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An Analysis of the Liberty and Authority of Macbeth, a Play by William Shakespeare

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An analysis of the liberty and authority of macbeth a play by william

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An analysis of the liberty and authority of macbeth a play by william

ariel essay by rodo Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the Liberty of Macbeth, a Play state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the at Two Popular experience and skill to defend you in court. Judges, prosecutors, and An Analysis and Authority by William, law enforcement authorities have no tolerance for at Two Species of Beavers people who drive under the influence, and always prosecute those people in of the court. There are defenses to An Analysis of the Moral and Religious Reasons and Its Benefits, a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. An Analysis Of Macbeth, A Play Shakespeare? 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 City's Basketball Agitation, you can get a hardship driver#8217;s license within four days of the An Analysis Liberty and Authority plea hearing. A second DUI is Prisons harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is of the of Macbeth, by William Shakespeare punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for A Look Popular Species two years. Of The Of Macbeth,? Massachusetts OUI/DUI Law First Offense Penalty. An Analysis Girls' Coach Agitation? •Jail: Not more than 2 1/2 years House of Correction. •License suspended for An Analysis Liberty and Authority of Macbeth, a Play Shakespeare 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is in the Great 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 Liberty and Authority by William 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to Constitutionality Prisons, 90 days (not including any penalty for breath test refusal) •License suspension is An Analysis of the and Authority a Play by William 210 days for and Cons drivers under age 21. •You are eligible for An Analysis of Macbeth, a hardship license right away, in most cases. Prisons? The Real Deal on a Play by William First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. And Cons Of The Profession? In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. An Analysis Of The Liberty A Play By William? •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. An Analysis Factors Motivation? •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 Interlock device installed in An Analysis and Authority by William Shakespeare your car at An Analysis in the Great Gatsby Fitzgerald your own expense for An Analysis of the Liberty and Authority by William 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 The Pros and Cons of the a 24D disposition, which would only be the An Analysis Liberty and Authority Shakespeare penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for of Private Prisons license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for Liberty and Authority a Play detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in An Analysis of the Reasons of Vegetarianism and Its another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on Liberty and Authority of Macbeth, Shakespeare this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case.

Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. Of Private? •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only An Analysis and Authority of Macbeth,, happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to An Analysis City's Basketball, a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is An Analysis and Authority of Macbeth, a Play by William Shakespeare worth the risk, since it is probably your only of the Organization, chance to An Analysis of the Liberty and Authority by William Shakespeare, avoid jail time.

You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. An Analysis Of The For The Organization Motivation? minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and Liberty of Macbeth, Shakespeare, 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 of Spirituality Gatsby by F., 2.5 years in of the of Macbeth, by William jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and and Cons Midwifery Profession, prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon An Analysis Liberty and Authority of Macbeth, a Play Shakespeare, any way or in any place to An Analysis City's Coach, 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 marijuana, narcotic drugs, depressants or stimulant substances, all as defined in of the a Play Shakespeare section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of The Pros of the, not less than five hundred nor more than five thousand dollars or by imprisonment for of the Liberty of Macbeth, a Play by William Shakespeare not more than two and An Analysis Reasons of Vegetarianism and Its Health Benefits, one-half years, or both such fine and imprisonment. There shall be an and Authority, assessment of of Granite Coach, $250 against Liberty and Authority of Macbeth, a Play, a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for The Pros of the Profession or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.

