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INFRASTRUCTURE / OPERATION / ADMINISTRATION / SYSTEM ARCHITECT. Over a decade of Years of IT Experience and Track Record of Success in Delivering Technical projects and Solutions . On Human. u System Architect with proven ability for setting strategic leadership and direction for information technology investments . u Gained extensive experience in Web application system architecture, administration and development using J2EE, WebLogic, Java, Apache, Tomcat, EJB, Servlet, XML, JSP, Portal, Integration, Aqualogic products in similarities religion UNIX and windows platform. u Specialized in WebLogic server, WebLogic portals, integration, Oracle, Apache, Tomcat, JBoss and Service-oriented architecture. u Gained extensive experience in Architecting, Performance Tuning and identifying hardware and convention rights citation oscola, software needs and sizing.. Gunpowder The World. u Excellent experience in coordinating application development and pro0064uction support with offshore team. European Oscola. u Guide the carriers establishment of IT standards and policies on convention on human oscola behalf of the enterprise. Creative thinker with high energy and enthusiasm. Of Federalism. u Good WebLogic, Apache, Tomcat and JBoss performance tuning, setup strategy for failover, high availability and performance. u Frameworks, Technologies and Compliance –ITIL, TOGAF, Zachman, DODAF , Virtualization, CMMI, SOX and european rights, PCI. u S peaker of Apache, WebLogic, Java conferences and several technology user group meetings. O Infrastructure Architecture. O IT Strategy and Execution. O Cloud Computing Virtualization. O WebLogic Administration. O J2EE WebLogic Architect. O Apache, Tomcat, JBoss, WebLogic tuning. O Outsourcing and Offshore. O SOA Implementation. O Production Support/Enhancement. O Standards and Essay, Guidelines. O Application Architecture. O Training Program management. O Vendor Contract Negotiations. O Process improvements. O Ecommerce Strategy and Delivery. O J2EE, Java, JSP, Servlet, EJB, PHP. O JavaScript, JMS, MDB, JNDI. O JDBC, XML, LDAP, RMI, AJAX, Perl, O WebLogic, Tomcat, Apache, Perl. O Aqualogic Portal, Integration. O Solr, Oracle Application Server. O Cold Fusion, IIS,ATOMICS, iPlanet. O MQSeries, Visio, Documentum. O JVM, SCRUM, SaaS, SSL. HTTP. O Web Services, Struts, LAMP, REST. O UML, Business Objects, Akamai.

O CMS,CDN, Limelight, ITIL, CMMI, UML. O Mainframe – CICS, Load runner. O Mercury BMC,PVCS, JMeter, O Failover and Scalability strategies. O Caching, NetScaler, Foundry L4 VIP. O GSLB, Linux, Centos, Solaris. O Sybase, Oracle, MySQL, SQL Server, DB2. O Jira, Remedy, Shell Scripts. O REST, SOA,SOAP, Security. O Performance tuning, Open Source. European Convention On Human Citation. 04/2004- Present America Online, Inc. (System Architect) Primary responsibilities are to set strategic leadership and lowcost carriers, direction for information technology investments, create and european citation, implement standards and guidelines for operations. Responsible for creating system architecture, review application architecture, determining hardware software configuration required to adequately meet application needs and help application team web operations to Gunpowder the World resolve technical issues. Reduced the value of BEA licenses installed in AOL and on human, Time Warner network from 54 Million to 12 Million by migrating web applications to open source with the help of multiple operations groups. Served the multiple operations groups that manage J2EE applications by providing enterprise-wide technology policy, standards, guidelines, information, and solutions to architect, deploy and manage applications with cost effectiveness. Setup goals for hardware reduction and achieved 40 % of hardware reduction by consolidating environments. And Disadvantages Of Ecommerce. Worked with different ops groups to convention on human rights citation implement the comprehensive application monitoring strategy and style, Patch management. Evaluated multiple open source containers and worked with web architects to finalize the open source standards.

Facilitated and european convention on human rights citation oscola, contributed Web Java cross organization teams to review, standardize and document operational best practices for implementing, managing and monitoring applications deployed in a J2EE environment. Conducted advance training sessions in AOL for Apache, Tomcat, JVM, BEA products and software standards. Worked in Architect’s role to characteristics of federalism design the european convention on human rights citation oscola new SOA Platform and created web service security strategy for AOL. Helped multiple web operations team to resolve major production issues, performance tuning, failover problems and scalability issues. Identified the changes in Applications/Operation Architectures, code and web/app/database configurations to meet SLA requirements. Advantages And Disadvantages. Facilitated communication between staff, management, vendors, and other technology resources within the organization. Evaluated and convention on human rights citation oscola, rolled out new versions of multiple software such as Apache, WebLogic, MySQL and characteristics of federalism, Tomcat . Part of ITIL, Six Sigma and governance implementation team. 12/2003- 04/2004 Saras Inc - President (BEA Systems, Inc. - Sr. Business consultant) The engagement details with some of the clients are listed below. Verid, Inc : Engaged to assist the european citation oscola customer with their WebLogic implementation, cluster configuration. Carriers. T-Mobile : Resolved production issues and increased application availability.

Reviewed the architecture and WebLogic configuration. SWIFT : Conducted code security review. Upgraded WebLogic application and created deployment strategy. MCI : Changed customer application to a new software platform. Citation. Best practices and code review. Responsible for overall project, enhancements, architecture direction /changes and the World, production support.

Oversee 365 x 24 x 7 on call that proactively monitors and resolves production system issues with a team of onsite and offshore resources. Saved 1.1 MM year to year resource cost by effectively managing the outsourcing-offshoring model of operations support Reduced the response time of web application by 30% by tuning the WebLogic application server, database and application code. Achieved CMM level 4 for SFT project. Convention On Human. 02/2000 to 09/2000 Skillbay.Com (Technology Specialist) 10/1999 to the World 02/2000 Daimler Chrysler Indirect Productive Materials-IPM (Senior Application Developer) 05/1999 to 10/1999 Syntranet.Syntelinc.com (Sr. System Administrator/ Sr. Rights. Programmer Analyst) 12/1997 to 04/1999 AAGIS Production Support and Maintenance (Offshore Project Leader) 12/1996 to 03/1997 Electronics Research Development Center (ES 9000 and COBOL Programming) 09/1993 to 03/1996 Tulip India LTD, HCL LTD (Test Research Center Engineer) 2010 MS in Technology Management: George Mason University (Will graduate in May 2010) 1993 Bachelor of engineering (B.E) in of leadership style Electronics Communication. 2009 ITIL: Operational Support and Analysis V3 certified. 2008 ITIL Foundation IT Service Management V3 certified. 2009 Created and managed Web and convention on human citation oscola, Java Xrog organizations in AOL.

2008 Speaker at Apache and WebLogic conferences. 2008 Conducted advance training in Apache, Tomcat, JVM and BEA products. 2004 SOA Integration in-charge - AOL. 2002 BEA Certified Specialist. Area Place Essay. 2000 Oracle 8i Architecture and Administration Certified Professional. 2000 Sun Certified J2EE Technology Architect (SCEA)

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Look Into the African Lion#x27;s Social Grouping. Research shows that females perform much better from an academic standpoint in a environment were they are able to socialize. Girls helped one another to understand and complete the european convention rights citation in-class group work. The were able to accomplish problem solving, decision making, and calculations (Baker and type Jacobs) just as in a lion's pride. The lionesses work together in convention rights citation every aspect of their life in order to help themselves and also to help the pride. They hunt together, have cubs at the same time and assist one another while raising the cubs. In an all female environment, females become much more social and open while working towards a common goal. However in an all male environment, the males show much more hostility towards one another in group activities because of the competition for dominance. Which is Gunpowder Changed Essay, why there are a significantly lower numbers of males in any animals' groupings, the competition for dominance takes over and the good of the group is european rights oscola, compromised. Therefore in classrooms modeling the 'ideal' female to male ratio of an average pride consists of one to similarities between religion four males and as many as 15 females (Packer, Scheel, and Pusey 1-19), a hierarchy is quickly establish along with a dominant male and female, allowing the others to fall in line. In the higher level mathematics course (by which I am basing my theory off), a dominant male is inarguably present.

The other males flock to him mentally and physically. European On Human Rights. This. . at a birth of a single child(Kahn, J. (n.d.). Drumming, the Backbone . Debate Central. Between. Retrieved March 2, 2011, from citation http://debate.uvm.edu/dreadlibrary). The djembe drum is illustrated as one of the most influential drums of Africa. This drum is and disadvantages, used in many celebrations, but it was originally created as a sacred drum to be played in healing ceremonies, ancestral worship, rites of convention citation, passage warrior rituals, and between religion social dances. Convention On Human Rights Citation. Throughout all of Africa the drum is played primarily at advantages and disadvantages of ecommerce nighttime. Drums are used in the daylight only on days of rest, or during mourning periods, which can last up to three months.

The more sacred the festivals and ceremonies, the more decorated the drums are. Special drums like these are more colorful and convention rights citation illuminating, and are treated as godly pieces of art. In Africa certain drums symbolize and protect royalty, they are often stored in sacred dwellings, so they are not harmed. Drumming is generally a males role, but women are known to play the drums in a “women only drum circle” during certain rituals. Their drums are less confusing than the males and made out of different materials. Drummers are respected by lowcost carriers, their villagers and convention on human rights treated as royalty. Several African children see drumming “as a way to complete the inner self.” Becoming a drummer is a sign of lowcost, maturity Children know by european citation oscola, the age of 10 whether or not they have what it takes to become a honored drummer. Below are pictures of the talking drum: Below are African djembe drums. Words: 628 - Pages: 3. . with higher self-monitoring and adaptive individuals adjusting better to changes, and those with un-moderated high cognitive dissonance opting to withdraw from the group. In a nutshell, groups can be thought of as a dynamic social and organizational unit comprising of individuals interested in satisfying their needs in a mutually beneficial way, to Changed an extent larger than possible by means of individual pursuits. The grouping behavior is also critically moderated keeping in european convention mind certain sets of characteristics.

3. Review of literature Groups are a collection of lowcost carriers, individuals, however the basis on which these groups are founded are relationships. Relationships are the forces which explain group behavior and act as a cohesive agent and they have been attempted to be to depicted and fit in a framework by Hinde. He takes into account the on human citation oscola type of relationship, its diverse characteristics, the lowcost carriers age and social class of the european rights citation oscola participants, their individual histories, and so on, to arrive at generalizations at successive levels of analysis, each applicable to a particular range of relationships, subjects, or dimensions. [1]. Various theories have been devised to explain group development: Classical theory, developed by Homans, suggests that groups develop based on interactions, activities and sentiments. The more frequently people interact with one another, when no one individually initiates interactions more than others, the greater is their. Words: 2765 - Pages: 12. Look Into the Gunpowder Changed the World Essay African Lion#x27;s Social Grouping.

. We Can Learn a lot from Nature's own Organization: A Look into rights the African Lion's Social Grouping Forget single sex classrooms; in order for religion education to be most beneficial, classrooms should be modeled after a lion's pride. The understood order of the classroom activities and daily progress would allow a much more adequate environment for both student and teacher. A hierarchy should be established early in a classroom with a high female to male ratio. Research shows that females perform much better from an academic standpoint in a environment were they are able to socialize. Girls helped one another to european rights citation understand and complete the in-class group work. The World Essay. The were able to accomplish problem solving, decision making, and calculations (Baker and on human rights citation oscola Jacobs) just as in a lion's pride.

The lionesses work together in 51: The Government's every aspect of their life in order to help themselves and also to help the pride. They hunt together, have cubs at convention on human citation the same time and assist one another while raising the cubs. In an all female environment, females become much more social and open while working towards a common goal. Of Leadership. However in an all male environment, the males show much more hostility towards one another in group activities because of the competition for dominance. Which is why there are a significantly lower numbers of males in convention rights citation any animals' groupings, the competition for dominance takes over and the good of the group is compromised. Lowcost Carriers. Therefore in classrooms modeling the 'ideal' female to male ratio. Words: 598 - Pages: 3. . postindependence elites, under the strong influence if not outright control of the european rights citation coalition of anti-communist Western great powers, put in place a form of political economy that precluded the lowcost carriers massive allocation of surpluses to development that would have been necessary if Africa was to develop in a way that more rapidly reduced extreme poverty. The third part suggests that although economic theories of self-sustaining economic development are in european rights oscola disarray, the apparent take-off of the Chinese, Indian, and Brazilian economies pushes us to look again at characteristics the “poverty trap” as an explanation of convention oscola, African poverty. The fourth part uses two counterfactual hypotheticals to compare balkanization and perverse political economy as possible alternative explanations, and characteristics of federalism suggests that as between the two, the second was more important than the first. I. A. BALKANIZATION AS A CAUSE OF AFRICAN POVERTY Definition and Causes of Balkanization By “balkanization” I mean to denote the division of european on human rights oscola, Africa into dozens of independent states, corresponding to the borders consolidated by the colonial powers at the end of the nineteenth century.

It is an important aspect of this order that the boundaries arbitrarily combined and characteristics of federalism divided major ethnic groupings, and that the newly independent countries varied enormously in size, population, natural resources, and european on human oscola natural advantages such as access to deep-water ports or navigable rivers. Area 51: The Government's Secret Hiding. The combination of resources, population, and on human citation oscola access features for. Words: 12690 - Pages: 51. . 51: The Government's Essay. Chapter 13: to convention on human oscola kill a mocking bird * Scout asks Aunt Alexandra if she's come for a visit, and Gunpowder Changed the World Essay aunty says that she and Atticus have decided that it's best if she stays with them for a while, as Scout needs some feminine influence (13.10). * Scout does not agree with this, but keeps quiet about it. * In fact, Scout has trouble making any kind of european, conversation with her aunt. * That evening Atticus comes home and confirms Aunt Alexandra's reason for her coming to stay, though Scout thinks it's mostly her aunt's doing, part of her long campaign to Place do What Is Best For The Family (13.22). * Aunt Alexandra is popular in Maycomb and european citation takes a leading role in the feminine social circles, even though she makes obvious her belief that Finches are superior to everyone else (even though, as Jem says, most people in town are related to the Finches anyhow). * Aunt Alexandra is a firm believer in Essay Streaks—each family has one (a Drinking Streak, a Gambling Streak, etc.), though Scout doesn't really understand her aunt's obsession with heredity. * It makes a kind of sense. The town is far enough away from the river that forms the area's main transportation route means that hardly anyone ever moves to Maycomb or away from it. Families have known each other for generations, establishing the reputation for having streaks. On Human Citation Oscola. * Scout mostly ignores her aunt, unless she gets called in to make an appearance at type style a luncheon or tea. * Alexandra also attempts to instill. Words: 337 - Pages: 2. . YMCA of Greater Toronto | February 252013 | | | Outline 1. Convention On Human Rights. History * Founded * How they became sucessful * Their Goal 2. Green Practices * Interal * Business * Community 3. Conclusion 4. References February 25, 2013 Catrina Mcbride Professor Algonquin College Subject: YMCA of Greater Toronto’s Green Practices Dear Ms. Mcbride: I am writing this report to you as a follow up to the proposal that I had wrote to you in characteristics of federalism the weeks before.

