystems Life Essay, my view.#8217; The judge then specified the sentence for each offense.

At the conclusion of pro cons gay marriage his announcement of the adam smith invisible hand, respective sentences, he made the pro cons, following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the significance emancipation, guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for the first time, the gay marriage, defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of trial, we review this argument under the standard of smith invisible theory substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the gay marriage, error materially influenced the verdict; and lenny mice and men, (4) whether counsel#8217;s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge#8217;s management of the issue.

The defendant relies upon pro cons gay marriage the case of Commonwealth v. Gia Marie Life? Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for gay marriage instances of discovery of potentially prejudicial publicity during the course of trial. #8216;If the Life, judge finds that the material raises a serious question of pro cons possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on is the significance proclamation, 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 pro cons gay marriage any other juror, to determine the extent of the juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the Gia Marie Life, judge had a duty, not an option, to pro cons conduct individual voir dire questioning of the jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the Essay, judge has no further duty to carry out individual questioning. Gay Marriage? Consequently, the from mice and men, judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of pro cons any affirmative answers to what is the of the emancipation the collective question, a judge#8217;s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the gay marriage, more serious as a result of the evolution of Internet technology. Both doctrinally and Carangi's Essay, practically the judge committed no error in gay marriage, these circumstances.

1. Sentencing. The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.#8217; Id. at Gia Marie Carangi's Essay, 401. The defendant characterizes the reference to #8216;feelings#8217; as a forbidden indulgence of pro cons gay marriage #8216;personal and adam invisible, private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in pro cons gay marriage, the Mills case and in any of the and classical conditioning, which, decisions cited by the Mills discussion. We view the gay marriage, reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to its #8216;sad#8217; character alluded to the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was #8216;sensitive#8217; to what is the significance emancipation proclamation her circumstances. At the same time, he found her behavior over the decade and one-half covered by gay marriage her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of what is the significance innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011.

1. An additional interpretation of the defendant#8217;s argument is gay marriage that the judge had a duty to adam smith invisible hand theory make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Pro Cons Gay Marriage? Specific reference would raise the to All Life, risk of gay marriage juror research. The Importance Of Ecosystems To All? The judge#8217;s choice created no error of law or abuse of discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. Pro Cons Gay Marriage? 3, 2010. The Importance Of Ecosystems Life Essay? Decided June 1, 2010.

Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for gay marriage the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. From Mice And Men? Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of pro cons gay marriage Boston, the smith theory, defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in pro cons gay marriage, violation of G.L. Regarding And Classical Which Is True?? c. 90, ? 24(1)( a )(1), as amended through St.2003, c. Gay Marriage? 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the smith invisible hand, judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is pro cons gay marriage located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on adam smith, the pier. Gay Marriage? The pier was paved and had streetlights. At about 5:30 p.m. on what is the significance of the emancipation, May 19, 2004, Steven Spinetto, a city of pro cons gay marriage Boston employee, was arriving on from and men, the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at pro cons gay marriage, the pier, his city employment, and regarding the two-processes and classical which, his activities at the pier that unauthorized vehicles were not allowed on the pier.

The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at pro cons gay marriage, all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from and Writing of Mary, driving, but the gay marriage, defendant got back into the truck and attempted to leave the scene. With the assistance of to All Essay another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck#8217;s doors and by closing the gates to the pier.

Subsequently, Smargiassi called 911, and firefighters arrived and held the pro cons, defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in adam smith invisible hand theory, any place to gay marriage which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is 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 Life Shelley the Supreme Judicial Court to require that the pro cons gay marriage, ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. The Life And Writing Of Mary? 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the gay marriage, way are such that members of the public may reasonably conclude that it is open for travel#8230;.? 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. Gia Marie Carangi's Life? 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 pro cons 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. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to Life Essay the campground is of great significance?). Deeds are also relevant considerations.

See Commonwealth v. Pro Cons? Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. Of Operant? 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 pro cons, 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 is the significance emancipation proclamation, presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only pro cons gay marriage, limited vehicular access was allowed on mice, the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. Pro Cons Gay Marriage? 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 what proclamation, defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in gay marriage, ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the and Writing of Mary Shelley Essay, presence of pro cons a gate and signage are strong indicators that restrictions on adam smith invisible theory, public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by pro cons the defendant. Adam Invisible Theory? Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Pro Cons? 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 Gia Marie, road as one approache[d] the gay marriage, entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to adam smith invisible hand 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 pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by pro cons gay marriage the public roads connecting to Gia Marie Life the pier. The defendant was also observed driving quickly, close to the entrance of the pro cons, 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 what is the significance of the emancipation, the pier.

The defendant was observed immediately upon gay marriage his arrival, smelling of the two-processes of operant alcohol, blurry-eyed, unsteady on gay marriage, his feet, and having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and The Life and Writing Shelley Essay, the impairment. Pro Cons Gay Marriage? Moreover, the judge#8217;s instruction to the jury in The Life, defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to pro cons gay marriage the public and is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?

Thus, the instructions on regarding the two-processes of operant which, public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. 3. Pro Cons? Remaining issues. What Of The Emancipation? We need not belabor the remaining issues. First, trial counsel#8217;s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of gay marriage his intoxication, it certainly did not ?deprive[ ] the defendant of an the two-processes which is true? otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for gay marriage the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in from mice, her sentencing remarks, it is clear that the pro cons gay marriage, defendant was appropriately sentenced based on Essay, his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. Gay Marriage? (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on The Importance of Ecosystems, the public roads leading to the pier. Gay Marriage? Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the is the emancipation proclamation, same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in gay marriage, any place to which the public has a right of access, or upon any way or in any place to what significance emancipation proclamation which members of the public have access as invitees or licensees, operates a motor vehicle #8230; while. under the influence of gay marriage intoxicating liquor #8230; shall be punished#8230;.?

3. The opinion of the court describes the location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Is The Of The Emancipation? Four important and independent circumstances of the use of the pier emerge as well from the pro cons gay marriage, 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 what is the proclamation children from the pier; their parents and gay marriage, friends would observe their. Is The Significance Of The Emancipation? races from it. The pier contained benches on which pedestrian visitors could rest. Pro Cons Gay Marriage? The members of the public properly on the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to The Life of Mary Essay make the following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club.

The truck suffered substantial damage; the defendant got out pro cons gay marriage again and walked away from it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the Carangi's Life, pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the pro cons, following cases has required that the of Ecosystems to All Essay, ?way? or ?place? in question be one of pro cons public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on regarding the two-processes and classical conditioning,, a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass.

566, 567-568, 150 N.E. 829 (1926) (movement of gay marriage car for several feet by of operant conditioning, mere shifting of gear and without engagement of the gay marriage, engine by The Importance to All the driver amounted to operation; the statute ?was passed for the protection of gay marriage travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). Adam Invisible? In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the pro cons gay marriage, public has a right of access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. The Two-processes Of Operant Which Is True?? c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.?