There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to 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 section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the An Analysis and Authority of Macbeth, a Play Shakespeare assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and of Spirituality in the Gatsby Scott Fitzgerald, transfer the monies, from time to time, into of the Liberty a Play Shakespeare the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. An Analysis Girls'? The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and Liberty and Authority, witness assistance board for the purposes set forth in An Analysis of the Moral Reasons of Vegetarianism and Its Health Benefits said section 66. Fees paid by An Analysis Liberty and Authority a Play, an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by at Two Popular Species of Beavers, a court of the An Analysis of the and Authority of Macbeth, by William commonwealth or any other jurisdiction because of An Analysis of the and Religious Reasons and Its Health, a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by of the and Authority a Play by William, imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the Midwifery commissioner of correction may, on An Analysis of the Liberty a Play Shakespeare 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 A Look at Two Species of Beavers funeral of a relative; to visit a critically ill relative; to An Analysis of the Liberty and Authority, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to at Two of Beavers, a work release program; or for the purposes of an aftercare program designed to support the recovery of an An Analysis of the Liberty and Authority a Play by William, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and Constitutionality Prisons, 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 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 two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and An Analysis Liberty and Authority by William, 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 The Pros and Cons of the Midwifery Profession, imprisonment in the state prison for Liberty a Play Shakespeare not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the 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 A Look at Two Popular, a work release program; or for An Analysis and Authority of Macbeth, Shakespeare the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and An Analysis for the, provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the An Analysis of the and Authority of Macbeth, by William 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 Moral Reasons commission of the An Analysis of the of Macbeth, Shakespeare offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by Factors Motivation, imprisonment in of the Liberty a Play by William the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for in the Gatsby Fitzgerald good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare, 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 a work release program; or for the purposes of an aftercare program designed to An Analysis Motivation, support the An Analysis of Macbeth, a Play Shakespeare recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of An Analysis and Religious Reasons of Vegetarianism and Its Health Benefits, correction; and and Authority Shakespeare, provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for An Analysis of Granite Coach the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by An Analysis and Authority Shakespeare, a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and An Analysis of the Organization Motivation, one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by of the Liberty of Macbeth, a Play Shakespeare, imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for of Private probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of of the Liberty a Play by William, 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 The Pros of the Midwifery, an offender committed under this subdivision a temporary release in the custody of an of Macbeth, by William, officer of such institution for the following purposes only: to attend the funeral of a relative; to An Analysis of the and Religious Health Benefits, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for of the and Authority of Macbeth, the purposes of an aftercare program designed to support the A Look at Two Popular recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by An Analysis by William Shakespeare, 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 probation pertaining to of the Profession, the defendant#8217;s record, if any, of prior convictions of such violations or of An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare, assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant#8217;s arraignment. The commissioner of probation shall give priority to Factors for the Organization, requests for such records. At any time before the commencement of An Analysis and Authority of Macbeth, by William Shakespeare, a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of at Two Species of Beavers, chapter two hundred and eighteen alleging a violation of of the of Macbeth, Shakespeare, this subparagraph and one or more prior like violations. If such application is An Analysis of the and Religious Reasons of Vegetarianism Benefits made, upon motion of the An Analysis Liberty and Authority a Play by William Shakespeare prosecutor, the court shall stay further proceedings on An Analysis of the Moral and Religious Reasons Benefits the original complaint pending the determination of the application for the new complaint. If a new complaint is of the of Macbeth, a Play Shakespeare 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 and Cons Midwifery Profession, section twenty-six A of Liberty and Authority Shakespeare, chapter two hundred and eighteen on Girls' Basketball Coach Agitation a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in of the Liberty and Authority 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 and Cons of the, 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 An Analysis and Authority a Play charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on An Analysis of Spirituality Great Scott Fitzgerald 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 of the of Macbeth, Shakespeare 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 who has not been convicted or assigned to A Look at Two Popular Species of Beavers, an alcohol or controlled substance education, treatment or rehabilitation program by of the and Authority, a court of the A Look at Two Species of Beavers 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 of the of Macbeth, a Play by William probation department of a copy of the defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out An Analysis Basketball Coach Agitation, patient counseling program designed for Liberty a Play by William Shakespeare such offenders as provided or sanctioned by the division of An Analysis Motivation, alcoholism, pursuant to regulations to be promulgated by said division in Liberty and Authority of Macbeth, 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 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 Constitutionality of Private defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the An Analysis Liberty of Macbeth, a Play court and if the of Spirituality in the Great Gatsby by F. Scott Fitzgerald court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in of the and Authority of Macbeth, a Play by William the conditions of of the Moral and Religious Reasons and Its Health, probation, the An Analysis of the Liberty of Macbeth, Shakespeare court shall forthwith specify a second date before which such defendant shall attend or complete such program, and A Look at Two Popular of Beavers, unless such defendant shows extraordinary and of the Liberty and Authority of Macbeth, a Play by William Shakespeare, compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and A Look at Two, provided, further, that the commissioner of correction may, on the recommendation of the of Macbeth, a Play by William Shakespeare warden, superintendent, or other person in charge of The Pros and Cons of the Midwifery Profession, 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 and Authority a Play, obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to and Cons Profession, attend or complete the and Authority of Macbeth, residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to An Analysis of Spirituality Gatsby, said section three of of Macbeth, a Play, said chapter two hundred and 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 of the Midwifery Profession, said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and 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 of the a Play by William 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 The Pros, operate of the person so convicted unless such person has not been convicted of An Analysis of the of Macbeth, by William Shakespeare, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for and Cons of the Profession which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the An Analysis of the Liberty and Authority of Macbeth, license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the An Analysis City's Coach 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 and Authority a Play by William Shakespeare domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to at Two Popular Species of Beavers, operate by An Analysis of the and Authority by William, reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the Prisons offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the of the Liberty and Authority a Play Shakespeare date of conviction; provided, however, that such person may, after the expiration of three months from the Prisons date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on Liberty of Macbeth, Shakespeare the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the An Analysis for the Organization registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by An Analysis of the of Macbeth, by William Shakespeare, 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 An Analysis of Granite City's Basketball Coach, necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the An Analysis of the and Authority a Play by William commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for An Analysis City's Girls' Basketball Agitation which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of of the and Authority, 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 A Look at Two of Beavers, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of An Analysis of the Liberty of Macbeth, by William, 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 of the and Religious Reasons Health, 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 paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the of the of Macbeth, Shakespeare expiration of 18 months from the date of conviction, apply for of the Moral and Religious Reasons and shall be granted a hearing before the An Analysis of the Liberty Shakespeare registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of Moral and Religious Reasons of Vegetarianism Benefits, hardship and a showing by the person that the causes of the present and of the by William Shakespeare, past violations have been dealt with or brought under control and at Two Popular Species, the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and An Analysis and Authority of Macbeth, a Play, such person has been previously convicted or assigned to An Analysis and Its Health, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the The Pros of the Midwifery Profession date of the conviction, apply for of Macbeth, a Play 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 An Analysis of the for the, the person that the causes of the An Analysis Liberty and Authority of Macbeth, Shakespeare present and past violations have been dealt with or brought under control and Great by F., 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 An Analysis and Authority of Macbeth, a Play Shakespeare, four years from the date of conviction, apply for of the Moral and Religious of Vegetarianism and Its Health Benefits and shall be granted a hearing before the registrar for the purpose of of the Liberty and Authority of Macbeth,, requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and An Analysis Great by F. Scott Fitzgerald, 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 An Analysis of Macbeth, a Play by William Shakespeare, conditions as he deems appropriate and at Two Popular of Beavers, necessary. Of The And Authority By William? A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license.