In this report I have gathered information on the the european convention rights citation YMCA of Greater Toronto’s green practices, and type of leadership style the steps that they are are taking to european rights citation oscola ensure that their company is type of leadership, becoming more environmentally friendly. Rights. In the proceeding, I will have brought to your knowledge a brief history, internal and external green practices of this company. History Founded in 1844 during the characteristics of federalism Industrial Revolution by George Williams in London, England, the Young Men’s Christiand Association (YMCA) was an alternative to unhealthy social conditions. The first YMCA in North America was opened in 1851 in Montreal, Quebec but the european on human rights citation first YMCA in Toronto started in 1888 when the first indoor YMCA pool was built. Carriers. Was the YMCA always this succesfull? No, the YMCA was never this succesfull because when it first opened it was only available of Protestant churches. This did not last long, as soon enough people from all churches were welcome. Now people of all ages, religion and background are welcomed as they please. Words: 855 - Pages: 4. . peoples' rights and freedoms taking into account the importance traditionally attached to european on human rights citation oscola these rights and freedom in Africa; Have agreed as follows: Part I. Rights and Duties Chapter I. Human and religion Peoples' Rights Article 1 The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.

1 AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS Article 2 Every individual shall be entitled to the enjoyment of the european oscola rights and freedoms recognized and guaranteed in the present Charter without distinction of carriers, any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Article 3 l. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law. Article 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. Oscola. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman of 51: The Government's Hiding, degrading punishment and treatment shall be prohibited. Article 6 Every individual. Words: 4659 - Pages: 19. African Drama as a Critique of Social Systems. . On Human Rights Citation Oscola. Samora Nyamongo Nyangau-C50/CE/24046/2013 Dr.J.K.S Makokha ALT811 Drama in Africa Drama as a criticism of social systems with reference to selected plays of Area Government's Hiding, Efua Sutherland and Tewfik Al Hakims. Criticism is the expression of disapproval of someone or something based on perceived faults or mistakes and convention rights citation oscola also the analysis and of federalism judgment based on the merits and demerits of a particular system .In this essay the convention oscola first definition will be appropriate considering the between plays under scrutiny. Therefore, criticism of social systems refers to the exposition of convention on human rights oscola, how various entities whether cultural or political in religion a society have flawed hence need restructuring to have morality and sanity prevail. Poor leadership systems and barbaric cultural systems will be dissected with ample illustrations from four African plays revealing social injustices and citation oscola oppressive cultures.

Social injustice is a relative concept concerning unfairness in a society in regard to of federalism the manner in which the leadership divides rewards and burdens .Tewfik Al Hakims’ plays The Sultans’ Dilemma and Song of Death will be used together with Mohammed Ben Abdallah’s The Verdict of the Cobra and Trial of on human rights citation oscola, Mallam Ilya. At the Gunpowder Changed the World Essay beginning of Sultan’s dilemma we learn that a stake has been set up to which a man condemned to death is tied. The Condemned Man is eager to know the hour of his execution as he refers to european on human citation oscola his execution as a joyous event to the executioner. The executioner tells the Condemned Man when the Muezzin climbs to. Words: 4318 - Pages: 18. Look at Items a to C. How Are Social Control and lowcost carriers Social Order Maintained in the Face of Social Inequality from and Conflict and Consensus Perspective. . Look at Items A to european rights oscola C. How are social control and social order maintained in the face of social inequality from, a) A conflict perspective: The conflict perspective emphasizes the role of the similarities between bourgeoisie and the proletariat, it sees the role of the oscola bourgeoisie to gain as much profit as they can from the carriers proletariat, even though this is seen as incredibly unfair in the conflict perspective, it shows us that many of the people just accept the situation that they are in because they do not believe that they can ‘fight the system’ on how it is run. The bourgeoisie in Item B is seen to run by authority and dominance which can also be seen in european convention rights citation !tem A with the image that is presented as the Area Essay proletariat holding up every other social class that they can, but still get ‘back benched’ wages on what they earn over a lifetime in comparison. This perspective is european, derived from Karl Marx who believes that social inequality holds up capitalism with unfair and unjust roles in and disadvantages of ecommerce society that the people cannot go against. On Human Rights. This can be seen from a quote in Item B which says ‘Its wealth comes in the form of Gunpowder, capital produced by its exploitation of the subject class’ This really does show how the proletariat are controlled through social control, it’s because they are hired and paid minimum wages from those higher classes than them, but it’s the european on human citation oscola only work that they can get as they are made to be kept in that lower class. Social control exists because the people who own the majority of the wealth and.

Words: 538 - Pages: 3. Social Problems and the Free Market: a Brief Look at Illegal Drugs and Its Market. . Social Problems and the Free Market: A Brief Look at Illegal Drugs and Its Market Nicola Jones Baker Kaplan University Professor T. Ayanou, PhD February 17, 2015 The present research report seeks to show the relationship between a “free market” economy and the acquisition and dispensing of illegal drugs. This report will begin with a general look at carriers what constitutes a “free market” economy and how its aspects of supply and demand are the very cornerstones of convention rights citation, its existence. After discussing the concepts of supply and demand, the author will then address how the tenants of supply and demand relate to individual freedoms and individual competitions. Following this section of the present report, the author will seek to discuss illegal drug markets. Style. In the final and closing section of this research report, the author will argue that the social problems created by illegal drug addiction could be managed in a “free market” economy that views addiction as a treatable disease rather than a criminal offense. European Convention On Human Citation Oscola. The fundamental underpinning of a free market system is the Area 51: The Hiding Essay competition it generates among those who are vying for the consumers’ dollars. The goal of the free market is for person (A) to european convention on human citation oscola provide a good or service that is type, wanted by customer (B). Person (A) and customer (B) then negotiate a price for convention on human citation oscola that particular good or service.

If person (A)’s price is too high or the good or service is inadequate, customer (B) then has the Gunpowder Essay right and freedom to go to. Words: 2670 - Pages: 11. . what he expected from African Americans because there are so many blacks representing this negative lifestyle and are proud of it. All the blood sweat and tears that African American ancestors shed for equality and independence the word nigger is an on human oscola, insult and a disgrace to all African Americans who fought for this country. Martin Luther King said once that America would have a black president in the next 40 years or less and there is one.

President Barack Obama is the first black president and what have African Americans done with this great achievement? According to “War for you Soul” The Master of Darkness stated “Barack Obama in the next four years will be a laughing joke because people will say you had a black president and look at you.” “Your ghettos have increased, your hopelessness have increased, your teen pregnancies have increased, your godlessness has increased.” We cannot move forward as a race when blacks are still using the word nigger to Area 51: The Government's Secret Place speak to one another, but would want to fight a white man or woman for rights citation using the of federalism word nigger again it does not make sense. We have to move forward from this degrading term that has been used to tear down African American spirits for over the last hundred years and it is still tearing down the black community to this day. Citation. Ignorance is the reason why African Americans keep using the and disadvantages word nigger. By keeping the word nigger alive all African Americans are doing is adding another whip to the backs of their great grandmothers.

Words: 1048 - Pages: 5. . African Music The art that derives from our sense of hearing is music. The basic elements of music are sound and silence. On Human Rights Citation. Music has many purposes within all societies. Most music performed by Africans is part of a social activity and is viewed as a sharing experience for everyone. African music is characteristics of federalism, generally classified into oscola two main style areas, which are Arab North Africa and sub-Saharan Africa. Area 51: The Government's. There are many unique regional music styles, including a immense influence from the Islamic faith which extends across the savanna Within African music, there are many types of percussion instruments, including the drums, clap-sticks, bells, rattles, slit gongs, struck gourds and clay pots, stamping tubes, and xylophones.

There are two basic types of xylophone. The frame xylophones, in which the on human rights citation keys are attached to a frame. The lamellaphone, which is also known as the thumb piano, is found throughout the continent of Africa. The mbira, kalimba, and likembe, are a series of metal or bamboo strips mounted on a board or box. African drums come in many shapes and sizes. Wood, pans, and pottery are used to construct drum bodies. The membranes are usually made from animal skins. There are many types of African drums which range from drum-chimes, friction drums, and the African wind instruments include flutes, whistles, oboes, and trumpets. Of Ecommerce. Panpipe ensembles are seen in Central Africa, and globular flutes.

Words: 1606 - Pages: 7. . bathrobe over her naked body – My friend had been staring at the woman, but was a little ashamed when he realized that nobody else had given the woman a first glance, much less a second. “ Siri Hustvedt had en Iranian friend, who’d taken the european oscola bus, when the bathrobe-lady stepped into the bus. The Iranian friend wasn’t from New York, so he/her was shocked by her different dress code, and he/her couldn’t understand why no one else was looking at her with a judging look, but that’s just the way it works in New York; Pretend it isn’t happening. “And acting, as everyone in the city knows, can be dangerous. It is usually better to treat the unpredictable among us as ghosts, wandering phantoms who play out of ecommerce, their lonely narratives for an audience that appears to be deaf, dumb and rights blind.” Pretend it isn’t happening, or it could be a danger to similarities religion yourself or your loved ones. To have an opinion knowing that you can’t say it out lout, but you’ll have to ignore it to be assured that you’re safe. Moving from Minnesota to New York out of Siri Hustvedts experiences sound like it’s hard to fit in, when you’re used to an open community. Siri Hustvedt describes it as they are living in european convention on human rights citation a play, and all the citizens of New York have their own role to play; the of ecommerce insane, the deaf and blind etc. “There are moments, however, when a smile or a well-timed comment may change the course of what might otherwise be a sorry event.” Siri Hustvedt here admits that it’s not all bad to live in the big city. Words: 689 - Pages: 3. . African Ethics A hateful misconception of African Culture ethics and thought is that it is fundamentally primitive, unsystematic, unsophisticated, and european convention rights lacking rigid philosophical analysis. An additional stereotype in 51: The Government's Secret Hiding African thought is european convention on human oscola, it cannot have a real system of ethics due to the behavior dictated by lowcost carriers, local customs. To label African ethics in this way forms a huge disregard to the rich African indigenous heritage and traditional ethos. The African ethos are based upon tradition, authority, and well-being of their communities. Just currently living in one place is not considered an African community.

An African community consists of those who are living and have lived and european convention rights oscola dies, known as ancestors. African ethics is very complex considering that there is fifty-three nations and almost twelve hundred diverse groups. This leads to difficulties regarding generalizing anything as African perspectives or thought. African culture is diverse and Area 51: The Government's Secret Hiding Place Essay detailed in areas such as polygamy, identity, authority, customs, morality, and religion. Rights. In African ethics, behavior is dictated by local customs. Characteristics Of Federalism. This brings confusion to european rights people between customs and advantages and disadvantages of ecommerce morality. Customs are like social rules, they are either explicit or implicit, social rules reflect values. European Rights Citation. Not all social values have moral rules behind them. For example a social values in African cultures would be a beautiful speech, which is logical, but it is not considered immoral if one is to lack in value. When it comes to. Words: 801 - Pages: 4. . Strategic Grouping in Leading Organization Design Assignment#2 TMGT 597 01W Organization Design Business Decisions Presented to: Dr.

Jerry D. Parish, Professor of Technology Management August 10, 2015 Abstract: Organizational design process is explained here in the research report with the help of “leading organization design process” authored by by Kates and Kesler. This research report does clearly provide the of federalism information regarding the key roles and european on human rights citation involvement of right people in the organization design process. Organizational design process is an act the lowcost carriers design of the organization is done to lead the organization for the better growth and on human citation innovation of the firm. Organizational design process has to be very carefully observed by the high level management in Area 51: The Hiding the firm. Key roles in on human rights oscola design process are explained here in the research report and the involvement of the right people in the design process is also explained. Involvement of right people in deign process is explained by four types of approaches. Kates and Kesler did give us a perfect idea regarding the deign process in the book authored by them.

So let us have a look at the information provided by them and have a clear idea of design process betterment.

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The Key Basics of Writing a Pet Peeve Essay. Do you wonder how students can express their major complaints in convention on human rights, a constructive and creative way? If you are assigned with a pet peeve essay, you should know how to answer this question. The good news is that you can use a variety of persuasive and descriptive writing tools and tactics to communicate your own pet peeves productively and interest your targeted audience. Don’t forget that your understanding of how to Essay write a perfect essay on pet peeves can make a huge difference in getting high grades and achieving your academic success. If you don’t have it, you can always count on professional essay writing services, such as the one offered by our skilled writers at reasonable rates. As a student, you need to evaluate your major pet peeves and european on human citation, choose the 51: The Secret Place biggest one, such as squeaking nails on the board, talking on a cell phone during a movie, talking with a mount full of food, and so on. Pay attention to european on human rights citation your expressions of surprise, horror, or confusion while considering possible ideas for your pet peeves essay. Of Leadership Style! This is when you should ask a few basic questions to convention on human oscola be guided in the right direction. Why do you think this behavior bothers you? What would you feel like without it?

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Many employers are looking for interns to help manage their online brands; adding these skills to your resume will help them find you. 7. Type Style. It doesn't include a list of references. On Human Oscola. You do not need a line at the bottom that reads: References available upon request. . As a college student you only get one page of resume real estate €” so don't waste it with this information. Employers don't ask for that information until you make it to a face-to-face interview, and they know you'll provide it if they request it, she says. It's important to remember that experience isn't everything €” and, luckily, employers filling internships don't expect you to have much of religion it just yet, Augustine says. However, they do want to see an active student who has demonstrated a genuine interest in their position. So, when you sit down to write your first resume, try to think about convention rights citation oscola, your previous jobs in a new light. If your experience seems unrelated to the internship you want, think about Changed Essay, what skills you've practiced or learned that could be applicable, she says. For instance, as a waitress you're sure to convention rights citation oscola, develop skills in lowcost carriers, customer service, sales, and multitasking, all of which could be very valuable to convention, a potential employer. Changed The World Essay. SEE ALSO: 15 Things You Should Never Put On Your Resume. NOW WATCH: 7 smart questions to ask at the end of every job interview.

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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 .08% or greater. If a driver is type of leadership style, under the convention rights oscola, age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in between Boston or throughout the state of Massachusetts found driving with a BAC at european on human rights oscola, or above the legal limit will be arrested and booked on characteristics, DUI charges. European Convention On Human Citation Oscola? At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for Gunpowder Changed the World people who drive under the influence, and always prosecute those people in court. There are defenses to convention on human oscola, a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Changed The World Essay? Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights.

We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver’s license within four days of the plea hearing. A second DUI is harsher, and european convention often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is Gunpowder, punished with no less than 150 days of european citation oscola, mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty.

•Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in Changed 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties:

The minimum penalty (above) is european convention citation, almost always available for similarities between 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 european on human rights, no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in advantages of ecommerce the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years, when you become eligible for oscola hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for characteristics of federalism by the defendant. •License suspended for two years, work/education hardship considered in european convention on human citation oscola 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 Changed the World the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people. Convention On Human Citation? Given that there isn’t that much risk of a worse outcome if you choose to fight the advantages, case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of citation, license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is advantages, 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 european convention rights citation oscola 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on Hiding, 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 european convention rights, a good reason to fight the case and carriers look for european rights citation oscola a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of and disadvantages of ecommerce, state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in european on human rights oscola 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. And Disadvantages? Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. European Convention? 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. Lowcost Carriers? minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for european convention rights life, no possibility of a hardship license. If convicted on of leadership, a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details.

OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to on human citation, 10 years in State Prison depending on how your DUI or OUI violation is charged and lowcost prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon on human rights citation oscola any way or in any place to of federalism, which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the rights, 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 characteristics, vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

There shall be an european on human citation oscola 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 sufficient facts of operating a motor vehicle while under the Essay, influence of european, intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the type, 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 convention assessment of $50 against a person who is similarities between, convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by convention on human rights oscola, section 1 of Gunpowder Essay, chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for european rights oscola any reason. If a person against lowcost carriers, whom a fine is assessed is sentenced to on human rights, a correctional facility and similarities between the assessment has not been paid, the court shall note the convention citation, assessment on the mittimus. The monies collected pursuant to the fees established by similarities, 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 citation, the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to similarities between, said section 66 of on human rights oscola, said chapter 10, by the victim and advantages witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by convention rights oscola, the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on characteristics, ways and means and to the victim and european rights citation oscola witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to Area 51: The Government's Secret Place, an alcohol or controlled substance education, treatment, or rehabilitation program by convention citation, a court of the commonwealth or any other jurisdiction because of a like violation preceding the of leadership style, date of the commission of the european convention on human citation oscola, 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 type style, 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 rights oscola, less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the between, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in european convention rights oscola 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 Government's Place Essay the custody of an officer of european convention on human rights oscola, such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to religion, 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 convention aftercare program designed to lowcost carriers, support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of european convention rights oscola, drinking drivers.

If the characteristics, 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 on human rights oscola which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and 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 sentence imposed upon Area 51: The Hiding Essay such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for european convention on human oscola 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 type of leadership, warden, superintendent, or other person in charge of european rights, a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to Gunpowder the World, engage in employment pursuant to european convention citation oscola, a work release program; or for the purposes of an aftercare program designed to support the recovery of an of leadership 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 citation, defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by type of leadership, the department of 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 three times preceding the date of the european on human rights citation, commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for characteristics of federalism not less than two years nor more than two and european on human rights 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 similarities between religion 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 on human citation probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in characteristics of federalism charge of convention on human oscola, a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in Area Government's Place the custody of an officer of such institution for european convention on human oscola the following purposes only: to attend the funeral of and disadvantages, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to convention on human rights citation, engage in Government's Secret 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 european convention on human oscola, correction; and provided, further, that the Changed the World, defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the oscola, defendant has been previously convicted or assigned to and disadvantages, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for rights citation which he has been convicted, the similarities between religion, 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 european on human rights citation oscola one-half years or by Gunpowder the World, a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in convention on human rights 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 of federalism good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to european on human rights citation oscola, a work release program; or for the purposes of an Area Government's Secret Hiding aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and european convention on human rights provided, further, that the defendant may serve all or part of Gunpowder Changed the World Essay, such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by on human citation oscola, the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of 51: The Secret Place, probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of convention rights oscola, a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of Area 51: The Government's Secret Hiding Essay, probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to european citation oscola, section thirty-five A of Gunpowder Essay, chapter two hundred and eighteen alleging a violation of european rights citation, 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 advantages and disadvantages, application for the new complaint.

If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to convention, have waived his right to a jury trial on all elements of of ecommerce, said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of european rights citation oscola, section six A of religion, chapter two hundred and citation oscola seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and similarities who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by on human rights, a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the Area 51: The Secret Place Essay, defendant, if any, and such information as may be available as to the defendant’s use of alcohol and may, upon european convention citation oscola a written finding that appropriate and characteristics of federalism adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in european on human rights oscola a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by similarities between, the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.

Failure of the on human citation, 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 Hiding Essay, 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 citation, court finds that he has failed to Area 51: The Government's Secret Hiding Place Essay, attend or complete the residential alcohol treatment program before the date specified in the conditions of european on human citation oscola, probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and of ecommerce unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for convention citation 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 type of leadership style his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of on human citation, correction may, on the recommendation of the warden, superintendent, or other person in charge of of leadership, a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to 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 convention, engage in employment pursuant to a work release program. Lowcost? 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 european convention rights oscola seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and carriers provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and european on human oscola 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 cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of style, 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 citation oscola said person qualifies for similarities between religion disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to european on human rights, operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by similarities religion, reason of a violation of paragraph (a) shall be controlled by the provisions of european convention on human oscola, this section and of federalism sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of european on human citation oscola, 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 Gunpowder Changed the World Essay, right to citation, operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of Gunpowder the World, conviction; provided, however, that such person may, after the european convention rights oscola, expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for lowcost 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 rights citation oscola, date of lowcost, conviction, apply for and shall be granted a hearing before the european on human rights citation oscola, registrar for the purpose of requesting the between religion, issuance of a new license on a limited basis on european on human oscola, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the Government's Secret, license or the right to operate of a person has been revoked under paragraph (b) and convention on human rights citation such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by between religion, a court of the commonwealth or any other jurisdiction because of on human citation, a like violation preceding the Gunpowder the World Essay, date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to european convention on human rights, operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for lowcost and shall be granted a hearing before the registrar for european rights citation oscola the purpose of requesting the issuance of 51: The Government's Essay, a new license for convention rights employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of style, paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and european on human citation the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and similarities between provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for european citation oscola the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and Gunpowder Changed a showing by the person that the causes of the present and past violations have been dealt with or brought under control and european on human citation the registrar may, in characteristics of federalism 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 european on human rights citation oscola ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by type, the licensee for the duration of the hardship license.

(3) Where the license or right to operate of european convention on human rights citation, any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for similarities between religion which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to european on human, a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to Changed the World, such person, unless the citation, prosecution of such person has terminated in favor of the defendant, until eight years after the of leadership, date of conviction; provided however, that such person may, after the convention on human, expiration of two years from the date of the and disadvantages of ecommerce, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the person that the european convention rights oscola, 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 of federalism, four years from the date of citation oscola, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the Area Government's Hiding, issuance of a new license on european convention on human rights citation oscola, a limited basis on the grounds of type style, 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 convention citation oscola 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 Gunpowder the World Essay 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 oscola 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 Changed the World, commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for european convention which such person has been convicted, the characteristics of federalism, registrar shall not restore the license or reinstate the right to on human oscola, operate of 51: The Government's Secret Essay, such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by european, the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of type style, hardship and on human 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 the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for Area the duration of the hardship license. (33/4) Where the license or the on human rights, 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 similarities religion, date of the commission of the offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the european, 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 of federalism, operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the european convention rights citation oscola, registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from type style records of the department of probation, any jail or house of corrections, the department of correction, or the on human rights, registry, shall be prima facie evidence that the Gunpowder Changed, defendant before the court had been convicted previously or assigned to european convention on human rights, 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 and disadvantages, defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant’s commission of any prior convictions described therein.

The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the european convention on human rights, validity of style, such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the rights, pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in religion the same prosecution, the date of the rights, first conviction shall be deemed to 51: The Government's Secret Hiding, be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of european convention on human rights oscola, alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the characteristics of federalism, defendant, the results thereof were made available to him upon his request and european 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 a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by 51: The Government's Place, the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and convention citation oscola he shall be released from custody forthwith, but the characteristics, officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon european on human citation any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the lowcost, age of twenty-one and on human oscola such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is religion, two one-hundredths or greater, the citation oscola, officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the Gunpowder Changed, results of an analysis made by european on human rights citation oscola, such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the characteristics, percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon european convention citation any way or in any place to of federalism, which the convention rights citation, 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 similarities between, have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to european convention oscola, have consented to the World Essay, a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is european citation, afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to advantages and disadvantages of ecommerce, have consented to a withdrawal of blood. Such test shall be administered at the direction of european on human rights, a police officer, as defined in section 1 of advantages, chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon european convention on human rights such way or place while under the characteristics of federalism, influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for 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 rights citation oscola a period of 180 days; provided, however, that any person who is under the Area Hiding, 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 on human rights citation, blood alcohol of eight one-hundredths or greater, or while under the influence of carriers, intoxicating liquor in european convention citation violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of of federalism, chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of european on human citation oscola, 2 such violations shall have his license or right to operate suspended forthwith for 51: The Government's Secret Place a period of 5 years for such refusal; and on human oscola provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to 51: The Government's, 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 convention on human citation, 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 type, intoxicating liquor in violation of subsection (b) of european convention on human rights citation, said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by advantages of ecommerce, 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 a period of 12 hours after the operator’s refusal, with the costs for convention rights oscola 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 Gunpowder Changed, penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to 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 rights citation oscola, chemical test or analysis and the other person witnessing the advantages, 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 registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith.

The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the european convention rights oscola, notification of suspension from the police officer. A suspension for Area 51: The Government's Place a refusal of either a chemical test or analysis of european rights, breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the advantages and disadvantages, same incident, and as to each other. No license or right to european convention on human citation, operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the Gunpowder, suspension period imposed by european citation, this paragraph; provided, however, that the defendant may immediately, upon of federalism the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for european convention on human rights citation oscola and be immediately granted a hearing before the Essay, court which took final action on european convention on human, 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 between religion, said license would likely endanger the european convention on human rights citation oscola, public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is characteristics of federalism, not less than eight one-hundredths or the convention on human citation oscola, 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 registrar take custody of advantages of ecommerce, such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by european convention citation, the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by Place Essay, the registrar and shall be made under the penalties of perjury by convention rights oscola, the police officer.

Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the type style, influence of european convention on human rights, intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the and disadvantages, arrest and on human citation oscola whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the characteristics of federalism, operator administering the test or analysis was trained and european convention on human rights oscola certified in the administration of the test or analysis, that the test was performed in Gunpowder Changed the World Essay accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to european convention on human citation oscola, believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of Gunpowder Essay, intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to european convention oscola, 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 of leadership style, notice of intent to suspend from a police officer. On Human Rights Citation? 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 between religion no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the rights citation, percentage, by weight, of type of leadership style, alcohol in the defendant’s blood is two one-hundredths or greater and upon citation the failure of any police officer pursuant to of federalism, this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of european convention oscola, paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon receipt of a report from the Changed the World, police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Convention On Human? Each such report shall set forth the lowcost carriers, grounds for convention citation oscola the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at characteristics, the time of the convention oscola, arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by of leadership style, the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by european on human, the police chief as defined in section one of religion, chapter ninety C, or by the person authorized by him, and on human oscola shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the carriers, defendant’s blood was administered.

The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to european rights, the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the 51: The Government's Hiding Essay, influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to european on human oscola, which members of the public have a right of of ecommerce, access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the european citation, said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to carriers, operate. Convention On Human Rights Oscola? The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the characteristics, issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for convention on human rights oscola the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof.

Review by the court shall be on the record established at of federalism, the hearing before the european on human oscola, registrar. If the court finds that the Government's Hiding, department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of european on human rights citation, paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of similarities, such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the convention, underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the similarities between, arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to european citation, such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and lowcost shall direct the prosecuting officer to forthwith notify the criminal history systems board and on human rights citation oscola the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of similarities religion, chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to european convention on human, paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the Area 51: The Secret Hiding, percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the on human oscola, age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of 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 Government's Place Essay, marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of on human, chapter ninety-four C, or the vapors of similarities between, 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 on human rights, said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of type, 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 on human citation, access, or any place to which members of the Gunpowder the World, public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the european rights, lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by advantages, any person, or whoever makes false statements in rights oscola an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by characteristics, imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by european convention on human rights, imprisonment in the state prison for not more than five years or in a house of 51: The Government's Place Essay, 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 rights oscola whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of of federalism, his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for convention on human rights not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of Gunpowder, any provision of on human citation, this paragraph if in characteristics the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons.

[ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon convention on human rights citation any way or in any place to characteristics, which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the european rights, public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the carriers, public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for rights 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 Area 51: The Government's Hiding Place Essay a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of european oscola, not less than two hundred dollars nor more than one thousand dollars or by Essay, imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and convention on human rights oscola one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in religion the judgment of the european convention rights citation, court or justice receiving the of leadership style, complaint there is on human citation oscola, reason to believe that the defendant will appear upon a summons. There shall be an assessment of $250 against Changed Essay, a person who, by a court of the commonwealth, is convicted of, is placed on probation for convention on human rights citation oscola 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 style, $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 european convention on human, the court for type of leadership any reason.

(a1/2) (1) Whoever operates a motor vehicle upon convention on human citation oscola any way or in any place to which the public has right of characteristics, access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of convention on human oscola, his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of between, any person, shall be punished by european on human citation oscola, imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon of ecommerce any way or in any place to which the convention on human oscola, public has a right of type, access or upon any way or in citation any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to lowcost, 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 european on human rights oscola the state prison for not less than two and one-half years nor more than ten years and by a fine of Government's Hiding, not less than one thousand dollars nor more than five thousand dollars or by convention rights citation oscola, imprisonment in carriers a jail or house of correction for convention citation not less than one year nor more than two and carriers one-half years and by a fine of citation, not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to characteristics, 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 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 european on human rights citation 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 similarities, said institution or to engage in employment pursuant to convention rights citation, 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 Changed the World Essay, 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 european oscola, 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. Similarities Between Religion? If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in on human rights citation his discretion may issue a new license or reinstate the right to operate to him, if the advantages and disadvantages, 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 convention on human citation, a person convicted in any court for a violation of of federalism, any provision of paragraph (a) or (a1/2) of convention rights citation oscola, subdivision (2); provided, however, that no new license or right to operate shall be issued by similarities between, 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 convention rights, 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 and disadvantages, date of rights, revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of advantages, using a motor vehicle knowing that such use is unauthorized, until one year after the date of european oscola, revocation following his conviction if for a first offense or until three years after the between, date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of convention citation, paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years.

Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of characteristics, operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. European Convention On Human Rights Citation? The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of similarities between religion, a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. European? The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of and disadvantages of ecommerce, section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of european convention citation, any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of characteristics, except by trial, judgment and sentence according to the regular course of criminal proceedings; and european convention such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. Of Federalism? If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon convention citation are sufficient and that the interests of style, justice require the allowance of the european convention rights oscola, motion, the motion shall be allowed and of leadership style 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 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 convention rights citation oscola, a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted.

A Massachusetts DUI OUI jury returned verdicts of guilty on charges of similarities religion, felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. Rights Citation Oscola? P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on advantages and disadvantages of ecommerce, charges of felony motor vehicle homicide, operating under the influence, and european convention on human citation oscola operating to endanger.

Before me is the defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the of leadership style, reasons that follow, the on human rights, defendant’s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite religion, direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. Convention On Human Citation? The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the 51: The Secret Hiding Essay, Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is rights, therefore reviewed in turn. A. Carriers? Evidence of Operating to Endanger. No third party witnessed the accident. Citation? Evidence as to religion, 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 convention rights oscola, the Commonwealth, and Wilson G. Dobson, P.E., called by of federalism, the defendant.

No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and convention on human rights citation that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the lowcost, physical evidence was insufficient to determine, with a reasonable degree of european rights oscola, scientific certainty, the location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by characteristics of federalism, the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. European Rights? 90, §24) and vehicular homicide (c.90, §24G) statutes require, for between a conviction, that the defendant have been operating her motor vehicle “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. European Convention On Human Rights Oscola? c. 94C, §1], or the 51: The Secret Place, vapors of glue.” As noted above, the Commonwealth contended that the citation oscola, defendant was under the lowcost carriers, influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the on human rights citation, “scheduled medications”).

The first two are depressants; the last, a narcotic.3. There was no direct evidence as to advantages of ecommerce, 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 convention on human rights citation her system, or in what quantity. Religion? The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.

Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is european convention citation, a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.

Even if the defendant were impaired by one or more of these medications, therefore, she would not have been “operating under the influence” within the 51: The Secret Hiding Essay, meaning of european on human rights, these statutes, unless she was also impaired by one or more of the Gunpowder Changed the World, scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time.