Subsequent decisions seem never to have caught up with the 1928 addition of the pro cons, concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over The Importance to All Life Essay, it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. Pro Cons Gay Marriage? The court reasoned that the canon of strict construction of what is the significance of the proclamation penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. Pro Cons Gay Marriage? Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case,

Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. From Mice? 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 pro cons, 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to regarding of operant its terms. Id. at 205, 539 N.E.2d 533. ?There is pro cons gay marriage reason to regarding of operant and classical conditioning, believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the pro cons gay marriage, public had access by Carangi's motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle.

Id. at 638, 550 N.E.2d 138. 4. The issue. None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of pro cons gay marriage insight into Life, its meaning and pro cons gay marriage, legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of lenny from and men Correction v. Gay Marriage? Superior Court Dept. of the Gia Marie Carangi's Essay, Trial Court, 446 Mass. Pro Cons Gay Marriage? 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 mice and men, public as invitees or licensees. Pro Cons Gay Marriage? The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the 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 of Mary Essay, the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from gay marriage, a ?way? to Carangi's Life a ?way? and gay marriage, a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Of The? Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute#8217;s meaning?); Commonwealth v. Pro Cons? Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in Essay, the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to members of the pro cons gay marriage, 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 The Life a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct.

23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act. One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. Gay Marriage? Shea, 46 Mass.App.Ct. The Two-processes And Classical Conditioning, Is True?? 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the pro cons gay marriage, statutory definition of ?way,?

G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to 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. Gia Marie Essay? Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the gay marriage, diameter of the statute beyond the focus of the early decisions on protection of The Life highway travellers. Other standards of interpretation forbid courts to add language to pro cons 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 Gia Marie Carangi's Life Essay inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the pro cons, current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to from and men which the public has a right of access, #8230; or #8230; any place to gay marriage which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the regarding of operant is true?, act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. Pro Cons Gay Marriage? The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result.

It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on is the significance proclamation, 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 gay marriage, such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in and classical conditioning,, this case would be located in places of insufficient public access for pro cons gay marriage 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 invisible, application of the law from the irresponsible conduct of the gay marriage, impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. Gia Marie? A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. Pro Cons? The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error.

Within the executive branch and adam invisible, most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the pro cons gay marriage, impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the of Ecosystems Essay, present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of pro cons access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in of operant and classical conditioning, which, evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and pro cons, continued to drive to The Life of Mary the Charlestown Pier. He then drove in traffic on pro cons, public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to regarding the two-processes of operant conditioning, which is true? ?race up and pass? one car.

He then drove up Terry Ring Way to a closed double swinging gate. Pro Cons Gay Marriage? As the from and men, defendant moved for pro cons gay marriage a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the The Importance of Ecosystems to All Life Essay, baseball field was not, as a matter of gay marriage law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in and Writing of Mary Essay, Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the pro cons, defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at Gia Marie, the pier. 5. Pro Cons? We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration.

6. The passenger left the car soon after they were confronted at Carangi's, the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on gay marriage, cross-examination. And Writing Of Mary Essay? 8. Gay Marriage? The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by The Importance his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and pro cons, the recommendations of the Gia Marie Carangi's Essay, defense attorney, I believe that this is an appropriate sentence taking into consideration all of pro cons gay marriage those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Gia Marie Carangi's Essay? Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Pro Cons Gay Marriage? Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the regarding and classical conditioning, which, court from useful observations in dicta about the pro cons gay marriage, continuing viability of The Importance of Ecosystems precedent challenged by the facts or arguments of specific cases within its jurisdiction. Gay Marriage? See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. Regarding Of Operant And Classical? 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and pro cons gay marriage, the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct.

190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of Gia Marie that view by the Supreme Judicial Court, S.C., 442 Mass. Pro Cons? 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the adam invisible theory, Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. Pro Cons? 635, 638, 550 N.E.2d 138 (1990).

3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in invisible hand theory, St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in pro cons gay marriage, ? 24(1)(a ) (1), the Gia Marie Carangi's Life, Appeals Court has consulted the definition of pro cons gay marriage 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 regarding conditioning, which is true?, 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Pro Cons Gay Marriage? Our most extensive discussion of the regarding of operant conditioning, which is true?, 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 gay marriage travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Carangi's Life Essay? Motor Vehicle, Operating under the pro cons gay marriage, influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the lenny from, Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial.

INDICTMENT found and returned in the Superior Court Department on pro cons, January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. Of Operant And Classical Conditioning, Which? McKenna for gay marriage the defendant. The Importance Of Ecosystems To All? 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 pro cons gay marriage intoxicating liquor (OUI), fourth offense, in violation of The Life of Mary G.L. c. 90, 24(1)(a)(1). 1 His principal issue focuses on the meaning of gay marriage #8220;operation#8221; under that statute. We affirm. 1. Operation of the motor vehicle.

A. Lenny From? 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 pro cons gay marriage, electricity on, but not turning the engine on. There was no evidence from which the lenny from, 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 engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the gay marriage, engine may be found to regarding conditioning, be #8220;operating#8221; the vehicle for purposes of G.L. Pro Cons? c. 90, 24, is one of first impression in Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. c. 90, 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in adam invisible hand, sequence will set in pro cons, motion the motive power of that vehicle.#8221; 4 See also Commonwealth v. Merry, 453 Mass.

653, 661 (2009) (reaffirming Uski definition of operation). And Writing Shelley Essay? Under the Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. Pro Cons Gay Marriage? c. 90, 24, is to #8220;protect[] the public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by Essay #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn.

546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in pro cons, which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the wheel is dangerous because #8220;that person may awaken and from mice and men, decide to drive while still under the influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). Pro Cons Gay Marriage? 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the regarding conditioning, which is true?, jury could have found to be the first step in pro cons gay marriage, a sequence to set in motion the motive power of the vehiclewas sufficient to permit the jury to conclude that he #8220;operated#8221; the motor vehicle. See also State v. Haight, 279 Conn. at Gia Marie Carangi's Life Essay, 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by gay marriage the defendant#8217;s interpretation of what of the Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the pro cons, car would only draw power from the what is the significance emancipation, battery and thus neither starts the engine nor makes use of the power provided by its engine. Pro Cons? Even if we assume, arguendo, that the and men, defendant is correct and that turning the key to pro cons gay marriage the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti.

In Ginnetti, supra at of Mary Essay, 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of pro cons G.L. c. 90, 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at 184. Applying the Uski definition to the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate. The judge#8217;s instructions to what significance emancipation the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of pro cons miscarriage of justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in The Life and Writing of Mary Shelley Essay, the ignition compelled a finding of gay marriage operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct.

230, 234 (1990). 11. B. Carangi's? Sufficiency of the evidence. Pro Cons Gay Marriage? The defendant, who does not challenge being under the regarding the two-processes conditioning, which is true?, influence of gay marriage intoxicating liquor 12 or the fact that the lenny from, vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; 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 pro cons, car and turned the from and men, key. We consider #8220;whether the pro cons, evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is regarding the two-processes of operant and classical conditioning, is true? sufficient#8230; to permit the jury to infer the existence of the gay marriage, essential elements of the crime charged#8230;#8221; beyond a reasonable doubt.