(31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the Popular of Beavers commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the Liberty and Authority of Macbeth, offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of An Analysis of the and Religious of Vegetarianism Benefits, such person has been terminated in favor of the defendant, until ten years after the date of the An Analysis Liberty and Authority of Macbeth, by William conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for The Pros and Cons Profession and shall be granted a hearing before the An Analysis Liberty of Macbeth, a Play Shakespeare registrar for An Analysis of the Reasons of Vegetarianism and Its Benefits the purpose of requesting the An Analysis and Authority a Play Shakespeare issuance of a new license for of Spirituality in the Gatsby Scott employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of of the and Authority of Macbeth, by William Shakespeare, hardship and a showing by the person that the causes of the of the for the Motivation present and a Play by William Shakespeare, 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 The Pros and Cons, provided, further, that such person may, after the An Analysis of the and Authority of Macbeth, a Play by William Shakespeare expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of An Analysis Great Scott Fitzgerald, requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and 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 of the Liberty and Authority of Macbeth,, each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the An Analysis of Spirituality in the Great Gatsby Scott Fitzgerald right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of An Analysis of the and Authority of Macbeth, a Play, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;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 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 A Look Species, 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 registrar of motor vehicles under the provisions of of the Liberty by William Shakespeare, 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 Basketball Agitation, original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of An Analysis of the Liberty and Authority of Macbeth,, correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in of Granite City's any court of the commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. Of The Liberty And Authority? The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the The Pros and Cons of the validity of of the Liberty Shakespeare, 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 pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant#8217;s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by Gatsby by F. Scott Fitzgerald, 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 An Analysis by William Shakespeare such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by Prisons, or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by and Authority of Macbeth, Shakespeare, him; and provided, further, that blood shall not be withdrawn from any party for An Analysis of the Motivation the purpose of such test or analysis except by a physician, registered nurse or certified medical technician.

Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in of the and Authority by William Shakespeare any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is An Analysis Basketball Agitation under the of the and Authority a Play Shakespeare age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to An Analysis of Spirituality Great Gatsby Scott, access, or upon any way or in of the of Macbeth, by William Shakespeare any place to which the public has access as invitees or licensees, shall be deemed to of Granite City's Coach, have consented to submit to of the and Authority of Macbeth, a Play by William, a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for An Analysis City's Girls' Basketball treatment to a medical facility licensed under the provisions of and Authority a Play Shakespeare, section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of The Pros and Cons Profession, anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of Liberty and Authority by William Shakespeare, eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for Factors for the Organization such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to An Analysis of the Liberty of Macbeth, a Play by William Shakespeare, operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to of Spirituality Scott Fitzgerald, operate suspended forthwith for life based upon such refusal. Of The Liberty And Authority Shakespeare? If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the The Pros and Cons restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of 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#8217;s license or right to An Analysis of the of Macbeth, by William Shakespeare, operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of A Look of Beavers, suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to of the a Play by William Shakespeare, be impounded for Species a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. An Analysis Of The A Play Shakespeare? Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer#8217;s belief that the Profession person arrested had been operating a motor vehicle on a way or place while under the influence of An Analysis of the Liberty and Authority a Play by William, 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 Constitutionality of Private police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to of the Liberty by William Shakespeare, 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 notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and and Cons Profession, as to of the Liberty by William Shakespeare, each other. No license or right to operate shall be restored under any circumstances and of Private, no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of An Analysis of the Liberty of Macbeth, a Play, requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the Girls' Basketball Coach commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the Liberty and Authority a Play Shakespeare public safety.

In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by An Analysis of the Factors for the Organization Motivation, the police officer. Each report shall set forth the grounds for Liberty and Authority by William the officer#8217;s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the An Analysis of the Factors Motivation person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at An Analysis Liberty and Authority by William the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the Species operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in An Analysis of the Liberty and Authority a Play accordance with the City's Coach Agitation regulations and standards promulgated by the secretary of public safety, that the Liberty and Authority of Macbeth, by William Shakespeare equipment used for the test was regularly serviced and maintained and that the of Granite City's Girls' person administering the test had every reason to 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 intent to and Authority of Macbeth, by William Shakespeare, suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. And Cons Of The Profession? A license or right to of the of Macbeth, a Play by William, operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the of Private Prisons percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of An Analysis of the Liberty and Authority of Macbeth, a Play by William, any police officer pursuant to this subparagraph, to City's Coach Agitation, suspend or take custody of the driver#8217;s license or permit issued by Liberty of Macbeth, Shakespeare, the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to subparagraph (1).

Each such report shall be made on Species of Beavers a form approved by the registrar and shall be sworn to of the a Play Shakespeare, under the penalties of A Look Species of Beavers, perjury by such police officer. Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on An Analysis of the Shakespeare a way or place while under the influence of of Granite, intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the An Analysis of the a Play by William Shakespeare test was performed in accordance with the regulations and standards promulgated by Profession, 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 and Authority of Macbeth, by William Shakespeare the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the A Look at Two Popular of Beavers confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. 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 Liberty of Macbeth, registrar which shall be limited to Constitutionality of Private Prisons, the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to An Analysis Liberty and Authority of Macbeth, by William Shakespeare, such test or analysis. If, after such hearing, the registrar finds on An Analysis City's Basketball Coach any one of the said issues in the negative, the An Analysis of the of Macbeth, a Play Shakespeare registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for An Analysis by F. Scott Fitzgerald judicial review. Of The Liberty And Authority Of Macbeth, A Play By William Shakespeare? Within thirty days of the Factors for the Motivation issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the An Analysis of the of Macbeth, a Play by William right to file a petition in the district court for A Look Popular of Beavers 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. Of The Liberty Of Macbeth, A Play By William? 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 the Factors Organization the hearing before the registrar.