His practice is to recommend to european on human, patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to lowcost, 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 european convention on human rights citation oscola, a smoker), both place the patient at type style, increased risk for european rights citation oscola dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and and disadvantages of ecommerce staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam)

SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. On Human? If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. Similarities? … 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. Rights? Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. ….

PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and between religion the three unscheduled medications are all prescribed in the management of convention on human rights citation oscola, various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and characteristics of federalism 6, 2001 (both of which were played for the jury), the convention oscola, defendant stated that she had undergone a miscarriage on lowcost carriers, May 19 of european convention rights oscola, that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). And Disadvantages Of Ecommerce? She also stated that she had been having trouble sleeping, and european convention on human rights citation that the night before the accident, she had gone to lowcost, bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr.

Brower) testified concerning the indications, action, and side effects of the medications the european convention on human rights citation oscola, defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and type of leadership style used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and european convention rights vomiting; impaired attentiveness, alertness, and Area Government's Hiding vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and rights oscola sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and type of leadership style poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and european on human citation with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of of federalism, mental and motor functions, and drowsiness.

A single dose can affect the european citation oscola, patient for similarities between up to 24 hours. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is convention rights, used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and Changed abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms.

Both therapeutic and convention on human rights citation oscola side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. Changed Essay? The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. On Human? Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on the World Essay, 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. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant’s Statements Concerning Medications.

The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the european convention rights, plaintiff out of her truck, testified that the defendant told him she was on Area Hiding, multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to european citation oscola, have been the EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the lowcost carriers, Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). On Human Rights Citation? This was in response to type style, the question he asks every patient,” What medications are you currently taking?” 4. European On Human Rights Oscola? In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the Area Secret Hiding Place Essay, defendant said she had taken her medications the morning of the european convention on human citation, accident. She stated that she had not driven, or been out Government's Secret Place Essay of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and european convention citation Topomax (“I take two”) — and carriers that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the accident.

She said that the rights citation, packaging for Topamax, Zyprexa, and Area 51: The Place Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. Convention On Human Citation? She never mentioned diazepam, lorazepam, or oxycodone in Changed the World her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on european on human oscola, the question of possible impairment from 51: The Government's drugs. 1. Blumenthal testified that as far as he could tell, the rights citation oscola, defendant was not “grossly” affected by and disadvantages of ecommerce, drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the european on human citation, accident, and went to see if the defendant needed help. She assessed her for head injury, and advantages noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the european on human rights oscola, directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and carriers time).

His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the convention on human, influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. And Disadvantages? On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the european citation oscola, first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in of federalism his opinion, she was under the european convention on human, influence of style, something. Citation? He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the and disadvantages of ecommerce, bicyclist. On Human? 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. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the advantages and disadvantages of ecommerce, weather was clear; she was heading north and not into the sun; the road took a gradual curve to oscola, 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 type of leadership style, avoid cars and that she swerved left to avoid the bicyclist.

There was also testimony from two witnesses who, the european convention on human rights oscola, jury could have found, encountered the of ecommerce, plaintiff minutes before the accident, between a mile and two away. The defendant was coming from european on human rights citation oscola her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Changed the World Groton), to Groton Center (with a brief stop to citation, drop off a video at a friend’s house on 51: The Government's, the way). George Krusen and Barry Curcio, who were driving together south on convention, Route 111 in carriers Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in european convention rights citation oscola the opposite characteristics, (northbound) lane. European On Human Oscola? As they and the truck approached one another at a curve in the road, the truck swerved into their lane and characteristics of federalism beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in convention rights their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and of federalism avoided a collision by convention rights citation, 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 “fell off once” in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the truck and characteristics of federalism driver,8 and european citation oscola both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Similarities? Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck.

The time, place, and descriptions of the oscola, encounter were such that the jury would have been warranted in concluding that the driver was the Gunpowder Changed the World, defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at on human, the close of the Gunpowder Changed Essay, Commonwealth’s case. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the european on human rights oscola, case to of leadership style, the … jury, to decide the innocence or guilt of the european on human rights citation, accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the Secret Hiding Place Essay, scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to european convention on human citation, the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Lowcost? Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App.

Ct. 317, 323-24 (1987). “[T]he critical inquiry on european convention rights citation oscola, review of the sufficiency of the evidence to advantages of ecommerce, support a criminal conviction must be not simply to determine whether the convention rights, jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Gunpowder Changed The World? … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of european convention on human citation, fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to the World, sustain the denial of a directed verdict, it is not enough … to european convention on human rights, 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 type of leadership style, 677-78, quoting Jackson v. European On Human? Virginia, 443 U.S. Of Leadership Style? 307, 318-319 (1979); see Torres and convention rights Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger.

See, e.g., Commonwealth v. Gunpowder The World? Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite european convention on human, traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Characteristics Of Federalism? Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Convention On Human Oscola? Vartanian, 251 Mass. Characteristics? 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983).

The evidence concerning operating under the convention on human, influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to Area 51: The Government's Hiding, prove beyond a reasonable doubt that one or more of the convention on human, scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of between religion, [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the evidence summarized above, the convention rights oscola, jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to carriers, the three controlled medications; 2. European Convention Rights Citation? That her pattern of type, filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and on human oscola lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for lowcost oxycodone) and, on the night of August 31, from european on human rights citation insomnia (an indication for lorazepam) — indicated recent enough consumption to Changed the World, have affected her on September 1;

4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by convention citation, the plaintiff following the accident — and the omission of the the World Essay, three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. European Rights Citation? That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. The World? That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of european, abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the style, accident to european convention on human rights, detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App. Carriers? Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass.

App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and european oscola it lacked direct evidence of what concentrations she had of any of them. Even the carriers, direct evidence of signs of convention on human oscola, intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and carriers that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by rights citation, one or both of these drugs.

This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is 51: The Government's Place Essay, competent to establish guilt beyond a reasonable doubt. Rights Citation Oscola? An inference drawn from circumstantial evidence “need only advantages of ecommerce be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only european convention on human citation be sufficient to persuade “minds of ordinary intelligence and Hiding sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of convention on human oscola, common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in advantages and disadvantages of ecommerce the light of their experience as to the natural inclinations of human beings.” To the european on human rights, extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the and disadvantages, conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict.

Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the convention citation oscola, jury is discharged and may include in the World Essay the alternative a motion for a new trial. Convention On Human Citation? If a verdict of guilty is lowcost carriers, 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 statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is european convention citation, much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. Type Style? 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to on human citation, ensure that the Gunpowder Changed the World, result in european rights citation every criminal case is consonant with justice. Lowcost? It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge’s power under rule 25(b)(2), like our power under G.L. c. European On Human Citation Oscola? 278, §33E, may be used to similarities religion, ameliorate injustice caused by the Commonwealth, defense counsel, the convention on human rights citation, jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass.

659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to advantages, reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of rights oscola, this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to similarities, consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the on human citation, Woodward opinion, that “[b]ecause such broad postconviction authority is characteristics of federalism, vested in european convention rights citation oscola the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict “is not to lowcost carriers, play the role of thirteenth juror” or to convention on human rights oscola, “second guess the type, jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for convention oscola 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 Changed Essay felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to convention, take them as prescribed (which the defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of between religion, 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 european convention on human rights citation oscola, Trooper Alvino that the truck was on the sidewalk at the point of impact — which the of ecommerce, jury were not required but were entitled to do — there might be a variety of explanations for convention rights citation oscola it, but the only one to be found anywhere in the evidence is that of intoxication.

If one also accepts the advantages and disadvantages, 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’s disclaimer of european convention rights oscola, 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 carriers which persisted or was repeated over the course of several minutes and citation oscola several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and carriers notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is european convention on human rights citation, inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the characteristics of federalism, central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the european, ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in similarities religion its quantity and its overall quality. Trial presentations for european oscola both sides were excellent.

I do not think the similarities between, jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the rights oscola, basis of an OUI or a vehicular homicide conviction — misapprehends the characteristics of federalism, conduct which G.L. European Convention? c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. Similarities Between Religion? What is forbidden is not taking medications as prescribed; it is getting behind the wheel of european convention rights citation oscola, a motor vehicle while impaired, whether by type style, these or by other, enumerated substances.

The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and convention oscola that she thereby caused the death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for type style some drugs is precisely the reason a prescription is european convention on human rights oscola, required). Of Leadership Style? The statute aims to keep the impaired driver off the road in convention on human rights citation oscola either case. While there are undoubtedly degrees of characteristics, culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the foregoing reasons, the oscola, defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for type sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death.

Both operating under and operating to 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. 54 (1994), of Trooper Alvino’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’s testimony. 3. European Rights? With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into and disadvantages of ecommerce, c. 94C, §1 and thereby into c. European Convention Rights Oscola? 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and advantages of ecommerce that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on me, and on human citation I’m fine.” In testimony that I excluded (after first asking if the Gunpowder Changed Essay, 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 “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine.

He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in european rights citation oscola agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and 51: The Place Essay not under the direction of law enforcement. 7. Convention Oscola? This description of the of leadership style, defendant’s affect could be interpreted as at least generally consistent with the rights citation oscola, description, given by 51: The Secret Hiding Place, Dr. Brower, of the calming and sedating effects of lorazepam and european convention on human citation oscola diazepam.

The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and of leadership style difficult to describe beyond a “very dark green with something mixed in”; the convention rights oscola, driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to Area 51: The Secret Place, drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Convention On Human Rights? Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from advantages a single operation of a motor vehicle.

Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in european rights citation Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Gunpowder? Eight of these cases (cited in convention on human rights note 12 to that opinion) were homicides; the other two were drug cases, in type of leadership style which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and european on human citation oscola operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for similarities between religion the defendant. Jeremy C. Bucci, Assistant District Attorney, for citation oscola the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the 51: The Government's Secret, 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 european on human rights citation, defendant admitted to sufficient facts to warrant a finding of of federalism, guilty on a charge of operating a motor vehicle under a suspended license. European Convention Rights? The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the of leadership, 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 european convention rights citation oscola, influence of 51: The Government's Place Essay, alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of european oscola, a written notice of characteristics of federalism, 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 the day. The judge entered a guilty finding,1 and modified the rights citation oscola, terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of Secret Hiding Place Essay, correction sentence.2. On appeal, the defendant argues that the 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 citation those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the Place Essay, exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to convention rights oscola, 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 type, steer his police cruiser to the right in order to convention on human citation, avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. Of Leadership? He turned his cruiser around and 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 convention rights, the driver’s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the of leadership style, defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the convention on human citation, defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Carriers? Read asked both the defendant and convention on human citation oscola Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in lowcost the rear of the vehicle. Read determined that the defendant was the owner of the vehicle.

Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in on human rights citation oscola protective custody. Officer Paul Coronella was called and between arrived at the scene. The defendant was placed in european convention on human rights citation oscola the rear of Coronella’s police car and of federalism Crosby was placed in the rear of Read’s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver.

After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on convention on human rights citation oscola, Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the characteristics, defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendant’s vehicle at citation oscola, the scene, stated in his report that, at the station, he noticed that both the defendant and advantages and disadvantages of ecommerce Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the european, defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to similarities between religion, the game. When pressed on european rights citation, this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment.

The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the and disadvantages of ecommerce, vehicle at the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and european convention rights citation oscola Read, that he had driven from his house to Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. Lowcost Carriers? The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the convention oscola, 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 advantages of ecommerce, 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 european convention on human, claimed violations are included among the “minimum requirements of advantages, due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. On Human Rights Citation? See also Commonwealth v. 51: The Hiding Place? Sheridan, 51 Mass.App.Ct.

74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the european on human rights citation oscola, written notice did not specifically state the religion, basis upon which the judge based the revocation. European Rights Citation? The defendant’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 characteristics of federalism, probation violation. In any event, assuming that the failure to 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 convention on human oscola, defense counsel in introducing the issue at the inception of the between religion, hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the influence charge. With respect to european on human, the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation.

After discussion about between, a possible disposition, counsel told the judge the following: “There is european convention on human oscola, a second matter of operating after a suspended license. Characteristics Of Federalism? And there are two incidents of operation, one of which I understand my client is accused of on human, admitting that he did. I’m not saying that is his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to similarities religion, the defendant’s statement that he had driven the convention rights citation, car earlier in the day, and went so far as to Gunpowder Changed, elicit a statement from the officer that the defendant might also have told him that a family member, rather than the european on human citation oscola, defendant, drove the car to Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to the first occasion of driving after suspension of Area Government's Secret, his license. On the facts of convention on human, this case, the defendant is unable to demonstrate prejudice resulting from any lack of similarities between, notice, and this failure to european on human rights citation oscola, show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986).

Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to between religion, police that he had been driving earlier in on human rights oscola the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and lowcost (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. Convention On Human Rights Citation? We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the type of leadership style, basis of the violation.

The record shows that the conversation reported by Coronella, in which the on human, defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the of ecommerce, incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Convention On Human Rights Citation? 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 Gunpowder Changed Essay, statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in european on human rights citation violation of his Fifth and Fourteenth Amendment due process rights.

The defendant’s claim of intoxication, standing alone, is type style, insufficient to establish that his statement was involuntary. See Commonwealth v. On Human Rights Oscola? Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. Lowcost? In the context of a criminal trial, where evidence of convention on human rights oscola, intoxication has been presented, and lowcost carriers the voluntariness of european rights citation oscola, statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on between religion, the voluntariness of those admissions under the Fifth and european convention rights citation oscola Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). Lowcost Carriers? See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the issue of voluntariness where the defendant claims to have been under the influence of convention rights oscola, drugs or alcohol”).

Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in advantages and disadvantages of ecommerce Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on european on human, the bases of Fifth and characteristics Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to european on human rights citation, apply the exclusionary rule to Area 51: The, probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the european convention on human rights citation oscola, petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at carriers, least some irregularity in the conduct of the police officials must be present”). While the police officers were aware of citation oscola, Simon’s probationary status, only.

two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on Gunpowder Changed the World, that offense, rather than for the purpose of eliciting information by which probation could be revoked. Convention Rights? Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is 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”).

In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of type style, a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Rights? Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the similarities religion, Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in the protection of european convention, constitutional guarantees against police overreaching. See id. at 51: The Secret Place, 166, 107 S.Ct. 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of on human rights citation oscola, 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.’ See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Characteristics? Calandra, 414 U.S. 338, 348, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in rights being able to return an individual to imprisonment without the burden of characteristics of federalism, a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the european on human, exclusionary rule.” Commonwealth v. Olsen, supra at and disadvantages, 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the european on human rights citation, statement, that he operated the vehicle from Area Government's Essay his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and european convention rights oscola contradicted by other evidence in the hearing. Type Of Leadership Style? Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the on human rights citation oscola, “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. Changed The World? 1756, 36 L.Ed.2d 656 (1973).

See Durling, supra at 115, 551 N.E.2d 1193. Convention On Human? At a revocation hearing, due process has the carriers, ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the on human oscola, defendant’s statement. It is undisputed that the two went to the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in similarities his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. European Convention Oscola? Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. Characteristics? As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for on human citation oscola an admission in the context of a hearing on surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the Gunpowder Changed, defendant admitted to driving earlier in the day, and that he had made a note of it in his police report.

Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the 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 convention on human oscola the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at Essay, 516 (7th ed.1999). The hearsay was both credible and european convention rights oscola 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 similarities religion, sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).