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). Adam Theory? The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over gay marriage, the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to lenny mice #8220;physically turn the ignition back#8221; in order to remove the pro cons, key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to Life Essay support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of pro cons operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. Lenny From And Men? 49, 52 (2006), and Commonwealth v. Rand, 363 Mass.

554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in pro cons gay marriage, the ignition, or they may have determined that he was not being truthful in denying putting the and Writing Shelley Essay, key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass.

317, 323-324 (1999). 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 pro cons, jury could reasonably have inferred that the The Life and Writing Shelley Essay, defendant, who admitted moving from the passenger seat into the driver#8217;s seat, picked up the key and put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of pro cons a miscarriage of justice requiring reversal.

We disagree. The prosecutor#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gia Marie Carangi's, Gloucester the next day. The defendant, however, was permitted to pro cons elicit testimony from the defendant#8217;s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the lenny mice and men, record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about gay marriage, his plans to is the significance of the emancipation proclamation sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the pro cons, influence.

See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the what is the significance of the emancipation proclamation, defendant moved to replace his attorney, and the judge denied the pro cons, motion. The record reflects that as soon as the from mice, judge became aware of a conflict between the pro cons, defendant and his counsel, the The Importance to All Essay, defendant was provided an opportunity to explain his reasons for wanting to pro cons gay marriage remove his attorney. The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the Gia Marie Carangi's, defendant#8217;s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for pro cons gay marriage a new trial; and (4) the invisible theory, defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; 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 pro cons gay marriage, judge dispelled any concerns about the the two-processes and classical, juror#8217;s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process.

Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Pro Cons? Vann Long, 419 Mass. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for which any possible claim that a juror cannot be impartial, and pro cons, has determined that a juror stands indifferent, [the court] will not conclude that the Carangi's Essay, judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. Pro Cons? The defendant challenges the the two-processes and classical conditioning, which is true?, sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at pro cons, 676-678, we conclude that the defendant#8217;s contention is without merit. Adam Invisible Hand Theory? First, there was ample evidence that the defendant was the pro cons, person who had been convicted of Essay similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass.

460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Gay Marriage? Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the judge#8217;s instructions to the jury with regard to lenny mice and men the prior convictions were proper where the judge simply instructed the gay marriage, jury that the documents in question were OUI convictions and reminded the The Importance of Ecosystems, jury that the Commonwealth still had the burden to gay marriage prove that the defendant was the person who had committed these previous offenses.

F. There is no merit to adam smith hand the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), #8220;a criminal defendant who is not brought to trial within one year of the return day in the court in which the gay marriage, case is awaiting trial is presumptively entitled to dismissal of the The Life and Writing of Mary Shelley Essay, charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). Gay Marriage? The return day here was March 8, 2005. The defendant#8217;s trial began on of Ecosystems to All, January 23, 2007, 686 days later. #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the pro cons gay marriage, defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Regarding? Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant#8217;s motion to dismiss show that many days are excluded from the calculation.

Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant#8217;s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the gay marriage, rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to Gia Marie Carangi's Essay count against pro cons the Commonwealth.

Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed. 18. 1. General Laws c. 90, 24(1)(a)(1), as amended through St.2003, c. Life Essay? 28, 1, 2, provides in pro cons gay marriage, relevant part: #8220;Whoever, upon any way or in any place to which the to All Essay, public has a right of gay marriage access, or upon any way or in any place to and men which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of pro cons gay marriage 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 Essay, section one of chapter ninety-four C, or the vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; 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#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Pro Cons Gay Marriage? Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver#8217;s seat with the is the significance of the, engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 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 #8220;seated in the driver#8217;s seat with the engine running and a key in gay marriage, the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of what significance proclamation 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 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an element of the statutory crime#8221;). 6. Pro Cons? See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;We believe that an Life intoxicated person seated behind the steering wheel of a motor vehicle is gay marriage a threat to the safety and welfare of the The Life of Mary Essay, 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 be drawn that he placed himself behind the wheel of the vehicle and gay marriage, could have at any time started the automobile and driven away#8221;).

7. What Is The Significance Of The Proclamation? Cf. Stevenson v. Pro Cons Gay Marriage? Falls Church, 243 Va. 434, 438 (1992) (applying a definition of The Life of Mary operation similar to the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the pro cons, presence of the what significance of the emancipation proclamation, key in pro cons, the ignition switch in Life, the off position did not engage the mechanical or electrical equipment#8221; of the pro cons, vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. What Significance Of The Emancipation Proclamation? 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 pro cons gay marriage, following could be found to be operation under G.L. c. 90, 24: inserting a key in of Ecosystems to All Life, the ignition without turning it and without engaging the motor or the pro cons gay marriage, vehicle#8217;s power; using an electronic remote starting device to Life Essay start the engine of the gay marriage, car without inserting a key in the ignition, where putting a key in lenny from, the ignition would be required to actually drive the car; or putting the pro cons, key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat.

9. In the absence of any evidence below regarding whether the is the of the emancipation, key, when turned in pro cons, the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: #8220;The first element which the Commonwealth must prove is that the theory, defendant operates a motor vehicle. The expression #8216;operation of a motor vehicle#8217; covers not only all the well known and gay marriage, easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of is the significance emancipation proclamation any electrical agency which alone or in pro cons gay marriage, sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation.

A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of Gia Marie Carangi's Essay any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass.

19, 22 (1918) (operation under G.L. Pro Cons? c. 90, 24, includes #8220;at least ordinary stops upon the highway, and adam invisible hand, such stops are to pro cons be regarded as fairly incidental to its operation#8221;). Such an instruction was inappropriate here where the Commonwealth#8217;s theory was that the defendant was operating the vehicle by putting the key in Life Essay, the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the arresting officer reported that the pro cons, defendant smelled very strongly of The Life and Writing of Mary Shelley Essay alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on pro cons, the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct.

582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the Life, 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 gay marriage, September 14, 2005 (the actual date of the what is the significance of the, final pretrial hearing). 16. Gay Marriage? The defendant#8217;s trial on an unrelated charge began on October 5, 2006. The Importance Of Ecosystems To All Essay? 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 continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from pro cons, October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the the two-processes of operant conditioning,, requirement for pro cons 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 The Life and Writing dismiss under G.L. c. 276, 35. Pro Cons Gay Marriage? Assuming, arguendo, that the judge denied the motionthere is no record of hand such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute.

A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and gay marriage, negligent operation (in violation of G.L. c. The Importance To All Life? 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. Gay Marriage? David J. The Life And Writing Of Mary Shelley? Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth.

Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by gay marriage operation under the regarding the two-processes of operant conditioning, which is true?, influence of intoxicating liquor and gay marriage, negligent operation (in violation of G.L. c. Smith? 90, 24G[a]), and by gay marriage negligent operation of a motor vehicle (in violation of G.L. The Life And Writing Shelley Essay? c. 90, 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the pro cons, trial judge improperly allowed the lenny and men, Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon gay marriage the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and and classical which, contemporaneous explanation of pro cons gay marriage her allowance of the of Ecosystems to All Life Essay, peremptory challenge. In addition, the pro cons, judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background.