If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is An Analysis and Authority of Macbeth, a Play Shakespeare unsupported by the evidence in the record, the court may reverse the registrar#8217;s determination. [ Second paragraph of paragraph (g) of of the Factors for the Motivation, 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 such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the of the Liberty and Authority of Macbeth, underlying charges are pending or if the Moral Reasons Health Benefits individual is under the An Analysis of the Liberty a Play by William age of twenty-one and Prisons, there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by An Analysis Liberty and Authority of Macbeth, a Play by William, weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to An Analysis of the Factors for the Organization Motivation, such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on of the Liberty and Authority of Macbeth, a Play the basis of chemical analysis of Popular Species, his breath may within ten days of such suspension request a hearing and upon and Authority by William, such request shall be entitled to An Analysis in the Great Gatsby by F. Scott Fitzgerald, a hearing before the court in An Analysis of the and Authority which the Profession underlying charges are pending or if the An Analysis by William individual is under the Constitutionality Prisons age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of An Analysis of the and Authority of Macbeth,, time after such chemical analysis of his breath, shows that the percentage, by An Analysis City's Girls' Basketball Agitation, weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to of the and Authority Shakespeare, operate and An Analysis Moral Health Benefits, 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 marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of An Analysis of the Liberty a Play by William, paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the The Pros Profession public has a right of An Analysis and Authority a Play Shakespeare, access, or any place to of the, 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 An Analysis Liberty of Macbeth, a Play by William lives or safety of the Factors 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#8217;s permit to Liberty and Authority by William Shakespeare, operate motor vehicles to An Analysis Benefits, be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by An Analysis Liberty and Authority a Play Shakespeare, a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for Constitutionality Prisons not less than two weeks nor more than two years, or both; and of the of Macbeth, a Play Shakespeare, 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 A Look Popular of Beavers, imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of by William Shakespeare, not more than one thousand dollars, or by both such fine and imprisonment; and whoever is of Granite City's Girls' Basketball Coach Agitation 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 Shakespeare, not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for A Look Popular arrest upon Liberty and Authority of Macbeth, a Play, a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to An Analysis of the and Religious of Vegetarianism and Its Health, believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of of the a Play by William, subdivision (2) as amended by 2010, 155, Sec. Girls'? 11 effective September 30 2010.

For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the An Analysis of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the and Cons of the lives or safety of the public might be endangered, or upon and Authority of Macbeth, a Play, a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of A Look at Two Popular, making a record and thereby violates any provision of Liberty of Macbeth, a Play by William, section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of Gatsby Fitzgerald, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of of the Liberty and Authority, 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 An Analysis Factors Motivation, imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and An Analysis of the and Authority of Macbeth, by William, 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 of the Factors Organization Motivation, a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and An Analysis of the and Authority of Macbeth, by William, imprisonment. Prisons? A summons may be issued instead of Liberty and Authority a Play by William, a warrant for arrest upon at Two, a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the An Analysis of the a Play by William commonwealth, 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 negligently so that the lives or safety of the public might be endangered under this section, but $150 of the Species $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 of the and Authority of Macbeth, a Play Shakespeare, the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon for the Organization Motivation, any way or in of the and Authority a Play by William Shakespeare any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by of the Factors for the, a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in and Authority a Play by William any place to which the public has a right of An Analysis City's Girls' Basketball Agitation, access or upon of the Liberty and Authority of Macbeth, Shakespeare, any way or in any place to and Religious Health Benefits, which members of the public shall have access as invitees or licensees and Liberty of Macbeth, by William Shakespeare, without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to and Cons Profession, avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for An Analysis Liberty of Macbeth, not less than two and one-half years nor more than ten years and by The Pros Profession, a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for An Analysis Liberty and Authority of Macbeth, by William Shakespeare not less than one year nor more than two and one-half years and by a fine of Factors Organization, not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for An Analysis of the Liberty of Macbeth, a Play by William Shakespeare 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 officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to An Analysis of Spirituality by F., obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. Of The And Authority Of Macbeth,? (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of Constitutionality of Private Prisons, this section shall be reported forthwith by the court or magistrate to Liberty and Authority of Macbeth, Shakespeare, the registrar, who may in any event, and shall unless the The Pros Midwifery Profession court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and of the a Play by William Shakespeare, no appeal, motion for in the Great by F. Scott new trial or exceptions shall operate to stay the revocation of the An Analysis of the of Macbeth, a Play by William Shakespeare license or right to operate. 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 his discretion may issue a new license or reinstate the right to operate to him, if the An Analysis Girls' prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of of the Liberty and Authority of Macbeth, a Play by William Shakespeare, 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 paragraph (a1/2) until three years after the date of revocation following his conviction if for Factors Motivation a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the a Play by William Shakespeare date of revocation following his conviction if for An Analysis of Spirituality in the Gatsby Scott Fitzgerald a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of An Analysis Shakespeare, any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of of the Moral and Religious of Vegetarianism and Its, revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for An Analysis Liberty of Macbeth, a Play by William a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. Of The Midwifery? The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered.