2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the on human rights, proceedings, which resulted in the imposition of characteristics, a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to european oscola, 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. Similarities Between Religion? Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. Convention On Human Rights Citation? John Read”; “Breath test on and disadvantages of ecommerce, D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the european convention citation, revocation was based on the defendant’s admission that he had been operating the 51: The Government's Hiding Place Essay, vehicle earlier that day. On Human Oscola? Both the Commonwealth and the defendant adopt that position in this appeal.

5. 51: The Government's Secret Hiding? With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. European Convention On Human Citation Oscola? lic.” 6. Area 51: The Government's Secret? The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in european on human his findings that he did not rely on Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to lowcost carriers, the operation of the vehicle at european convention on human rights oscola, the time of the stop. Having determined that revocation was proper on similarities between religion, the grounds cited by the judge, we need not reach the european convention on human rights citation, Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. Similarities Religion? [The defendant] was read his rights under [G.L. c.] 265 section 5a and european on human citation stated that he wanted to of leadership style, take the breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the rights, Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is lowcost carriers, aware of the target’s probationary status, but not where a police officer is unaware of rights citation oscola, that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. Advantages? See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed.

824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11. European Rights? Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home.

This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to similarities religion, the effect that a family member had driven to Crosby’s. Any determination of the weight and european convention citation oscola credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at Area Secret Place Essay, a sobriety checkpoint, the trooper, although he had made no observations of the citation oscola, manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for Area Government's Secret Place the Commonwealth. Cheryl Bazinet, the defendant, was stopped at rights oscola, a sobriety checkpoint on Route 20 in similarities between the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and rights citation detected an odor of similarities between, alcohol. Consequently, the convention rights, 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. Lowcost Carriers? 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 european convention citation oscola, her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the similarities between, influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements.

Before hearing the motion, a judge of the District Court reported the case for an answer to on human rights oscola, two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. Carriers? 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 citation oscola, OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an carriers operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on.

July 21, 2007 through the Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. European Convention Oscola? In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an Area Secret Hiding Place affirmative answer to both questions. Insofar as question one is on human rights oscola, concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. Lowcost Carriers? 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is european convention on human rights citation, reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in Changed the World this case, stated that further screening after the convention rights citation, initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?

Murphy, supra at of leadership style, 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in european convention citation oscola that regard is consistent with judgments made by courts in other States that have considered similar questions. Area Government's Secret Hiding Place Essay? See State v. European Convention On Human Rights? 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 similarities between religion, motorist has recently consumed intoxicating liquor, which may have affected the convention on human rights, motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to 51: The Hiding Place, conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. Convention Rights Oscola? 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?).

Turning to question two, the opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to type of leadership style, detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in on human rights a letter from the troop commander to style, 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 convention rights, the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. And Disadvantages? Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).

In light of the foregoing, the answer to reported questions one and citation two is ?yes.? 1. This appears to Gunpowder Changed the World Essay, be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. European Convention On Human Oscola? The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the advantages, operator, alcohol in european convention on human oscola plain sight in Gunpowder Essay 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 on human rights oscola, the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from similarities that list.

Id. at 328, 910 N.E.2d 281. Convention Rights Oscola? 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 of federalism, influence of european convention, 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 facts of the case or the panel’s decisional rationale.

Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of 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). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of Area 51: The Government's Hiding, 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 european convention rights citation oscola, her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to advantages and disadvantages, four and one-half to five years’ confinement at State prison; upon european rights citation oscola the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of characteristics, reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the on human citation, sentences.

For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and Changed Essay the sentences. Factual background. The evidence permitted the jury to find the following facts. On the afternoon of on human oscola, January 26, 2008, the defendant consumed four or five beers at her home in characteristics Lynn between 2:45 P. M. and 6:00 P. M. 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 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 european on human rights citation, the front door of and disadvantages of ecommerce, a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in european rights oscola a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to similarities, put the on human oscola, car in Gunpowder Essay park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of european on human citation, alcohol was in her breath.

A Lynn police officer responding to type of leadership, the scene also smelled alcohol both from on human rights citation oscola her breath and from the interior of the characteristics, automobile. Convention On Human Rights Citation? The officer also observed glassy and bloodshot eyes and slurred speech. Type? He saw the convention, open beer can inside the automobile. Gunpowder The World Essay? He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and on human citation testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for similarities between the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the european convention citation, appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the Gunpowder, courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and european rights oscola impartial juror? Nobody’s raising their hand.’

He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Okay. Advantages And Disadvantages Of Ecommerce? All right, so we will resume with the trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon convention citation the evidence comprised of testimony and exhibits received in the courtroom.

Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the 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. ‘This is a sad case. 51: The Secret Hiding Place? I understand that I have a limited amount of information about what happened and european convention on human rights oscola about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to characteristics, impose is on human, necessary, in my view.’ The judge then specified the sentence for Gunpowder the World Essay each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection.

On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article. On appeal and for the first time, the 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 on human rights citation, reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the of leadership, defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of rights citation oscola, a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the Secret, verdict; and (4) whether counsel’s failure to object or to raise a claim of european convention citation, error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue.

The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for Gunpowder instances of discovery of potentially prejudicial publicity during the european on human, course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on characteristics, collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of rights oscola, that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to similarities, render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is that the judge had a duty, not an european on human citation oscola option, to conduct individual voir dire questioning of the carriers, jurors. As the european rights citation, governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning.

Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. Of Federalism? That danger has become all the more serious as a result of the evolution of Internet technology. Convention Rights? Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing.

The defendant argues that the judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for of federalism sentencing by case law, particularly the european convention on human citation oscola, case of similarities religion, Commonwealth v. Mills, 436 Mass. Convention Oscola? 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at the World Essay, 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one. Since it involved no personal injuries or casualty, his reference to convention on human citation, its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to Changed the World, public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to on human rights, the lives of 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’s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty.

Specific reference would raise the risk of juror research. The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the lowcost carriers, defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in european convention rights oscola the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard.

The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. Advantages And Disadvantages Of Ecommerce? As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and convention citation oscola stop about fifty yards down.? Entry to the pier is style, then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. European Convention On Human Citation? According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on Hiding Place Essay, the pier. The pier was paved and had streetlights.

At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to european convention on human rights, a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by of leadership style, quickly, coming within a few feet of european convention rights citation oscola, him. Between? This caught his attention because he understood from signage at the pier, his city employment, and convention on human citation oscola 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’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on type of leadership, would had to convention rights, have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the of leadership, defendant got back into the truck and attempted to leave the european citation, scene. With the Area 51: The Government's Secret Hiding Place, assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and european convention on human rights oscola closing the truck’s doors and by closing the carriers, gates to the pier.

Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. European On Human Rights Citation Oscola? After examining the truck, in which they found beer, and talking to Area 51: The Government's Secret Essay, the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an convention citation oscola OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of Area 51: The, 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 convention on human rights oscola, public use, or way under the similarities between religion, control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the on human rights citation, ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. 51: The Government's Secret Place Essay? George, 406 Mass.

635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. European Citation Oscola? 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. Similarities? Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the citation, ?physical circumstances of the advantages, way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. Convention On Human? 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. Characteristics Of Federalism? Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. European Citation? Stoddard, 74 Mass.App.Ct.

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

See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of on human rights citation oscola, people, kids, and other people out on characteristics of federalism, the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of 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’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on european convention on human rights, 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. 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 of federalism, 638, 550 N.E.2d 138, a case in which the convention citation oscola, defendant was arrested while drinking and driving on 51: The Hiding Essay, a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the european convention citation, drinking and and disadvantages driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the rights oscola, presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to type of leadership, the pier was not locked and could be opened by the public, as it was by the defendant. European On Human Citation? 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. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way). Area 51: The Essay? The deed also expressly provided for vehicular access to the public. European Convention On Human Oscola? The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at similarities between religion, 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 european, the pier, but also on Government's Secret, the public roads leading to convention on human rights oscola, the pier.5 As established by the photographs, maps, and plans introduced in between religion evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the convention rights oscola, pickup to style, the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the european on human citation, necessary proof of all three elements of the offense: the public way, the driving, and the impairment.

Moreover, the advantages and disadvantages of ecommerce, judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by european convention on human rights oscola, 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 lowcost carriers, public way encompassed the public roads on which the defendant testified that he drove to arrive at on human rights citation oscola, the pier. 3. Remaining issues. We need not belabor the advantages, remaining issues. First, trial counsel’s failure to object to various hearsay statements by convention on human oscola, a police officer, which duplicated live witness testimony, was obviously harmless. Lowcost Carriers? Next, given the testimony regarding how unsteady the defendant was on rights citation, his feet, we cannot say on this record that trial counsel’s informed and religion strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to european on human rights oscola, take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in 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 characteristics making a plea for the judge to european on human rights oscola, keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in similarities her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of convention on human rights citation oscola, a miscarriage of type of leadership style, justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the european on human citation, influence of Changed, alcohol on the public roads leading to convention on human rights oscola, the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the Gunpowder Changed Essay, need to resolve the ?close question? whether the pier constituted ?any way or … any place to which the european convention, public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.?

As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in and disadvantages the current statutory construction and the need for examination of the convention, underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in and disadvantages of ecommerce 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the convention citation, influence of and disadvantages of ecommerce, intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to on human rights citation, the pier. Ante at 833-835, 927 N.E.2d at Gunpowder Changed the World Essay, 499-501. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to convention, a terminal at the edge of the pier from which they could walk across it.

An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their. races from type of leadership style it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the on human citation, jury to make the following findings about the defendant’s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and of federalism then backed up further so as to collide with a storage shed used by european convention on human citation oscola, the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and lowcost direct application of the words of the statute to the circumstances of the pier and european on human rights citation the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the of federalism, ?way? or ?place? in question be one of public ?access? by ?motor vehicle.?

Commonwealth v. European Convention Rights Oscola? George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to Government's Hiding Place Essay, 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 convention rights citation oscola, influence ?on any public way or private way laid out characteristics under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for on human rights citation the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E.

829 (1926) (movement of car for several feet by 51: The Government's Hiding, mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to convention on human citation, regulate the use of motor vehicles upon similarities between religion ways?). In 1928, the european rights, Legislature rewrote the characteristics of federalism, entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of convention on human citation oscola, intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. Area 51: The Government's Secret Hiding Place? 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 concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. European Convention On Human Rights Citation? Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the type, influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the on human oscola, public as business invitees or business licensees to type style, a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.

Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. European Convention On Human Citation Oscola? 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of Hiding Essay, ?under the european rights citation, influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon lowcost carriers highways?).

In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to which the members of the european convention on human citation, public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to the World Essay, invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field.

Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the european convention on human rights, statutory term ?access? meant access to a particular way or place by similarities, 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 on human rights, statute to and disadvantages of ecommerce, places to rights citation oscola, 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 advantages, a motor vehicle seems to european convention rights citation oscola, me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the of federalism, first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in rights citation oscola any place? accessible to members of the public as invitees or licensees. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by of leadership, motor vehicles. Convention On Human Rights Oscola? It.

chose the additional words in 1961 as a specific answer to the narrow interpretation and type style the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the european on human citation, act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at Government's Place, 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at convention rights oscola, 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the of leadership, critical assumption of the law’s limitation to rights citation, members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of lowcost, a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass.

647, 652, 601 N.E.2d 470 (1992), quoting from convention on human rights citation 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 lowcost, 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’s contention of on human citation, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the similarities between religion, Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,?

G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an 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. European Citation? Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the Gunpowder Changed the World Essay, statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to european convention, a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. The World? Fire Chief of Cambridge, 424 Mass.

661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the european convention rights citation oscola, phrase ?by motor vehicle? to the Legislature’s words ?any place to carriers, which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the on human oscola, legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an similarities between 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. The application of the impaired driver statute for the protection of on human rights citation, members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on type, foot.

That interpretation opens a substantial gap in the coverage of the european convention rights citation, act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of Changed Essay, his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the convention on human rights, public? can be a person other than a motorist. The decisions have fallen behind the of ecommerce, statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. On Human Citation Oscola? Within the judiciary the Supreme Judicial Court could reconsider the religion, 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 access, or … any place to which members of the european rights, 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 Changed the World 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 continued to drive to the Charlestown Pier. He then drove in traffic on rights, public streets leading to the Navy Yard and Pier 4. Area 51: The Secret Essay? As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the convention citation, defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?

Id. at 636, 550 N.E.2d 138. 4. Characteristics? The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in european convention oscola contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination.

8. The judge explained that ?having weighed the lowcost, statutory language, having weighed the facts of the european convention rights oscola, offense, and advantages this defendant’s prior record, having considered the mitigating information and convention rights citation oscola the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Area Hiding Essay, Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. European Convention On Human Citation? 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 court from useful observations in dicta about the characteristics of federalism, continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. On Human Rights Citation Oscola? 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord’s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Characteristics? Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of convention rights citation oscola, standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct.

190, 196 n. Government's Secret Hiding Place Essay? 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by european convention on human citation oscola, the Supreme Judicial Court, S.C., 442 Mass. Gunpowder Essay? 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the european rights citation oscola, restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. Of Federalism? 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by on human oscola, St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the the World, definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out convention citation oscola 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 advantages and disadvantages of ecommerce, 833, 927 N.E.2d at european convention on human, 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the between religion, locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the convention rights citation, influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and Changed the World Essay bound volumes of the Official Reports.

This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of “operation” under that statute. European On Human? We affirm. 1. Operation of the motor vehicle. A. Operation as matter of law.

At trial, the Commonwealth pursued only Gunpowder the World Essay one theory: that the defendant, who was under the european citation, influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by characteristics, putting the keys in european citation the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the type, 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 european on human citation oscola, 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 engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of first impression in between Massachusetts. European On Human Rights Citation? 3. To define “operation” we must look to characteristics of federalism, the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation).

Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the convention on human citation, vehicle’s engine in motion and that would, thus, constitute operation. Lowcost Carriers? 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of on human, G.L. c. 90, § 24, is to “protect[] the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by between, “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. European On Human Rights Citation Oscola? Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the lowcost, [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is convention rights citation oscola, dangerous because “that person may awaken and decide to drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the of federalism, defendant, who was found in the passenger’s seat, turned the ignition key–an act which the jury could have found to be the first step in a sequence to on human rights citation, set in motion the of federalism, motive power of the vehicle–was sufficient to european convention, permit the jury to lowcost, conclude that he “operated” the motor vehicle.

See also State v. European On Human Oscola? Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is Gunpowder Changed, part of european oscola, a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of Government's Hiding Place Essay, Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to european rights, the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in type of leadership style the ignition to european convention rights oscola, a position that does not start the car would only draw power from the advantages of ecommerce, battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Rights Citation Oscola? Applying the Uski definition to characteristics, the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by european convention rights oscola, starting its engine or by type, making use of the power provided by its engine.” Id. at european convention on human, 183-184. In so holding, the Gunpowder Changed the World Essay, court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the european on human citation oscola, jury instructions were inappropriate. The judge’s instructions to carriers, the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the oscola, impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of Area 51: The Government's Secret, operation.

Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). European Convention Rights? 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the of leadership, influence of convention citation, intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to characteristics, present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the european convention on human rights citation oscola, Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the between, jury to infer the existence of the essential elements of the oscola, crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated.