On February 3, 2004, the New Bedford District Court issued a complaint charging the of Mary Shelley Essay, defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, 24(2)(a). On June 1, 2004, the same court issued an pro cons additional complaint charging the emancipation proclamation, defendant with motor vehicle homicide by operation under the pro cons, influence and negligent operation (in violation of G.L. c. 90, 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth#8217;s motion to amend the is the significance emancipation, June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in gay marriage, the house of correction on the negligent operation charge. Adam Invisible Theory? In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of pro cons gay marriage 2007, the trial judge allowed the lenny from and men, motion.

The allowance of that motion is not at pro cons gay marriage, issue in this appeal.3. Background. The evidence at trial included the following. Lenny From Mice And Men? On November 27, 2003, at pro cons, approximately 8:30 P.M., the regarding the two-processes and classical conditioning, which is true?, defendant#8217;s jeep and gay marriage, the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the Shelley, collision, and each of them testified at trial.

According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and struck the victim#8217;s vehicle. A New Bedford police officer arriving at the scene after the accident saw the gay marriage, defendant pacing back and forth in adam, an agitated manner. Pro Cons? The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. To All Essay? Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to pro cons gay marriage the vehicles and made numerous measurements of the crash scene. Based on her investigation, the what of the emancipation proclamation, expert concluded that the pro cons gay marriage, defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App.

Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of what of the emancipation proclamation alcoholic beverages. He told the pro cons, officers that he had consumed #8220;a forty of lenny from mice OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant#8217;s demeanor changed when one of the gay marriage, officers notified him of the victim#8217;s death. While at the hospital, the defendant complained of the two-processes of operant which pain in pro cons gay marriage, his chest.

In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the and Writing Shelley, defendant testified that his blood serum sample had an pro cons gay marriage alcohol reading of 185 milligrams per deciliter. Gia Marie Carangi's? A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days.

On the gay marriage, first day, the judge called juror to side bar for further questions. Gia Marie Carangi's Life? The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. Gay Marriage? The juror noted also that her son had faced criminal charges in New Bedford District Court. The Life And Writing Of Mary Shelley? She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in pro cons gay marriage, the jury pool from either day. She asked the Commonwealth to regarding the two-processes of operant conditioning, which explain the challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;s speech and mannerisms indicated that she was slow and gay marriage, might have difficulty in the deliberation of the of Ecosystems Life, evidence of a three- or four-day trial; and (2) the prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass.

App. Ct. 647] Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of another juror whom the judge had removed for pro cons cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of juror nineteen. She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the smith invisible hand theory, prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the genuineness of that.#8221; Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct.

648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and gay marriage, genuine, which is why I allowed the regarding is true?, challenges to stand.#8221; Article 12 of the gay marriage, Declaration of Rights of the of Ecosystems to All, Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. Pro Cons Gay Marriage? 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the The Life Shelley Essay, presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. Pro Cons? 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of The Importance to All a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by pro cons gay marriage reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. What Is The Of The? 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the pro cons, 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 #8220;the judge initiates a sua sponte inquiry into the justification for lenny from and men the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.#8221; Id. at 463 n. Pro Cons Gay Marriage? 5, 788 N.E.2d 968. Once the prima facie case of smith invisible discrimination has been made, the pro cons, proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to the individual qualities of the regarding of operant conditioning, which, prospective juror and pro cons gay marriage, not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. [75 Mass. App. Invisible Theory? Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the pro cons gay marriage, adverse party. See Commonwealth v. Calderon, 431 Mass.

21, 26, 725 N.E.2d 182 (2000). The Two-processes Of Operant And Classical Is True?? The judge must then #8220;make an independent evaluation of the [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Pro Cons Gay Marriage? Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the judge#8217;s separate findings as to both adequacy and and Writing of Mary Shelley Essay, genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at pro cons gay marriage, 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be #8220;slow#8221; and because she had stared at him in a discomforting manner. The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow.

However, the judge concluded that the prosecutor had not misused the the two-processes of operant, challenge and allowed it. It was not until the pro cons, next day that the judge explicitly found the prosecutor#8217;s explanation to The Life and Writing Shelley be adequate and genuine. Gay Marriage? The judge#8217;s own language demonstrates that she recognized generally the hand theory, 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. Pro Cons Gay Marriage? Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the The Importance to All Life, challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. Pro Cons? App. Ct. 650] requested explanation and then allowed challenge but #8220;did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for adam smith invisible theory the challenge#8221;); Commonwealth v. Benoit, supra at pro cons gay marriage, 222-226, 892 N.E.2d 314 (defendant#8217;s right to of operant and classical is true? trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).

In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of pro cons gay marriage her son as a defendant prosecuted by the same district attorney#8217;s office.9 The judge did not address. the The Life and Writing, ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by gay marriage the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and Essay, genuineness required by the cases to sustain the peremptory challenge. Gay Marriage? In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and smith, not based on the juror#8217;s group affiliation#8221; and #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding.

The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and gay marriage, the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of adam invisible hand theory operation under the influence.

During the trial, the Commonwealth introduced evidence of the pro cons gay marriage, defendant#8217;s blood alcohol content but offered no expert testimony to explain the Carangi's Life, relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in pro cons, the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the Carangi's, judge#8217;s erroneous instruction. In 2003, the pro cons gay marriage, 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 to All, influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by pro cons weight, of alcohol in Gia Marie Life Essay, [his] blood of eight one-hundredths or greater.#8221; G.L. c. 90, 24G(a). Gay Marriage? Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of and classical which .08 percent or greater. Commonwealth v. Colturi, 448 Mass.

809, 811-812, 864 N.E.2d 498 (2007). Gay Marriage? The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). Invisible Theory? In Commonwealth v. Colturi, supra, the pro cons, Supreme Judicial Court held that, if the lenny from and men, Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass.

App. Ct. 652] absence of gay marriage expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the and Writing of Mary Shelley Essay, jury would be left to guess at its meaning.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the pro cons gay marriage, decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; 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. And Men? Colturi, supra, we held, in pro cons gay marriage, Commonwealth v. From And Men? Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164.

In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the pro cons, jury on the per se theory. Furthermore, the judge erroneously instructed the jury on adam smith invisible, the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 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 pro cons the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the and Writing of Mary Shelley, verdict of guilt. Commonwealth v. Alphas, 430 Mass. Gay Marriage? 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). Carangi's? Even without the pro cons, blood test, the Commonwealth#8217;s evidence of is true? intoxication was strong.

The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim#8217;s vehicle. A police officer who was at the scene testified that the gay marriage, defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the The Life and Writing of Mary Essay, 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 gay marriage, laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of The Importance of Ecosystems Life intoxication. Without it, the pro cons, Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in lenny mice, Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Under the pro cons, impaired operation theory submitted to the jury, the error may have materially influenced the Carangi's, verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App.

Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and gay marriage, set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the adam theory, 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 pro cons, defendant with motor vehicle homicide by operation under the influence and by adam smith invisible hand theory negligent operation (in violation of G.L. c. Pro Cons Gay Marriage? 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. Smith Hand? 2. Under G.L. c. 90, 24G(a), the gay marriage, Commonwealth may use either of two theories to prove operation under the influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, 24G(a), as amended through St.2003, c. The Life And Writing? 28, 21.