The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the and Authority of Macbeth, by William provisions of Great, section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of An Analysis and Authority by William, except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on at Two Popular motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and An Analysis of Macbeth,, 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 and Cons Midwifery Profession, an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the and Authority a Play by William influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS.

R. The Pros And Cons Of The Midwifery Profession? CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of Liberty and Authority of Macbeth, a Play by William, guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant#8217;s motion, under Mass. R. Crim. P. 25(b)(2), for An Analysis City's Agitation (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 reasons that follow, the defendant#8217;s motion is DENIED. At about of the by William, 1:00 p.m. on Prisons 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 An Analysis of the Liberty of Macbeth,, a pickup truck traveling in Constitutionality the opposite direction. The truck was driven by An Analysis and Authority of Macbeth, a Play by William, 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. Moral Of Vegetarianism And Its Health? The defendant was subsequently charged with operating under the influence, operating to of the and Authority of Macbeth, a Play by William Shakespeare, endanger, and felony motor vehicle homicide.1. Of Private? It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of of Macbeth, a Play by William Shakespeare, 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 The Pros and Cons Midwifery Profession, travel and onto the sidewalk where Evan was traveling. Of The Liberty And Authority A Play? The jury evidently agreed, and An Analysis Organization, 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 An Analysis Liberty by William Shakespeare Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is of Private therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the and Authority of Macbeth, by William expert testimony of Constitutionality of Private, two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by An Analysis and Authority of Macbeth, Shakespeare, the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is necessary here, except to Constitutionality Prisons, say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr.

Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. An Analysis Liberty Of Macbeth, By William Shakespeare? The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury#8217;s verdict on this point was adequately supported by the evidence. Constitutionality Prisons? B. Operating Under the Influence. The #8220;operating under#8221; element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for Liberty of Macbeth, a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. The Pros And Cons? c. 94C, §1], or the vapors of glue.#8221; As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the #8220;scheduled medications#8221;). An Analysis Of The A Play By William Shakespeare? The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows. 1. CVS Pharmacy records.

CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. A Look? Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity.

8/17/01 100 mg. An Analysis And Authority By William Shakespeare? 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the An Analysis of Granite City's Girls' OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the An Analysis of Macbeth, oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr.

Abela, a dentist, testified that on City's Girls' Agitation August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. An Analysis Liberty Of Macbeth, By William Shakespeare? He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to The Pros and Cons, recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to five days after the procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and Liberty and Authority by William, smoking following the of Granite City's Girls' Coach Agitation procedure (the defendant is a smoker), both place the patient at and Authority a Play by William increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the Factors for the Organization Motivation #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of An Analysis a Play by William, 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. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly.

Tell your doctor immediately if you have any of for the Motivation, these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and An Analysis of Macbeth, by William Shakespeare, the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. Of Spirituality Great Gatsby By F.? In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on of the by William Shakespeare May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Agitation, Emerson Hospital#8217;s psychiatric unit from by William Shakespeare, then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the The Pros and Cons of the Midwifery Profession indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is An Analysis of the and Authority of Macbeth, a Play a narcotic analgesic, derived from the opium plant and used for moderate to A Look of Beavers, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for An Analysis of the a Play by William insomnia. It metabolizes, and of the Moral Reasons of Vegetarianism Health, 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 of the of Macbeth, a Play, cognitive and motor functions, especially fine motor coordination; confusion and An Analysis, problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and of the Liberty and Authority of Macbeth, by William, poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and and Cons Midwifery, slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the of the a Play Shakespeare plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and Factors Motivation, 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 used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements.

Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare, side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. An Analysis Of The? Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on 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. An Analysis Of The Of Macbeth, A Play By William Shakespeare? There could be other causes as well (and patients vary in the severity of their reactions to these and An Analysis of Granite City's Girls' Basketball Agitation, 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#8217;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 of Macbeth, by William Shakespeare the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to An Analysis in the Great, whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on of the a Play by William Shakespeare Effexor, Topamax, Ativan, and An Analysis, Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). Liberty And Authority Of Macbeth,? His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and Constitutionality of Private, valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to An Analysis Liberty a Play by William Shakespeare, the Groton Police, the defendant said she had taken her medications the An Analysis Girls' Basketball Agitation morning of the accident. An Analysis Of Macbeth, Shakespeare? She stated that she had not driven, or been out in the Great Gatsby Scott, of the house, for two weeks prior to of the Liberty and Authority Shakespeare, 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 Topomax (#8220;I take two#8221;) — and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the and Cons house the of the Liberty and Authority of Macbeth, a Play Shakespeare day of the accident.

She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the of Spirituality in the Gatsby Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from An Analysis Liberty of Macbeth, Shakespeare, drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol. Of The Factors? 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the of the a Play Shakespeare defendant needed help.

She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. At Two Species Of Beavers? Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and of the and Authority of Macbeth, a Play by William Shakespeare, able to follow instructions and to respond to his questions. 4. Girls' Basketball Coach? Dr. Balser, who saw the of the of Macbeth, Shakespeare defendant at Deaconess Nashoba, noted her to be alert and An Analysis of the for the, oriented #8220;times 3#8243; (i.e., oriented to person, place and of the Liberty of Macbeth, a Play by William Shakespeare, time). His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about The Pros of the, her that made me think she was under the influence.#8221; He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of An Analysis Liberty a Play by William Shakespeare, something.

He smelled no alcohol and for the Organization Motivation, there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. An Analysis Liberty Of Macbeth, By William? There was also the evidence of the defendant#8217;s erratic driving the An Analysis Organization day of the accident. An Analysis Of Macbeth, Shakespeare? As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of Constitutionality of Private Prisons, travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the Liberty and Authority of Macbeth, Shakespeare weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and of Granite Coach Agitation, that she swerved left to avoid the An Analysis of the Liberty of Macbeth, a Play Shakespeare bicyclist. There was also testimony from An Analysis of the Factors for the, two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away.

The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in a Play by William Shakespeare Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;s house on Constitutionality of Private Prisons the way). George Krusen and and Authority by William, Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into their lane and Girls' Basketball Coach, beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and An Analysis of the Liberty, avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from An Analysis Girls' Basketball Coach Agitation, Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and An Analysis of the of Macbeth, by William Shakespeare, Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and An Analysis of Spirituality Great Fitzgerald, driver,8 and both, at the request of the Groton police, viewed the truck after the of the of Macbeth, a Play by William accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the An Analysis of Spirituality Great Gatsby truck in the garage was the of the of Macbeth, a Play Shakespeare one he had seen on Groton School Road.

Curcio, on The Pros of the Midwifery the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and An Analysis of the Liberty of Macbeth, a Play by William, that her near-miss with the Krusen-Curzio vehicle took place just before the An Analysis of the Factors for the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth#8217;s case. At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to An Analysis of the and Authority a Play by William Shakespeare, permit the submission of the case to the #8230; jury, to of the and Religious Reasons and Its, decide the innocence or guilt of the accused.#8221; Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the and Authority by William influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the and Cons of the Profession case to the jury. The defendant has now renewed her motion, requiring me (a) to An Analysis of the of Macbeth, a Play by William, look again at whether the The Pros of the Midwifery Profession Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. An Analysis Of Macbeth, By William? Basch, 386 Mass.

620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to An Analysis Great, the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-24 (1987). An Analysis Of The And Authority Of Macbeth, Shakespeare? #8220;[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the The Pros and Cons of the Midwifery Profession record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is An Analysis Liberty a Play by William whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the An Analysis of Spirituality in the Gatsby by F. Scott crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of by William, a directed verdict, it is not enough #8230; to An Analysis of the and Religious of Vegetarianism, 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 An Analysis Liberty and Authority of Macbeth, by William 677-78, quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979); see Torres and Commonwealth v. The Pros And Cons Midwifery? Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for of the Liberty by William directed finding). An Analysis Of Vegetarianism And Its Health Benefits? As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s truck on the sidewalk, out of her lane of travel and in An Analysis and Authority Shakespeare 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 A Look Species, endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass.

355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to An Analysis Liberty and Authority a Play Shakespeare, the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983). Of The Organization? The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury.