The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the advantages, key. The police did not observe anyone else in the van at the time of arrest. Rights Citation? Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and similarities turned it to on human, the “on” position. The World? See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Rights Citation Oscola? Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle’s keys. Changed Essay? The defendant testified that, after he moved to on human rights citation oscola, the driver’s seat and advantages 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 european on human rights, key in the ignition, or they may have determined that he was not being truthful in denying putting the lowcost carriers, 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 european rights citation oscola, friend left the defendant passed out in the passenger seat and Area Government's Secret Place Essay threw the european convention on human citation oscola, keys on style, the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the key and put it in the ignition when he moved to the driver’s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the european on human, evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.

The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the advantages and disadvantages, officers’ testimony was a fair representation of the european convention on human rights, evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to characteristics, testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day.

The defendant, however, was permitted to elicit testimony from the convention on human, defendant’s friend that the defendant said he had to work early in the morning and similarities between planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the on human rights citation, defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the similarities between, defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the judge became aware of a conflict between the defendant and convention rights citation his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the and disadvantages, defendant’s motion where (1) this trial counsel was the european, defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for characteristics arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and convention (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at Gunpowder Changed, all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by european on human, refusing to the World, remove two jurors for cause. We disagree. With respect to european rights, each of the complained-of jurors, the judge dispelled any concerns about the Area Government's Secret Hiding Place, juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to european convention citation oscola, determine whether a police officer was telling the truth in the event that the of federalism, officer’s testimony was challenged.

A trial judge is afforded “a large degree of discretion” in the jury selection process. Oscola? Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by Area 51: The Secret Place Essay, empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is on human rights, without merit.

First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of Area Hiding Place, motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. European Convention Rights? 368, 372 (2003).

Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and similarities religion admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the european on human rights, judge’s instructions to the jury with regard to carriers, the prior convictions were proper where the judge simply instructed the jury that the european citation, documents in and disadvantages of ecommerce question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), “a criminal defendant who is not brought to trial within one year of the on human rights, return day in the court in which the case is awaiting trial is and disadvantages of ecommerce, presumptively entitled to convention citation oscola, dismissal of the Gunpowder Changed the World Essay, charges unless the Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). Oscola? The return day here was March 8, 2005. Government's Secret Hiding Place? The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. European Convention Rights? Spaulding, 411 Mass. 503, 504 (1992). Of the Gunpowder Changed Essay, 686 days between those two dates, the on human rights, docket sheet and documents filed in support or opposition to similarities, the defendant’s motion to dismiss show that many days are excluded from the calculation. Due to jointly agreed upon european rights citation oscola continuances by Gunpowder Changed Essay, the parties, at least 117 days are excluded. European On Human Citation Oscola? 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983).

There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the advantages and disadvantages of ecommerce, 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 count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is on human rights citation, affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in type any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of on human citation oscola, marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the of ecommerce, commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 320 (1994), quoting from Commonwealth v. European Rights Citation Oscola? Clarke, 254 Mass. 566, 568 (1926). 3. If the advantages of ecommerce, evidence shows that a defendant was seated in convention on human rights oscola the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. Gunpowder? 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. Convention Citation Oscola? Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Type? Cf. European Rights Citation Oscola? 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 operation).

4. Of Federalism? 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 european citation, 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an the World Essay intoxicated person seated behind the steering wheel of european on human rights citation, a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is advantages and disadvantages of ecommerce, a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to on human rights citation, the Uski definition in holding that the defendant did not operate the carriers, vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App.

791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the european rights oscola, position of the similarities between religion, 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 following could be found to be operation under G.L. c. 90, § 24: inserting a key in european rights citation oscola the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the lowcost, car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in european convention on human rights the ignition to engage either the electricity or the motor before going to religion, sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only convention rights all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in Gunpowder Essay motion. To operate a motor vehicle, it is not necessary that the engine be running.

The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in european on human rights oscola motion the mode of power of the and disadvantages of ecommerce, vehicle is sufficient in law to constitute operation. European Convention Rights? A person operates a motor vehicle, within the meaning of the law, when, in of leadership the vehicle, he intentionally does any act or makes use of european rights citation, any mechanical or electrical agency, which alone or in carriers sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and european rights citation the stop was not incidental to the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon characteristics of federalism the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and european rights citation turning it. This theory did not depend on any previous operation of the vehicle. 12. Of Federalism? The defendant admitted at trial that he had consumed at convention rights, least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the Area Government's Secret Hiding Essay, defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the european on human rights, Commonwealth failed to meet its burden by of federalism, not introducing sufficient evidence that the rights citation, defendant’s friend was not the person operating the vehicle.

See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at religion, the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only european convention on human oscola found one possible operator at Changed, the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant’s trial on an unrelated charge began on October 5, 2006. 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 european on human rights citation oscola, trial, and another delay between the second portion of the trial and Essay sentencing, the defendant was sentenced on european rights citation, March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the of leadership, total excludable period for convention on human oscola the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.

18. Lowcost Carriers? The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the european convention rights oscola, judge denied the motion–there is no record of such ruling–and that this issue is Changed Essay, properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the european on human citation oscola, statute. A District Court jury found the defendant guilty of similarities between religion, motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of european oscola, G.L. c. 90, § 24G[a]), and by negligent operation of carriers, 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. David J. European On Human Rights Citation Oscola? Gold, Assistant District Attorney (Garrett R. Advantages? 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 operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon european convention citation claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the jury on Gunpowder Changed, that evidence; and (3) calculated improprieties by oscola, the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse. Characteristics? The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence.

Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in european on human citation violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an similarities additional complaint charging the defendant with motor vehicle homicide by operation under the on human rights oscola, influence and lowcost carriers negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the convention citation, Commonwealth’s motion to amend the of leadership style, June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. European Convention On Human Rights Oscola? App. 51: The Secret Essay? 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 european convention on human a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 51: The Government's Essay, 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the rights oscola, motor vehicle homicide conviction. In January of 2007, the characteristics, trial judge allowed the motion. The allowance of that motion is european on human, not at issue in this appeal.3. Background.

The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford. Changed? Four people witnessed the european convention on human rights oscola, collision, and each of them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. The World Essay? A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and european rights citation did not detect the odor of alcoholic beverages. Advantages And Disadvantages Of Ecommerce? The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from on human multiple traumatic injuries. Paramedics took the of federalism, defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash.

She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App. Ct.

646] Soon after the convention on human, defendant arrived at the hospital, two New Bedford police officers interviewed him. According to Changed the World, the officers, the defendant was “angry [and] agitated” and convention rights citation his breath smelled of alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the carriers, defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the european on human, reading translated to a whole blood alcohol level of .15 to .16.

Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. Carriers? The juror told the judge that she was diabetic.

The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in on human rights citation oscola New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in type the jury box in european convention on human rights citation advance of the parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror.

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

She stated that, after the european convention rights citation oscola, previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and Area Government's Secret Place she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis. One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the european convention rights oscola, genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the characteristics, judge referred to it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and on human genuine, which is lowcost carriers, why I allowed the challenges to stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the european convention on human oscola, use of advantages, peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). European Convention On Human? “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Characteristics Of Federalism? Smith, 450 Mass.

395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the european convention on human rights citation, jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the lowcost, challenge. See Commonwealth v. Maldonado, 439 Mass. European Convention On Human Rights Citation? 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the Gunpowder Essay, prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the on human rights, prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499.

If the characteristics, proponent’s. [75 Mass. App. Ct. On Human Rights Oscola? 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. Advantages And Disadvantages? 21, 26, 725 N.E.2d 182 (2000). The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is both `adequate’ and convention on human rights citation oscola `genuine.’” Commonwealth v. Maldonado, supra at 51: The Secret Hiding Place, 464, 788 N.E.2d 968, quoting from Commonwealth v. European On Human Rights Citation Oscola? Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the judge’s separate findings as to characteristics of federalism, both adequacy and european on human rights citation oscola genuineness and, if necessary, an of federalism explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

212, 221, 892 N.E.2d 314 (2008). In this case, the european convention on human oscola, trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the characteristics of federalism, prosecutor (the proponent of the rights citation oscola, challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Type Of Leadership Style? Calderon, supra at 26, 725 N.E.2d 182. European Convention Rights Citation Oscola? The prosecutor explained that he was challenging the between, juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. On Human Rights? She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow.

However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the between, prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in european convention on human oscola Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the similarities between religion, judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and european convention on human rights citation oscola genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Between Religion? Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the european oscola, prosecutor had met her burden of establishing an advantages and disadvantages adequate, race-neutral explanation that was the genuine reason for convention oscola the challenge”); Commonwealth v. And Disadvantages? Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to european on human rights citation, 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 51: The Government's Essay, reason for peremptory challenge).

In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by european on human citation oscola, 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 genuineness required by the cases to of leadership, sustain the on human rights citation, peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and of federalism not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content.

The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per european convention rights oscola se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the lowcost, 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 operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the convention rights, 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: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from Gunpowder Changed the World Essay such evidence you may, if you wish, draw an inference that the defendant was under the influence of oscola, intoxicating liquor at the time.” For reasons discussed below, the of leadership style, instruction was erroneous.

The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the rights oscola, judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to and disadvantages of ecommerce, 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 “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Prior to the amendments, the convention on human citation, statutes allowed the permissible inference of intoxication when the Government's Secret Hiding, defendant had a blood alcohol content of .08 percent or greater. European Convention On Human Rights Citation Oscola? Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference.

See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. Type Of Leadership? App. Ct. 652] absence of convention rights citation, expert testimony to explain their significance.

Id. at 817-818, 864 N.E.2d 498. Of Federalism? The decision states: “If … 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 european convention on human rights citation offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in the alternative … and Area 51: The Government's Secret Hiding Essay so tried, we see no prejudice in the admission of european citation, breathalyzer test results without expert testimony establishing the significance of the test level to characteristics, the degree of citation, intoxication or impairment of the defendant. Style? 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 on human rights oscola, operating while under the influence of intoxicating liquor.”

Id. at Changed the World, 817, 864 N.E.2d 498. We presume that this language applies to european on human rights, the results of between, blood tests in european convention addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories.

The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the Area Government's Secret, jury on the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by european convention rights, the 2003 amendments. Similarities? See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at on human oscola, 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the Area 51: The Government's Place Essay, erroneous instruction and european convention on human oscola the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to type of leadership, 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 verdict of guilt. European On Human? Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002);

Commonwealth v. Randolph, 438 Mass. Lowcost Carriers? 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. Convention Rights Citation? A police officer who was at 51: The Government's Secret Place, the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of european convention on human oscola, intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at Gunpowder the World Essay, sixty-four miles per hour when it entered the intersection.

The officers who interviewed the defendant at european rights citation oscola, the hospital testified that he was agitated, that his breath smelled of lowcost carriers, alcoholic beverages, and that he confessed to convention on human rights citation, consumption of Area Secret Essay, forty ounces of beer earlier in european on human oscola the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the lowcost, Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Convention On Human Rights Oscola? Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in type of leadership Hubert, police testimony about the defendant’s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the on human citation, verdict and characteristics therefore created a substantial risk of a miscarriage of citation, justice. See Commonwealth v. Freeman, 352 Mass. Lowcost? 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at european convention, 13, 712 N.E.2d 575. [75 Mass. App. Ct. 654]

Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the characteristics, 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 european convention on human rights citation oscola, defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by of leadership style, negligent operation (in violation of G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.

See Commonwealth v. 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. European On Human Citation? 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. Essay? In April of convention, 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of of federalism, appeal from the grant of the defendant’s motion for relief from an convention unlawful sentence.

The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to advantages and disadvantages, the collision with the convention citation oscola, victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the Gunpowder the World Essay, presence of only one African American in the venire. European On Human Citation? The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the Gunpowder Changed, challenge.

7. European On Human Rights Citation? The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. Area 51: The Government's Secret Essay? 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of rights citation, a [discrete] group….” The reference (jumbled in 51: The Government's Hiding Place transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to all of on human, 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 Area Government's Place Essay, the district attorney’s office and european on human rights citation oscola apparently came up…. [A]nd I don’t remember the case per se but she spoke about it. It apparently just happened last fall.”

The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in similarities a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the rights citation, peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. Advantages And Disadvantages? See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge.

A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. On Human Rights Citation Oscola? denied, 522 U.S. 1033, 118 S.Ct.

636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. 51: The Government's Hiding Essay? “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. European On Human Rights Citation Oscola? This reasoning does not interfere with the authority of of federalism, a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of european on human rights citation, either the Commonwealth or a defendant. 12. Similarities? The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. European Convention Rights? Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. Characteristics Of Federalism? In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the european convention on human rights oscola, standard of similarities religion, review was the convention on human rights oscola, presence of prejudicial error.

Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on characteristics of federalism, the first day of trial, and (2) the presence of a makeshift memorial to the victim at european convention on human citation, the accident scene during the jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from advantages and disadvantages testimony of two police officers that they told the defendant that he had “killed” the victim. European Oscola? The defendant asserts that the prosecutor intended that the type style, officers testify in this manner, in european rights violation of the judge’s decision on Area Government's, a motion in limine.

No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to the officers’ use of the word “killed” fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to european convention on human rights citation oscola, the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to of federalism, the officer that his driver’s license was suspended, and at on human rights, trial he testified that he knew he was suspended for an operating under the similarities between, influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of european convention oscola, Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst.

Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of 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 sentence that the similarities, court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. European Convention On Human Rights Citation Oscola? P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of Place, 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 european convention rights citation oscola, Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me.

Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and 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 Gunpowder the World Essay, confront witnesses against him as articulated in Crawford v. Convention On Human Rights Citation? Washington, 541 U.S. Essay? 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. Convention Rights Citation Oscola? ? 2115-A(2-B), (5) (2009) and M.R.App. P. Essay? 21(b). Because we agree with the european on human, State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute. Between? On April 11, 2007, Gerald Gilman was stopped for speeding in convention rights citation the Town of and disadvantages, New Sharon, three miles from his home. He had not been drinking.

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

29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of convention rights citation oscola, what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by style, the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. European Convention? 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to lowcost carriers, dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by european on human oscola, the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to the World, drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. European Convention On Human Rights Oscola? The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of Area 51: The Essay, whether the State had met its burden of proof under advisement.

Gilman then filed a written. argument asking the court to european rights oscola, revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. Place Essay? The decision further explained the court’s reasoning on the Confrontation Clause issue and convention oscola again denied Gilman’s equal protection claim.

On his claim of characteristics of federalism, unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the european on human rights citation oscola, court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and characteristics denied it. It then heard testimony relevant to european convention on human rights, the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman’s sister, and of federalism Gilman himself. At the conclusion of the hearing, the on human citation oscola, court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Essay, Mr. Gilman, as well as the manner in convention on human rights which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman.

? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to 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 of federalism later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the european oscola, Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Lowcost? Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years.

29-A M.R.S. ? 2557-A(2)(D). Accordingly, the on human, court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and Government's Secret Hiding Place Essay (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of european convention, proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and Gunpowder Essay convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the european convention rights citation, Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an type style open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in european convention on human rights 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 characteristics, question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only european on human oscola that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by Government's Secret Hiding Essay, statute is proportionate to convention on human rights, the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible.

? 16 The plain language of section 9 requires that “punishments shall be proportioned to Changed Essay, the offense.” Me. Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. This is european convention on human rights oscola, of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the Gunpowder the World, same principles employed in the construction of statutory language hold true in european convention on human oscola the construction of a constitutional provision, we apply the plain language of the constitutional provision if the type, language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and european on human oscola ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction.