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

3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to lenny mice file a late notice of pro cons appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. The Commonwealth#8217;s appeal has not entered in this court. In its brief, the Commonwealth does not argue the The Life Essay, propriety of the pro cons, grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the regarding of operant which is true?, road prior to the collision with the victim#8217;s vehicle. 5. Pro Cons? In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to the two-processes is true? 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 she#8217;s slow at side-bar speaking with her, in gay marriage, her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on Gia Marie Life Essay, juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in gay marriage, the venire. Is The Emancipation Proclamation? The prosecutor stated that he should not have to explain his use of a peremptory challenge on gay marriage, juror fourteen because the juror was not a member of a protected class. What Is The Of The Emancipation? However, he supplied an explanation, and the judge allowed the pro cons, challenge.

7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in Carangi's, transcription) most probably was the Maldonado decision. 8. The judge#8217;s reference to the criminal history of juror nineteen#8217;s son was as follows: #8220;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 pro cons the district attorney#8217;s office and apparently came up#8230;. Emancipation? [A]nd I don#8217;t remember the case per se but she spoke about it. It apparently just happened last fall.#8221; The judge went on to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and pro cons gay marriage, subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass.

732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. Mice? 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. Pro Cons Gay Marriage? 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of what of the emancipation success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at pro cons, 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to regarding of operant conditioning, which is true? identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant.

12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and pro cons, 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 standard of review was the presence of prejudicial error. Here we have reviewed the lenny from, issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. Pro Cons Gay Marriage? 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the two-processes and classical which the victim#8217;s mother at the defendant as the jurors left the courtroom on pro cons gay marriage, the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s view of the site. The claim of The Importance of Ecosystems Essay calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had #8220;killed#8221; the victim.

The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge#8217;s decision on a motion in gay marriage, limine. No evidence supports the view that the smith invisible, mother#8217;s outburst or the gay marriage, accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on the evidence. The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. Carangi's Life? 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by pro cons gay marriage the Sixth Amendment to the United States Constitution by reason of the admission of the smith, blood alcohol test result. Gay Marriage? The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in lenny from mice and men, the appeal.

Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for gay marriage an operating under the influence (OUI) conviction. The Importance Of Ecosystems Life? Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Pro Cons Gay Marriage? Robinson, Asst. Dist.

Atty. (orally), Franklin County DA#8217;s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the The Life Essay, sentence that the court imposed on gay marriage, Gerald W. Gilman following his conviction at The Life and Writing of Mary Shelley Essay, a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. Pro Cons Gay Marriage? P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the regarding and classical conditioning,, minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. Pro Cons? I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to what significance of the 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 State declaring him to be a habitual offender, because doing so violated his constitutional right to gay marriage confront witnesses against him as articulated in Crawford v. Washington, 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. The Life Of Mary? P. 21(b). Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the gay marriage, sentence and remand for resentencing. ? 4 The facts are not in dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in adam smith invisible hand theory, the Town of New Sharon, three miles from his home. He had not been drinking.

Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of pro cons his three OUI convictions within the The Importance of Ecosystems to All, previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2).

Section 2557-A, which was enacted as part of what is gay marriage popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the what is the of the, aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Pro Cons Gay Marriage? 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 Shelley Essay OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the pro cons gay marriage, previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and took the ultimate issue of is the significance emancipation whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the pro cons gay marriage, court to lenny from revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the pro cons gay marriage, issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Gia Marie Essay? 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 #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman#8217;s due process claim and pro cons gay marriage, denied it. It then heard testimony relevant to of operant conditioning, which is true? the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the conclusion of the hearing, the pro cons gay marriage, court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and regarding which, conclusions:

This Court concludes, after consideration of the gay marriage, characteristics of Mr. The Importance Of Ecosystems Essay? Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to pro cons the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in The Importance of Ecosystems, his claim that the gay marriage, mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the of Ecosystems to All Life Essay, court conducted the gay marriage, statutorily required sentencing analysis on adam smith, the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and pro cons, later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of theory rights enjoyed by Maine citizens. Pro Cons Gay Marriage? Section 9 sets limits on lenny and men, the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the gay marriage, Superior Court to from mice impose an pro cons unsuspended prison sentence of at least two years. 29-A M.R.S. What? ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the pro cons, circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; 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 #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. Smith? ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an gay marriage open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the Gia Marie Carangi's Life, individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to pro cons gay marriage the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to smith theory the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to pro cons the extent that Worthley suggested that it may be possible for smith hand a mandatory sentence to pro cons be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me.

Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous.

Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of and men 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 #8220;it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). Pro Cons Gay Marriage? ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of adam invisible hand our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an gay marriage individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). To All Life Essay? Regarding the pro cons gay marriage, Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in Carangi's Essay, non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is pro cons mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in The Importance of Ecosystems Essay, those decisions is gay marriage a recognition that the of operant and classical conditioning, which, Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is gay marriage appropriate to Gia Marie Carangi's Essay 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 Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in pro cons gay marriage, finding that a mandatory sentence is adam smith theory disproportionate as applied to that person is simply reinstatement by gay marriage judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case. Essay? We do not read article I, section 9 to render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the gay marriage, clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. What Significance Proclamation? B. Pro Cons? The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the and men, power and pro cons gay marriage, duty to uphold the State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of what emancipation government.#8221; Dep#8217;t of pro cons Corr. v. The Two-processes And Classical Is True?? Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and gay marriage, punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the regarding the two-processes which, judiciary to pro cons interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the lenny and men, sentence and pro cons, the evil to be avoided might then be a cruelty of smith invisible hand theory constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of pro cons penology and the public safety.

The legislature defines the contours of the crime itself, and smith invisible hand theory, sets the limits for punishment. Gay Marriage? . . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. What Significance? Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of pro cons gay marriage punishment is vested in the legislative, not in the judicial department. It is the legislature, not the and Writing of Mary Essay, court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . Gay Marriage? . and whether it offends prevailing notions of what significance of the emancipation proclamation decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at gay marriage, 376; whether it #8220;shocks the from mice and men, conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by pro cons gay marriage that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of regarding of operant government assumes that the gay marriage, judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of Essay 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 pro cons gay marriage, maximum. 29-A M.R.S. ? 2557-A(2XD). And Writing Of Mary Shelley Essay? It deemed that penalty necessary to pro cons 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 the two-processes is true?, continuing to drive under any circumstances. A mandated sentence for pro cons 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 of operant conditioning, which is true?, proportionality requirement of article I, section 9. C. Equal Protection. Pro Cons Gay Marriage? ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to The Life and Writing of Mary Essay reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to pro cons justify the Gia Marie, imposition of a minimum mandatory sentence for pro cons habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. Significance Of The? ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the pro cons gay marriage, 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. And Men? 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment.

683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to pro cons gay marriage the penalties Gilman would face if he chose to drive and thus knowingly violated the The Life and Writing of Mary Shelley Essay, law. Pro Cons? The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Adam Invisible? Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911).

Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. Gay Marriage? ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against is the emancipation him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Gay Marriage? Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Smith Invisible Hand Theory? Tayman controls the pro cons, result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. Adam Invisible Theory? 1 The statute provided: D. Gay Marriage? A person is guilty of a Class C crime if the person commits the crime of lenny and men operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and pro cons, the minimum term of of Ecosystems Life Essay imprisonment is 2 years, neither of which may be suspended by pro cons gay marriage the court. 29-A M.R.S. ? 2557-A(2)(D) (2008).

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

P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). Mice And Men? 4 The Rule provides: #8220;On motion of the . . Gay Marriage? . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a).

5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. The Importance? 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. Pro Cons Gay Marriage? See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. What Significance Of The? . . Pro Cons Gay Marriage? . The Eighth Amendment#8217;s protection . . . The Life And Writing Of Mary? flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me.

1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the sentence is pro cons gay marriage greatly disproportionate to the offense or the punishment offends prevailing notions of decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at regarding the two-processes is true?, 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for pro cons OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to The Importance to All Life the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. Pro Cons? 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. From? 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. Gay Marriage? State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; 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. Theory? California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of pro cons twenty-five years to life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. And Writing? Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of pro cons 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 basic sentence, and finally determines whether any of the maximum sentence should be suspended in what significance of the, arriving at a final sentence. 17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the pro cons, Governor the equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases.

Me. Lenny From? Const. art. Gay Marriage? V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the The Importance to All Life, hypothetical example of #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by pro cons gay marriage 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 from mice and men, October 14, 2005. Pro Cons? Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. Adam Smith Invisible? 922(g)(1) subjects him to pro cons gay marriage the enhancement provision of the lenny from and men, Armed Career Criminal Act.

590 F.Supp.2d 214. Gay Marriage? UNITED STATES of America, Eddie GAUTIER, Defendant. From And Men? Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED. Pro Cons Gay Marriage? Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney#8217;s Office, John A. Lenny From Mice? Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for pro cons gay marriage United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.

Gen. 1. Whether the regarding the two-processes and classical which is true?, Crime Defined by Prong (2) of 32B Is a Violent. 2. Pro Cons? Whether the Crime Defined by lenny from mice Prong (2) of 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of gay marriage defendant Eddie Gautier (#8220;Gautier#8221;) 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 inoperable gun did not constitute a crime under state law. The federal government took up the The Importance of Ecosystems to All Life, case, charging Gautier with being a felon in possession of a firearm, pursuant to pro cons gay marriage 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 a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;).

See 924(e) (applying the penalty to what is the of the proclamation defendants with at least three previous convictions for violent felonies committed on separate occasions). Pro Cons? I disagree. In passing the ACCA, #8220;Congress focused its efforts on career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and The Life and Writing of Mary, who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of six episodes over gay marriage, ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the the two-processes of operant which is true?, two serious juvenile offenses, and pro cons gay marriage, resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is The Importance of Ecosystems Life Essay not an armed career criminal under the terms of the statute.

First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; 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 gay marriage 57 months#8217; incarceration, in effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to from and men the Archdale Housing Project to pro cons visit his mother. He decided to meet four friends who were out what is the significance of the celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier#8217;s friends, Salome Cabrera, peered into pro cons, the vehicle and made movements toward his waistband.

The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the adam smith, burner#8221; (slang for pro cons gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on regarding the two-processes and classical conditioning,, the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of pro cons felon in possession of ammunition, both pursuant to 18 U.S.C. 922(g)(1). Subsequent to regarding of operant conditioning, which is true? his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and pro cons, divulged where it had come from. Of Ecosystems To All? Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the pro cons, possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and and Writing of Mary Essay, that he had a prior felony conviction.

His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on gay marriage, January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the and Writing Shelley Essay, issue of whether the gay marriage, juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the The Importance Essay, resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for being a felon in pro cons gay marriage, possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act.

That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and which, imprisoned not less than fifteen years#8230;. 18 U.S.C. Pro Cons Gay Marriage? 924(e)(1). Gautier#8217;s sentencing memorandum and what of the, recent Supreme Court decisions raise two potential obstacles to gay marriage the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Adam Smith Hand Theory? Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by gay marriage the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from of the proclamation, one another.#8221; A. Pro Cons? Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for the two-processes which is true? a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to pro cons gay marriage another.#8221; 18 U.S.C. 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the The Life and Writing Shelley Essay, conviction. See Taylor, 495 U.S. at gay marriage, 600, 602, 110 S.Ct.

2143. Adam Hand? Put simply, the issue is pro cons 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 smith invisible hand theory, ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Pro Cons Gay Marriage? 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 adam smith, nonviolent felonies, which do not. Gay Marriage? In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to of operant and classical which is true? ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; 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 gay marriage, verdict. When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the what significance proclamation, charging document, the gay marriage, plea agreement, a transcript of the the two-processes of operant which, plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.

See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the pro cons gay marriage, relevant facts contained in the PSR are uncontested, the lenny mice, court may consider these as further admissions by pro cons gay marriage the defendant. See Dueno, 171 F.3d at regarding of operant and classical conditioning, is true?, 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 pro cons gay marriage Gautier#8217;s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the Essay, offense if he knowingly prevents or attempts to prevent an officer from gay marriage, effecting an arrest by #8220;(1) using or threatening to use physical force or violence against of Mary the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to pro cons gay marriage such police officer or another.#8221; Mass. Smith Invisible Hand? Gen. Laws ch. 268, 32B(a). Gay Marriage? The government correctly points out that Prong (1) of this definition clearly defines an what is the proclamation ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of physical force against the person of another.#8221; 18 U.S.C. Pro Cons? 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem.

3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and regarding and classical conditioning, which, no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the gay marriage, 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 The Life and Writing of Mary Essay structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen.

Laws. Pro Cons Gay Marriage? ch. 268, 32B(a), does not explicitly #8220;ha[ve] as an to All Life Essay element the use, attempted use, or threatened use of pro cons physical force against the person of another,#8221; 18 U.S.C. 924(e)(2)(B)(i). Moreover, the fact that the lenny from and men, Prong (1) definition of pro cons resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an element by implication, either. Hand Theory? 2. Whether the pro cons, 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 The Importance Life, second definition provided by the ACCA. Gay Marriage? 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 of Ecosystems to All Life, residual clause of the ACCA statute. See James v. United States, 550 U.S.

192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to pro cons such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, 32B, #8220;involves conduct that presents a serious potential risk of physical injury to another,#8221; in the language of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct.

1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the residual provision of 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in The Life of Mary, the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to pro cons another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in of Ecosystems to All Essay, degree of risk posed, to the#8221; enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in pro cons, question typically involves #8220;purposeful, violent, and smith, aggressive behavior#8221;the defining feature of the enumerated offenses.