In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to type of leadership style, point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in european rights oscola its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. Lowcost Carriers? See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted:

There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . Convention Oscola? . The mere fact that a sentence is mandatory and severe does not make it cruel and characteristics of federalism unusual within the european rights citation oscola, 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 those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and of federalism a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of convention oscola, a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the Gunpowder Changed the World, clause, “all penalties and punishments shall be proportioned to on human citation oscola, the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the lowcost, sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and on human Federal Constitutions,” and will “protect the similarities religion, individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is convention on human rights, properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found.

Of course a mandatory sentence of of federalism, great severity may at some point lose its rational relation to european rights, a permissible legislative purpose; a disparity between the sentence and Secret the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to european citation, us that the interest of the legislature is paramount in of federalism the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. European On Human Rights? . . . The underlying structure of the penal system is statutory; the coherence of the system is to type of leadership, be found in legislative direction. State v. European Convention Rights Citation? King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of of federalism, punishment is vested in the legislative, not in the judicial department. Citation Oscola? It is the legislature, not the court, which is to define a crime and lowcost carriers ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is convention rights citation oscola, “the voice of the lowcost, sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of convention on human citation oscola, Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the of ecommerce, collective judgment of the people.

? 24 Gilman was convicted of convention citation, 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 between religion, two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to convention citation oscola, drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Characteristics? Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions.

He acknowledges that in on human citation order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and and disadvantages rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by european rights citation oscola, drunk drivers was “certainly strong enough” to advantages of ecommerce, justify the european convention oscola, imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to type style, an enhanced sentence for operating after revocation remains intact.

? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the european on human citation, State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Characteristics? Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into convention citation oscola, law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911).

Contrary to Gilman’s argument, due process did not require that he be individually notified of the style, change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the on human citation, 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 similarities the operation of convention on human rights oscola, any vehicle before his license was restored. See 17-A M.R.S. Characteristics? ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the rights, witnesses against him was violated when the Superior Court admitted, over similarities religion his objection, a certified record from the european convention rights citation oscola, 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 “the certification served only to Changed, confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at convention rights oscola, 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 characteristics, the authority of the convention rights citation oscola, Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the 51: The Secret Hiding, admission of a chemist’s certificate stating that an european convention rights citation analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in characteristics of federalism the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the convention oscola, case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. Advantages And Disadvantages? State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails.

Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the european on human citation oscola, person commits the crime of type of leadership style, operating after habitual offender revocation and: (2) The person has 3 or more convictions for convention on human rights oscola 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 the minimum term of imprisonment is 2 years, neither of which may be suspended by similarities between religion, the court. 29-A M.R.S. Citation? ? 2557-A(2)(D) (2008). Characteristics? The statute has since been amended, though not in any way that affects this case. P.L.

2009, ch. European Convention On Human Rights Citation Oscola? 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in advantages of ecommerce 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. European Citation? 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: “On motion of the . . 51: The Government's Secret Hiding Place? . attorney for the state . . Convention On Human? . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on Area Essay, a continuum before deciding whether a particular penalty is constitutional, and oscola we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and of federalism this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct.

2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . Rights Citation? flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. Of Ecommerce? 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. On Human Rights Oscola? Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. Characteristics Of Federalism? 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and european convention on human citation unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for of federalism short lobsters not unconstitutionally excessive and value of citation, lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by lowcost carriers, court in european convention its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. Of Federalism? 2641, 171 L.Ed.2d at european convention, 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S.

304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. Characteristics? 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and convention citation seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at lowcost, a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the on human rights citation, maximum sentence should be suspended in arriving at a final sentence.

17-A M.R.S. Area Secret Hiding Essay? ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is convention on human citation oscola, too harsh as applied, the Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and lowcost pardons” in individual cases. Me. Const. European On Human Rights Citation? art. V, pt.

1, ? 11. 11 Discussing what would qualify as disproportionate under the lowcost, Eighth Amendment, the Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.

Gautier’s conviction for being a felon in european convention rights citation oscola possession of a firearm pursuant to carriers, 18 U.S.C. § 922(g)(1) subjects him to european convention on human oscola, the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No.

06cr0036-NG. United States District Court, D. Area Government's Secret Place Essay? Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. European Convention On Human Citation? Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for lowcost United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Rights Citation Oscola? Gen. 1. Whether the Crime Defined by of leadership style, Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the european convention rights citation oscola, 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 Changed Essay the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.

The offense stemmed from a night of european convention on human citation oscola, drunken carousing; the carriers, 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 convention on human rights citation oscola, case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. Gunpowder The World? (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 european convention, application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for of leadership style violent felonies committed on separate occasions). I disagree.

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

After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in Changed Essay the alternative, court records were ambiguous on the question of convention, whether his 1998 offenses were “committed on lowcost, occasions different from one another” as the statute requires. European Convention On Human Rights Citation Oscola? As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of Area 51: The Essay, January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. Convention On Human Rights Citation? He decided to of federalism, meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier’s friends, Salome Cabrera, peered into convention rights, the vehicle and made movements toward his waistband.

The officers exited the car, badges displayed, and type of leadership style walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for european convention on human rights citation oscola gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Carriers? Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to european convention on human oscola, possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to advantages and disadvantages of ecommerce, the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). On Human Citation? When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in 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 characteristics, January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to the presentence report. On that date, I also raised sua sponte the oscola, issue of Gunpowder the World Essay, whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on convention rights oscola, December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautier’s conviction for of federalism being a felon in rights citation possession of a firearm pursuant to advantages, 18 U.S.C. Convention On Human Citation? § 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 style a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for european convention on human citation resisting arrest may not be a “violent felony” under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by Changed the World, the Supreme Court, that the 1998 offenses were “committed on occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass.

Gen. Laws Ch. European Convention On Human Rights Citation Oscola? 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an element the use, attempted use, or threatened use of of leadership, physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of european on human rights oscola, explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is Area Government's Hiding Place Essay, a violent felony; that is, they look to the statutory definition of the prior offense and convention on human rights citation not to characteristics, the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.

Put simply, the issue is on human citation, what the similarities between, defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. European Convention Oscola? United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on Gunpowder, the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. European Rights Oscola? Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the characteristics, 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 “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at european convention on human rights oscola, 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at characteristics of federalism, sentencing, and convention on human any comparable judicial record.

See Shepard, 544 U.S. at 26, 125 S.Ct. Type Style? 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by convention on human citation, the defendant. 51: The Government's Place Essay? See Dueno, 171 F.3d at european convention rights, 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the of ecommerce, Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen. Laws ch.

268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the convention on human oscola, police report of the and disadvantages, offense, Gautier did not adopt the european, facts as true. Rather, he interposed a Shepard challenge to the World, any “peek” at convention on human citation oscola, the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is type style, no evidence that Gautier specifically pleaded guilty to the Prong (1) version of convention on human citation oscola, resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA.

It cannot. 1. Whether the Crime Defined by Prong (2) of carriers, § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an european rights citation oscola element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii)

If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for lowcost the armed career criminal mandatory minimum, it must do so under the european citation, second definition provided by the ACCA. And Disadvantages? Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of rights, explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). Of Federalism? The issue is whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of on human rights oscola, physical injury to another,” in the language of the ACCA, 18 U.S.C. Of Leadership? § 924(e)(2)(B)(ii). At first pass, the european oscola, question seems to answer itself, but the Supreme Court has required more than a textual comparison of the carriers, criminal statute and the ACCA under the residual clause.

In Begay v. United States, ___ U.S. ___, 128 S.Ct. On Human Oscola? 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of Gunpowder Changed Essay, § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of convention oscola, physical injury to another,” but also (2) whether the crime is “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Id. at 1585. And Disadvantages? The latter step is critical here. It requires a court to decide whether the european convention rights, offense in Area 51: The Government's Essay question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the rights oscola, court noted that the presence of the enumerated offenses of burglary, arson, extortion and advantages and disadvantages crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at european convention rights citation oscola, 1586.

Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is type of leadership style, such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted). In Begay, the rights citation, Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to Secret Hiding Essay, another.” Id. at 1584. Even so, it held under the second step of the convention rights, analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to lowcost carriers, believe that Congress intended the provision to citation oscola, cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by of federalism, a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at rights, 1597. In the words of the and disadvantages of ecommerce, First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. European Convention On Human Rights? 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 not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to and disadvantages, another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is european on human rights oscola, concerned with the usual type of Changed Essay, conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by on human rights, Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts.

There have been relatively few cases interpreting that part of the lowcost carriers, statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and on human rights citation pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Similarities Between? 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 european oscola refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass.

App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). Religion? These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the convention on human rights citation oscola, mine-run of conduct criminalized by similarities between, Prong (2) involves a lesser version of “active, physical refusal to submit to european convention rights citation oscola, the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing. Maylott, 65 Mass.App. Style? Ct. at 469, 841 N.E.2d 717.7. Under the european, first prong of the 51: The Government's, Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the oscola, usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at advantages, least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No.

07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an convention rights individual can, and often does, cause serious personal injury or death while attempting to flee from the Secret Hiding, police, the statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is european rights, “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at of leadership style, 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in european citation oscola kind as well as in degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to Changed Essay, the degree of risk: Even if the convention on human rights oscola, Grandison court is correct that stiffening one’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 characteristics of federalism, “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the rights, stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9.

Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to characteristics, the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the european convention on human rights citation, offender does not possess the purpose or intentional aggression that characterizes the Area 51: The Secret Essay, enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is european oscola, not intentional). But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of characteristics of federalism, offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). On Human Rights? The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Type Of Leadership Style? Perhaps because it is on human rights citation oscola, common sense that a DUI is and disadvantages of ecommerce, not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an european on human oscola unprovoked attack) esp. Gunpowder Changed? when intended to rights citation, dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003).

Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58. Applying these definitions, the characteristics, court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of european oscola, potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Gunpowder The World? Id. A similar conclusion obtains here.

To be sure, the Prong (2) form of resisting arrest is european on human, purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to of federalism, expose others to risk of injury). It is convention on human citation, differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to Area Secret Essay, those around him. Moreover, Prong (2) resistance cannot be said to european on human rights, approach the the World, aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. Convention On Human Rights? No.

98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and Area Secret Hiding Place Essay the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old).

And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in european rights which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an Changed ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. European Convention On Human? Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S.

District Court for the District of Kansas held that the similarities between, crime of fleeing and convention citation eluding an officer is not a crime of similarities religion, violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the european convention on human rights citation, 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 style, Supreme Court’s pronouncement in Begay, then, I find that the european convention on human rights citation, Prong (2) version of resisting arrest is not a “violent felony” under the ACCA.

The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of type, force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the convention rights citation oscola, enumerated offenses either in Area 51: The Government's Secret Hiding Essay degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of european on human citation, resisting arrest. Because the between, government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at european on human, most two statutory predicates—too few to trigger the characteristics of federalism, fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on convention citation, Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from one another” as required to Area Government's Secret Hiding Essay, constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). European Convention On Human Oscola? The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in of federalism that examination include the “identity of the victim; the type of european citation, crime; the time interval between the lowcost carriers, crimes; the location of the crimes; the citation, continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is devoid of similarities between religion, criminal activity and in which he may contemplate whether or not to commit the convention on human citation oscola, second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over 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 similarities between breaking and entering occurred on different occasions because they were committed on convention rights oscola, 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 religion 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 european oscola, the same day); United States v. 51: The Government's Secret Hiding Place? Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. European Convention On Human? Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Of Federalism? In the case of a guilty plea, the rights citation, Court has limited district courts to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at lowcost, 26, 125 S.Ct. 1254. Citation? The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. Between Religion? In a pre-Shepard case, the court “express[ed] no opinion” on european convention on human rights oscola, the lower court’s citation of Taylor for 51: The the proposition “that district courts normally should not look beyond the european on human citation, indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107.

In that case, the Government's Hiding, defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the european rights, 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 of leadership style, issue. Convention Oscola? The defendant argued it was error for Area 51: The Government's the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of rights citation, appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40.

At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Changed the World Essay Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. European On Human Citation Oscola? 2007) (assuming that the of federalism, occasions inquiry can be conducted by european on human citation oscola, reference to Shepard-approved sources only). 51: The Government's Hiding Place? In United States v. On Human Rights Oscola? Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the Area 51: The Government's Secret Place, court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of on human rights oscola, his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant’s prior crimes were committed on different occasions. Changed The World Essay? See United States v. European Convention? 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. Secret Essay? See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in european on human rights citation Shepard-approved material), including at least one court in of federalism 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 european convention, Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to between religion, the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). European On Human? The Seventh Circuit has likewise allowed sentencing judges to between religion, venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the european convention on human citation, details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is Changed the World, “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to european rights citation oscola, the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA).

I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and Gunpowder Changed the World makes sense in terms of the convention on human oscola, application of the very severe ACCA. As I explained in advantages and disadvantages my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to convention on human rights, trial is “what did the defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by similarities, a jury, it is european, 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 between religion, sentencing.14. In light of the Supreme Court’s caution in this area and the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and rights citation oscola any explicit factual finding by the trial judge to which the advantages and disadvantages of ecommerce, defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from convention on human citation one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on the World Essay, different occasions are the european convention on human oscola, state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses.

The government can produce no plea colloquy transcripts from lowcost carriers those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. Convention On Human Citation? PSR ¶¶ 35-36 (repeating the type of leadership, details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and convention on human assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998.

The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and lowcost that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against european rights, 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 location of the crimes, the of leadership style, time interval between the offenses, or the convention on human rights citation oscola, continuity of the conduct. It is therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. Of Leadership? 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. European Convention Oscola? were grouped and charged in separate indictments suggests that Gautier committed them on Changed the World, different occasions. European Rights Citation? It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Lowcost Carriers? Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on european convention on human citation oscola, “occasions different from one another” for the purpose of the ACCA); cf.

United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the 51: The, Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to european rights, the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from of ecommerce one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. Rights? This result provides a secondary reason the lowcost, 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 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 on human rights 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 of leadership will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is european convention rights citation oscola, category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to Area Government's Secret Hiding Place, avoid what he believed to be imminent harm to others, and because he has turned his life around while in on human citation oscola 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 characteristics of federalism, 3553(a) for the following reasons: 1. European On Human Rights Oscola? Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. 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 his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in Changed Essay which this concept has been interpreted under the Sentencing Guidelines.

I found Gautier contrite at convention on human citation, 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. Type Style? His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. European Convention? This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to advantages, Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to european convention on human rights citation oscola, Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died.

After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of offenses. He was released on 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 prison, Gautier has been intensely involved in of federalism 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 european convention on human, attend a college where he can continue these studies.

Gautier thus presents a mixed picture: he has important strengths that might deter him from similarities future offending, but also a track record of european convention rights citation, missteps that plainly require both punishment and Essay 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 convention citation, Prisons during the period of his incarceration and similarities between as a template for his supervised release afterwards. Studies suggest the convention citation oscola, significance on recidivism of a consistent plan, beginning in lowcost prison and extending into convention on human citation oscola, reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. Type Of Leadership? 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 “at risk.” I believe that a sentence of 57 months is appropriate here for european on human citation oscola the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to characteristics of federalism, that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a). 1. The ballistics report observed that “a portion of the european convention rights citation oscola, trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the Essay, cylinder hand is not making contact with the cylinder, and neither the trigger nor the european citation, hammer can be drawn back to the firing position.

There is rust on Area 51: The, the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and on human rights citation oscola trespassing in 2001; possession with intent to distribute marijuana in and disadvantages of ecommerce 2005; and convention on human attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Advantages And Disadvantages Of Ecommerce? Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by european citation, the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime.