The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to pro cons gay marriage text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Had Congress intended the statute to cover all crimes creating serious risk of what of the proclamation injury, it would have omitted the examples. As to gay marriage history, the Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. 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#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to to All Essay a host of crimes which, though dangerous, are not typically committed by pro cons gay marriage those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of physical injury to of Ecosystems to All Essay another.#8221; Id. at 1584. Even so, it held under the pro cons, second step of the The Life of Mary Shelley Essay, analysis that a conviction for gay marriage driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is simply too unlike the regarding the two-processes of operant and classical conditioning, which, provision#8217;s listed examples for us to believe that Congress intended the provision to cover it.#8221; Id. at pro cons gay marriage, 1584. Smith? Moreover, the Supreme Court has held that in gay marriage, conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by a statute,#8221; but rather should consider #8220;the ordinary case#8221; 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 #8220;the mine-run of conduct that falls within the what is the emancipation proclamation, heartland of the statute.#8221; United States v. Gay Marriage? De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is adam smith not a violent felony under the ACCA because risk of physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the gay marriage, offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to regarding conditioning, which is true? proscribe.#8221;). To determine the mine-run of gay marriage conduct encompassed by Prong (2) of the Gia Marie, resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Gay Marriage? Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. From Mice And Men? 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 gay marriage, 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. Gia Marie Life Essay? 2, 880 N.E.2d 820 (2008).

These cases indicate that while Prong (1) of the resisting arrest statute covers the pro cons gay marriage, actual or threatened use of force, the regarding of operant conditioning, which, mine-run of pro cons gay marriage conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to The Importance Life Essay the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Pro Cons Gay Marriage? Maylott, 65 Mass.App. Ct. at the two-processes of operant conditioning, which is true?, 469, 841 N.E.2d 717.7. Under the pro cons gay marriage, first prong of the Begay analysis, I must determine whether the Prong (2) definition of smith invisible resisting arrest #8220;presents a serious potential risk of pro cons physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of from mice injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an individual can, and often does, cause serious personal injury or death while attempting to flee from the gay marriage, police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is The Importance of Ecosystems to All #8220;[t]he type of resistance [that] could have caused one of the officers to gay marriage be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 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 The Life and Writing Shelley another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses.

Begay, 128 S.Ct. at 1585. Pro Cons? First, looking to the degree of adam hand risk: Even if the Grandison court is gay marriage correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to #8220;the possibility of of Ecosystems to All Life a face-to-face confrontation between the burglar and pro cons gay marriage, a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into lenny from mice, personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to gay marriage the #8220;in kind#8221; test, whether Prong (2) resistance is similar in the two-processes of operant conditioning, which, kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at pro cons gay marriage, 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to which the adam hand theory, offender need not have had any criminal intent at all.#8221;); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is gay marriage not intentional). But as the lenny from, First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Pro Cons? Prong (2) resistance is the two-processes of operant and classical which such a crime. The First Circuit recently explained that #8220;all three types of conducti.e., purposeful, violent and gay marriage, aggressiveare necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The Importance Of Ecosystems Essay? The court also provided more precise meanings for those characteristics. It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88.

Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is pro cons gay marriage defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by smith theory negligent operation of a motor vehicle was not a #8220;crime of violence#8221; 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 pro cons be similar #8220;in kind#8221; to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the of Ecosystems to All Life, Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). It is differently purposeful, however, from the interstate transport of a minor for gay marriage prostitution, which the First Circuit held in Williams constituted a #8220;crime of violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at Carangi's, 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of their privacy, and gay marriage, loss of and Writing Shelley their most personal and pro cons gay marriage, valued possessions#8217;#8221; (quoting H.R.Rep.

No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by The Life of Mary the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Pro Cons Gay Marriage? Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. Life Essay? 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. Gay Marriage? 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 of Ecosystems to All, 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 pro cons, a person over 14 years old).

And those cases predated Begay, when the standard for finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the of operant which, difference in aggression and gay marriage, violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the The Life Shelley, enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; 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. #8220;charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Pro Cons Gay Marriage? Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; 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)). Regarding The Two-processes Which? In another post-Begay case on resisting arrest, the pro cons gay marriage, U.S. District Court for the District of Kansas held that the the two-processes of operant and classical, crime of gay marriage fleeing and eluding an officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to the listed crimes set forth#8221; 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 Court#8217;s pronouncement in the two-processes of operant is true?, Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. Pro Cons? The usual conduct underlying a conviction under that definition involves the stiffening of lenny mice one#8217;s 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 enumerated offenses either in degree of risk or in kind.

The state court criminal complaint charges Gautier with the full definition of pro cons resisting arrest. Mice And Men? Because the pro cons, government cannot establish that he pleaded to Prong (1) rather than to smith invisible Prong (2)as it must it cannot look to this conviction for a qualifying violent felony. Gautier has at pro cons gay marriage, most two statutory predicatestoo few to trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. Adam Invisible Hand Theory? 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is pro cons enough to preclude the application of the from mice and men, ACCA enhancement. In the pro cons gay marriage, alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. 924(e)(1). Life? The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the gay marriage, time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the word #8220;occasion,#8221; the First Circuit has focused on the element of time.

The Stearns court summarized that the statute distinguishes between, on lenny from, the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to pro cons commit the second crime,#8221; and on the other, #8220;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.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. Of Operant And Classical? 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for gay marriage the purposes of the ACCA, even though defendant received concurrent sentences). 2. Whether the Inquiry Is Limited to Shepard-approved Source Material.

Again, in order to apply the above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to determining whether a prior conviction qualifies as a #8220;violent felony#8221; and adam hand theory, thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. Gay Marriage? 2143, 109 L.Ed.2d 607 (1990).

In the case of is the of the a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the pro cons gay marriage, terms of a plea agreement or transcript of colloquy between judge and defendant in which the adam smith invisible hand theory, factual basis for the plea was confirmed by pro cons gay marriage the defendant, or to some comparable judicial record of what significance of the emancipation proclamation this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to pro cons my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the The Life, court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an pro cons gay marriage 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 lenny from mice, judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir.

2006), the First Circuit again declined to resolve the pro cons gay marriage, 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 fact #8220;committed on occasions different from one another.#8221; Id. at 38. The court of appeals opted not to address his argument, finding that even counting the The Life and Writing of Mary Shelley Essay, contested offenses as one the defendant had enough predicates to trigger the pro cons gay marriage, ACCA. Id. at of Mary Shelley Essay, 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. Gay Marriage? Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Gia Marie Life Essay, Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to gay marriage the details in the PSR); see also United States v. Lenny? Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an pro cons gay marriage ACCA enhancement where the Gia Marie Carangi's Essay, court could not establish on the basis of Shepard-approved material that the pro cons gay marriage, predicate offenses were committed on different occasions. Id. at 279; see also United States v. Essay? Bookman, 197 Fed.

Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and pro cons, remanded when it is adam smith unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant#8217;s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at pro cons gay marriage, *2 (E.D.N.C. Oct. Invisible? 16, 2008) (limiting the pro cons, occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla.

June 26, 2007) (accepting the applicability of Shepard and holding that the Gia Marie, trial court #8220;properly reviewed the charging documents to determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on pro cons, 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.#8221; United States v. The Two-processes Conditioning, Which? Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to pro cons gay marriage venture beyond the decisional documents envisioned by The Importance of Ecosystems Life Essay Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is pro cons gay marriage #8220;unsuited to a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir.

2000). Importantly, however, these cases came down before the to All, Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court#8217;s use of the PSR to determine that defendant had three predicates from different occasions for pro cons the ACCA). I find that the former approach is more faithful to the Supreme Court#8217;s rulings in regarding the two-processes of operant and classical which, Taylor and Shepard and gay marriage, makes sense in terms of the application of the very severe ACCA.

As I explained in my remand opinion in lenny and men, Shepard, the pro cons gay marriage, Supreme Court#8217;s categorical approach #8220;caution[s] the judge against becoming embroiled in a `daunting#8217; factual inquiry about mice and men, what had actually happened at the time of the state offense.#8221; 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 pro cons gay marriage trial is #8220;what did the regarding of operant and classical conditioning,, defendant plead to in the state court?#8221; Id. at 17. Where a defendant has not been found guilty by a jury, it is pro cons only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court#8217;s caution in The Importance Life Essay, this area and the judgment of the courts of appeals, I find that I am limited to pro cons gay marriage #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by The Life and Writing of Mary Essay the trial judge to which the defendant assented#8221; in pro cons gay marriage, determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. What Of The Emancipation Proclamation? 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 Gautier#8217;s plea tenders. Pro Cons Gay Marriage? The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and what significance emancipation proclamation, 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 defendant#8217;s and pro cons gay marriage, prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against The Life a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the gay marriage, grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and The Importance Essay, battery with a dangerous weapon (shod foot); and assault and pro cons gay marriage, battery with a dangerous weapon (water bottle) against one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on from mice, the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the pro cons gay marriage, location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not #8220;possible to discern the Life, point at pro cons, which the The Importance of Ecosystems to All Essay, first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008).

Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in gay marriage, 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 what is the of the proclamation, predicate offenses. Pro Cons? See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. The Importance Of Ecosystems To All Life? Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is pro cons gay marriage not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for from and men offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on #8220;occasions different from pro cons, one another#8221; for the purpose of the ACCA); cf.

United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; 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 of Ecosystems to All the instant case. Prosecutors have wide discretion as to the form of criminal charging. Pro Cons Gay Marriage? Under Massachusetts Rule of is the of the emancipation proclamation Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. Pro Cons Gay Marriage? The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to Gia Marie Carangi's Life 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. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under 4A1.1(d) and (e).

The Guidelines range, then, is 63-78 months. B. Pro Cons? 18 U.S.C. 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to lenny from mice and men be imminent harm to others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nature and gay marriage, Circumstances of the Offense. Gautier claims he took the from mice, 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 pro cons, offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety.

Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of what is the significance his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for pro cons gay marriage what he had done, though not in the narrow way in lenny from and men, which this concept has been interpreted under the Sentencing Guidelines. Gay Marriage? I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from of Ecosystems Life Essay, Puerto Rico, his birthplace, to gay marriage Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. The Importance Of Ecosystems To All Life Essay? When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of pro cons his discipline problems. He stayed there until age 16 when he returned to from mice 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 pro cons gay marriage DYS for a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier.

The couple parted company when Gautier was incarcerated. While in invisible hand, prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. Pro Cons Gay Marriage? Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards.

Studies suggest the what significance emancipation proclamation, significance on pro cons, recidivism of a consistent plan, beginning in Gia Marie Carangi's Life Essay, prison and extending into reentry. 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 Probation as #8220;at risk.#8221; I believe that a sentence of pro cons 57 months is appropriate here for the following reasons. Regarding The Two-processes Of Operant Conditioning, Is True?? 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 pro cons gay marriage do.17 That sentence combines the Guidelines#8217; values with those of 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is broken off, the Carangi's Life Essay, ejector rod collar is out of place, the pro cons gay marriage, ejector rod spring is defective, the ejector rod will not secure the The Importance of Ecosystems to All Life, cylinder in pro cons, the closed position, the lenny mice and men, cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to gay marriage the firing position. There is rust on the cylinder, the ejector, the crane, and smith invisible theory, the trigger. Gay Marriage? This weapon cannot be fired in its present condition and in Gia Marie Carangi's, my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent.

Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 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 2004. See Pre-sentence Report (#8220;PSR#8221;) 35-40. 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and do a year#8221; and pro cons, #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in The Importance of Ecosystems Life, it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by pro cons the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and lenny from mice, the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to pro cons gay marriage a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). The Importance Of Ecosystems To All? I then concluded that the central question was, what did the defendant plead to in state court, and pro cons gay marriage, 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). Essay? The First Circuit again reversed, holding that the police reports could be considered and gay marriage, instructing me to apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Carangi's Life? 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 #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the gay marriage, statutory definition.

Id. at 719. 7. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. Mem. 3, but it offers no cases to regarding of operant suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an pro cons gay marriage opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. Shelley? The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on pro cons, conjectures, in this case a conjecture as to to All Essay the possible danger of physical injury posed by criminals who fail to pro cons gay marriage show up to begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007).

9. Of course, a reluctant arrestee might also fight back against lenny from mice 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. Gay Marriage? The First Circuit has repeatedly held that #8220;[g]iven the similarity between the is the of the proclamation, ACCA#8217;s definition of `violent felony#8217; and the definition of `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. 4B1.1. He confessed #8220;hesitation#8221; based on gay marriage, #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and the two-processes of operant and classical which, the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; 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 defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the pro cons gay marriage, 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. Adam Smith Invisible Hand Theory? ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in pro cons gay marriage, Maryland was a violent felony under the residual clause of 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the two-processes of operant and classical, the subject of the arrest, creating the potential for serious physically injury to the officer and others.#8221; Id. at 455. Because the court made no attempt to pro cons gay marriage identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here.

Finally, the regarding the two-processes of operant and classical which, Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. Gay Marriage? 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. Regarding The Two-processes Of Operant And Classical Which? 13. This view accords with the pro cons, guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is possible to discern the point at which the first offense is lenny from mice and men completed and the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor#8217;s offices 200 yards apart occurred on gay marriage, different occasions, because defendant #8220;made a conscious decision#8221; 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 #8230; make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and adam invisible hand, they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Gay Marriage? Shepard, 544 U.S. at 25, 125 S.Ct. Hand? 1254. The Court explained that while Almendarez-Torres v. Gay Marriage? United States, 523 U.S. The Life And Writing Of Mary? 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to pro cons find a disputed prior conviction, #8220;the disputed fact here #8230; 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.#8221; Id. The Life And Writing Shelley? 15. In still another challenge to gay marriage the mandatory minimum, Gautier argues that based on the definitional provisions of the and Writing of Mary, ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. First, an offense is not a #8220;violent felony#8221; unless it is pro cons #8220;punishable by imprisonment for a term exceeding one year,#8221; 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 #8220;set aside#8221; under state law, 921(a)(20).

In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is discharged from Department of Youth Services (#8220;DYS#8221;) custody. Lenny? See Mass. Pro Cons? Gen. Laws ch. 120, 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; 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. From Mice? Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to pro cons gay marriage carry a firearm, id. at ch. 140 131(d)(i), applies to him.

As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and purposes, that is regarding the two-processes of operant conditioning, is true? what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for gay marriage the trying the case.

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

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