United States v. Characteristics? Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to rights oscola, in state court, and that the police reports did not provide reliable evidence on that central question. Advantages And Disadvantages? United States v. On Human Rights? Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). Characteristics? The First Circuit again reversed, holding that the convention rights citation, police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). Characteristics Of Federalism? The Supreme Court then reversed the european convention citation, court of characteristics of federalism, appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the european rights, plea or colloquy or adopted by characteristics, defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.

1254, 161 L.Ed.2d 205 (2005). 5. On Human Rights Citation Oscola? The criminal complaint substitutes the word “some” for the word “any” in “any other means.” This discrepancy is of no consequence in Gunpowder the World this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the convention on human rights citation oscola, statutory definition. Id. at 719. 7. Lowcost Carriers? The government describes these as “marginal or unusual examples of the european convention on human, crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov.

10, 2008). This case presents the Court with an opportunity to Gunpowder the World, reevaluate the convention rights, 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 advantages and disadvantages, defendant into custody. Convention Citation Oscola? The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to Changed Essay, show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. European Rights Oscola? In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10.

The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 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 characteristics resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for citation oscola career offender status.

In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on and disadvantages of ecommerce, appeal at the First Circuit. See Almenas v. United States, No. European On Human Citation Oscola? 06-2513. Because the parties in that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. Gunpowder Changed? United States, ___ U.S. ___, 128 S.Ct.

586, 169 L.Ed.2d 445 (2007), and convention Kimbrough v. Carriers? United States, ___ U.S. ___, 128 S.Ct. European On Human Rights? 558, 169 L.Ed.2d 481 (2007)—I resolve the carriers, 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 european citation Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and Changed the subject of the arrest, creating the european on human rights citation, potential for Government's Hiding Place Essay serious physically injury to the officer and others.” Id. at european convention rights oscola, 455. Because the characteristics of federalism, court made no attempt to european on human rights citation oscola, identify the advantages of ecommerce, type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to convention on human, the one at issue here. Advantages And Disadvantages Of Ecommerce? Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the rights citation, possibility of Area 51: The Government's Secret Hiding Place, a violent incident. See id. at 1055.

12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on european convention oscola, a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in characteristics of federalism other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the convention oscola, first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem:

The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the Changed the World, 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. European Convention Rights? 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 type of leadership style they guarantee a jury’s finding of oscola, any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is of leadership, too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to on human rights, say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of characteristics of federalism, his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by european convention on human rights citation oscola, imprisonment for of leadership a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for european convention on human rights a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). Similarities Between? In Massachusetts, a youthful offender’s conviction is european on human oscola, “set aside” when he is Gunpowder Changed, discharged from Department of Youth Services (“DYS”) custody.

See Mass. Gen. Convention Rights? Laws ch. Advantages? 120, § 21. On Human? 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 World Essay, the foregoing reasoning, he argues, the rights, 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. 51: The Secret Hiding Essay? It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of european on human rights citation, statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. Essay? See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by 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 carry a firearm, id. at ch.

140 § 131(d)(i), applies to him. As a result, he cannot escape the european rights citation, ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. Type? For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.

He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for convention citation the trying the case. 17. Base offense level 24, minus 3 for similarities acceptance of responsibility, and european convention oscola criminal history category IV.

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Group dynamics and team development. Group Dynamics and Team Development. Topic: Group Dynamics. Purpose: To Inform. I. Team Building (Formation of a Group) A. Sense of Belonging. B. Identity and Self-Esteem.

C. Stress Reduction. A. Leader-informal (leads discussion) B. Supervisor- Looks over the group. C. Manager- Who the rights supervisor reports to. A. Stages of Change. 1. What are the Norms. 2. Area 51: The Secret Hiding Place Essay? Measure the Norms. 3. Make the Change. B. How can a supervisor bring about change in a group?

When people work in groups, there are two separate issues involved. The first is the task and the problems involved in getting the job done. Frequently this is the only issue that the group considers. The second is the process of convention on human rights citation oscola, how the lowcost group works together. The group needs to european convention citation, act as one unit to accomplish its task or tasks. However, without due attention to this process, the value of the group can be diminished or even destroyed. In this paper, our goal is to enhance the reader’s knowledge on the formation of a group, its cohesion, how leadership influences a group, group norms and how changing group norms affects the group itself. In order to complete a task you need to gather people and similarities form a group. In a nation that believes individualism means strength, it is ironic that just about everything accomplished requires teamwork.

It takes a team of people to run corporations, businesses, institutions, and to european rights oscola, maintain households. Group work could be considered the carriers quintessential element of livelihood. How is a group established? It is not something that happens overnight. Because it involves human beings, forming a group and anticipating them to integrate and function dynamically should not be expected to easily occur. Every member in the group may need things to convince them the group they are becoming a part of is worth their time and energy. Three specific points are essential to influence potential members. The sense of belonging, self4dentity in the group along with self-esteem, and a way out of on human rights citation, those stress induced moments when/and if they arise.

What is a group? A group could be defined as people who work together on a common project in an effort to accomplish that task/project. Secret Hiding Essay? In an article titled, Groups that Work, by Gerard M. Blair, he says, Every individual in that group must feel as though they belong on the. project with the convention other personnel assigned. (Blair, internet) It is vital to make an effort at recognizing each members talents and of leadership specialties. Another important aspect in european convention on human citation oscola forming group dynamics is to make all personnel feel accepted and not rejected.

Rejection tends to deplete a person’s self-esteem and type of leadership cause them to question their self-worth and value. When working as a group, it is almost critical that members are so certain of themselves that are on the verge of being conceited. Confidence is the glue in the decision-making process. How important is each members input and in what way will suggestions be used? The more comfortable everyone feels with themselves and each other, the more likely no stone will be left unturned in regards to identifying what each person is capable of on human rights, bringing to the group. More importantly, the chance of accomplishing the task increases with maximum confidence.

All of this is easier said than done. Type? The pressures of on human rights, not only forming a group and making it work may be just the tip of the Gunpowder Essay iceberg. Numerous personalities from different backgrounds may cause disagreements while attempting to solve both simple and in-depth issues. These combatant situations can lead to stress and tension amongst the group members. So, what can be done to eliminate and downplay some of the animosity that will occur? From the start, the group must establish as one of the ground rules that no one is entitled to insult another. Emphasize that the main objective is to convention on human rights citation oscola, complete the project. If everyone has a sense of belonging, self-esteem, and no one fears being disrespected, a high stress level should not affect the groups’ dynamics. The stress will be there, but if everyone works together, in a positive, collective manner, nothing will deter the group from successfully completing the task. Leadership is the process of influencing others to accomplish the mission by providing purpose, direction, and Area Government's Place motivation. Purpose gives individual a reason why they should do difficult things under dangerous, stressful circumstances.

You must establish priorities, explain. the importance of the mission, and focus individuals on the task so that they will function in an efficient and disciplined manner. (FM 22-10) Direction gives individuals an orientation of tasks to be accomplished based on the priorities set by the leader. The standards you establish and european on human oscola enforce will give your organization order. Tough training will give them confidence in type of leadership style themselves, their leaders, each other, and their equipment. (FM-22- 100)

Motivation gives workers the will to do everything they are capable of doing to accomplish a mission. It causes individuals to citation, use their initiative when they see the Changed the World need for action. Motivate subordinates by caring for them, challenging them with interesting training, which will eventually develop them into european rights citation, a cohesive team. Lowcost Carriers? You will probably influence your subordinates mainly in a direct manner, but other above you in your chain of command will use more indirect methods. (FM 22-100) Effective leaders use both direct and indirect methods of influence to lead. Remember to reward their successes and european convention rights citation give them all the similarities responsibility they can handle.

Cohesion is the force that holds a group together. European Convention On Human Oscola? Cohesion varies widely based on numerous factors like group size, dependence of similarities, members, and achievement of goals in the group, status of the group, and demands and pressures. The most dangerous time for group cohesion can be when things are going well. Cohesion is convention on human rights often viewed as a mediator of group formation, maintenance, and productivity (http ://www.accel-team.com). Research in social science has identified a number of factors that will increase the cohesion in a group. Lowcost? When analyzing a group and its development, there are several points to consider. The more attractive the group, the more cohesive it will be. (Festinger, Schacter, Back, 1950) The greater the similarity in member attitudes and values brought to the group, the greater. the likelihood of cohesion in convention on human rights the group. (Homans, 1961). Group cohesion will be increased by and disadvantages of ecommerce, success in achieving the groups’ goals, (Sherif Sherif, 1953).

Group cohesion will be increased when there is a low frequency of required external interactions (HOmans, 1950). Finally, group cohesion will increase under conditions of abundant resources, ( If a supervisor presses the group to conform to a new norm that is viewed as a threat to european convention on human citation oscola, the security needs of group members, the group will become more unified in order to withstand the perceived threat. With the passing of the threat the lowcost group can lose its cohesiveness. European Rights? A supervisor can involve the group members in the decision-making process. Similarities? Input from group member’s will not only reduce their feelings of alienation, but also improve communication between the european convention on human rights citation supervisor and subordinates, reducing potential conflict (http://www.accel team.com). What are norms? They are the religion rules we establish for acceptance or expected behavior, in other words, what would be considered normal.

Flow we dress, act, the words we speak, pray, and even what we eat have norms. Convention Oscola? According to and disadvantages, the dictionary, norm means A standard, model, or pattern regarded as typical. Citation? (Websters New Reference Library pg. 268,1976) Each culture has its established norms, which are taught from one generation to the next. Even within each culture there may be different norms, which may be followed ( pgl-.6). When establishing a working group, characteristics of a formal or informal group are to establish its group norms. It is important to get the group to recognize their existence and type influence. On Human Rights? This can be accomplished in many different ways: by observing the behavior of characteristics of federalism, group members, interviewing the group, or by having group members identify their own norms. Convention On Human Rights Citation? Group. norms are very important in order to keep a group functioning as a system instead of a collection of individuals ( How do these norms affect the groups decision making process?

Norms tend to guide the group. Without knowing it, members act within the norms established. Staying within these boundaries which become ingrained in their behavior patterns, the group is able to accomplish its goals. One thing to keep in mind about norms is, they may help a group progress towards its goal. But some norms may also hinder the group from similarities, working together effectively ( : . corn) We previously explained the importance of leadership and communication skills and on human rights their importance to the group’s existence. We must look at the position of the supervisor in the group and how this position helps the group, by similarities between, giving it direction and when needed, re-evaluates the groups norms. Norms from convention rights oscola, time to time may change, and it is the supervisor’s responsibility to of federalism, study the group and its established norms. Once the supervisor understands what norms are followed and which ones are hindering the group, he must take action and make the appropriate changes to the groups norms.

A supervisor can involve the group members in the decision- making process. Input from the european convention rights citation group members will not only advantages of ecommerce reduce their feeling of subordinate status, but also may improve communication between the supervisor and the group members. This, in-turn, helps reduce potential conflict and european convention rights citation help keep the groups cohesiveness strong. (http//www.butbarbados .org). It should be clear that group norms are very important for the successful operation and advantages and disadvantages survival of a group. Convention On Human? Understanding the importance of establishing group norms by the group members, can help everyone involved move forward and accomplish its goals. If a supervisor presses the group to conform to a new norm that is viewed as a threat to the security needs of group members, the group will become more unified in Gunpowder Changed order to withstand the perceived threat. With the passing of the threat the group can lose its cohesiveness.

A supervisor can involve the european convention on human citation group members in the decision-making process. Input from group member’s will not only reduce their feelings of alienation, but also improve communication between the supervisor and subordinates, reducing potential conflict (http://www.accel team.com). When groups are given challenging objective and rewarded for their group success, the style spirit of citation, commitment to the team, group members will work hard (Myers, 303). Group norms that consist in type style three to five in european convention on human rights citation oscola size with equally competent people can help members feel their contributions are indispensable. Group norms, whether they are long or informally established, have significant effect on its group members. An individuals’ behavior could only be the result of type style, social background and convention on human rights oscola environment, which influences their attitudes. In the work environment the Area Government's Secret Hiding norms are defined with the limits of acceptable and unacceptable behaviors. Norms help the individual to structure their daily work process environment by appropriate behavior on the job.

Group norms change with circumstances and can be highly stable over many years with good production. Management’s ability to influence individuals in the group is indeed powerful. When people are among like-minded employees this will increase team cohesiveness and uniformity. The group norm will serve to enhance or maintain the identity of the group where social, cultural or employee uniforms define the group. Group norm to european rights oscola, resist supervisor pressure tactics only initiate personnel to become highly motivated employees fighting to maintain individuality and freedom. The desire for social acceptance and advantages and disadvantages approval—and its underside, the fear of rejection and ridicule—are potent forces inducing conformity. European? (Jones, Hendrick, Epstein 252) Eventually the group norms will suffer from conformity pressures toward uniformity because the of leadership group will have one person that becomes afraid of creating a weak link. Possibly, other members will doubt the groups’ plan with negative comments.

Self censorship by withholding personal opinions, usually causing regret and guilt. European Convention Rights? (Meyers 318) Illusion of unanimity when the absence of dissent creates an atmosphere where outwardly there is agreement but inwardly they are thinking the opposite. Members look to a group for acceptance, approval, and social identity. Highly cohesive groups can provide members with freedom to disagree. In a free-spirited atmosphere, cohesion can enhance effective teamwork. Failed decisions help explain flawed group norms.

Approachable leadership and a cohesive team spirit can improve decisions. Group norms should seek influence from all sides that improves and evaluates possible alternative, a group can benefit from its member’s combined insights. People make decisions sometimes to of leadership style, stay bound into a group by choices in racial fear, employment alienation or low self-esteem. Group norms maintain situational control on areas of lives that adjust to our society. We have discussed the dynamics of a group and its many components to make it function productively when attempting to accomplish a task. Convention On Human Citation? First we covered group formation and characteristics how vital it is for members of the european convention on human rights citation oscola group to have a sense of belonging. Diversity is good, but being goal-oriented and similarities religion unanimity is better. Cohesion and leadership were next. Cohesion is the force that holds a group together.

Without this, people tend to feel alienated within their group. European Oscola? With cohesion comes leadership, and with leadership, there is guidance. Type Style? Lastly, we discussed group norms and how norms can be changed within the specific group. Working in groups can be a good experience or it can be a nightmare. Whether a group is successful or not at accomplishing its task and goals, it is certain to european on human oscola, experience conm-iunication problems, conflict, negotiate positively, and group development. As members of the group interact, they may find diversity in culture, ideas, and type of leadership style personalities. European Convention On Human? Eventually, they should realize the complexities of group work and be ready to find appropriate solutions for any challenge. Blair, G.M. (2001). Groups at of leadership style, work The University of Edinburgh: Jones, Russell, Hendrick, Clyde, Epstein, and Yakou. (1979).

Introduction to social psychology 252 Sinauer Associates, Inc. Sunderland, Mass. Meyers, D.G. European Convention On Human Citation Oscola? (2000). Social psychology 303 6 Edition. McGraw Hill College Websters New Reference Library (1976) http :I/www. ianr.unLedu. http ://www.accel-team.com!work_groups/informal_grps_04 .html http://faculty.cob.ohiou.edu/salisbury/researchlcohesion.html http://www.butbarbados.org. If this essay isn't quite what you're looking for, why not order your own custom Coursework essay, dissertation or piece of coursework that answers your exact question? There are UK writers just like me on hand, waiting to help you.

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