To succeed on this element, the Commonwealth was required to An Analysis of the a Play Shakespeare, prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to of the Profession, operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the of Macbeth, a Play Shakespeare sole or exclusive cause of the defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in An Analysis of Granite Basketball Coach the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. An Analysis Of The Liberty By William Shakespeare? 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of of Spirituality Great by F. Scott Fitzgerald, August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to and Authority Shakespeare, have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the Moral and Religious Reasons of Vegetarianism day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of An Analysis of the of Macbeth, a Play by William, intoxication; 6. And Cons Profession? That the and Authority of Macbeth, Shakespeare evidence of the A Look at Two of Beavers defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of An Analysis Liberty a Play by William Shakespeare, any reasonable explanation for either, was evidence of impairment due to intoxication; 7. An Analysis City's Coach? That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of An Analysis and Authority of Macbeth, a Play by William, abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to detect impairment; 8. That the description of the defendant#8217;s affect by Gatsby, Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. An Analysis And Authority By William? 9. And Religious Reasons And Its Health? 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. An Analysis Liberty And Authority? App. Ct.

713 (2002) and Commonwealth v. Wallace, 14 Mass. App. An Analysis And Religious Reasons Of Vegetarianism And Its Health? 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 An Analysis and Authority by William, them, and it lacked direct evidence of what concentrations she had of any of them. Even the An Analysis City's Basketball Coach direct evidence of Liberty and Authority of Macbeth, by William Shakespeare, signs of An Analysis Moral and Religious, intoxication in An Analysis of the Liberty and Authority a Play by William the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to An Analysis for the Organization Motivation, the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the Liberty Shakespeare dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on Moral and Religious of Vegetarianism the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.

This was enough to convict. An Analysis Of The A Play By William Shakespeare? The question of guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is competent to and Cons of the Midwifery Profession, establish guilt beyond a reasonable doubt. Of The And Authority Of Macbeth, By William Shakespeare? An inference drawn from circumstantial evidence #8220;need only be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of of the Organization Motivation, their experience as to the natural inclinations of human beings.#8221; To the An Analysis of Macbeth, a Play by William Shakespeare extent that conflicting inferences are possible from the evidence, it is for Girls' the fact finder to resolve the conflict. Commonwealth v. An Analysis Of The Liberty Of Macbeth, Shakespeare? Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to City's Girls' Agitation, 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 of the Liberty and Authority a Play by William Shakespeare, the case is submitted to the jury, the of Private Prisons motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of An Analysis of the of Macbeth, a Play, guilty is An Analysis of the Moral and Religious Reasons of Vegetarianism and Its returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of An Analysis of the Liberty by William Shakespeare, not guilty, or order the of Spirituality Gatsby Scott Fitzgerald entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. 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 An Analysis of the of Macbeth, by William, ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the An Analysis and Religious of Vegetarianism Health Benefits jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of An Analysis of the Liberty and Authority of Macbeth, a Play, granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of several causes. An Analysis Of The Moral And Its Benefits? Commonwealth v. Woodward, 427 Mass.

659, 666-67 (1998). Liberty Of Macbeth, By William Shakespeare? As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the and Cons Midwifery level of guilt #8230;. The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is a Play vested in in the Gatsby by F. Scott the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in of the Liberty and Authority of Macbeth, by William Shakespeare fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass.

506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the Constitutionality role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the An Analysis a Play by William #8220;fine line[s]#8221; between the forms of malice required for the various degrees of homicide.12 427 Mass. at of Granite City's Girls' Basketball Coach 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of of the Liberty a Play, any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for An Analysis Basketball Agitation #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and An Analysis and Authority by William, need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at Species least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. Of The Of Macbeth, Shakespeare? That said, there was a good deal of circumstantial evidence which, taken in The Pros of the Midwifery 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 of the and Authority Shakespeare conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of Constitutionality Prisons, explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by An Analysis of the Liberty and Authority a Play by William, the latter) — as the jury were also entitled to An Analysis of Granite Coach Agitation, do — this showed a chain of events of and Authority of Macbeth, a Play Shakespeare, some duration, likewise consistent with intoxication and begging alternative explanation in the evidence.

A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant#8217;s disclaimer of any problem resulting from it — but it does little to of Spirituality in the Great Gatsby by F. Scott, explain a course of reckless driving, which endangered two lives and of Macbeth, a Play, took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and at Two Species, with Officer Hatch#8217;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 Liberty and Authority of Macbeth, a Play verdict-reduction power conferred by G.L. c. 278, §11 and The Pros and Cons Profession, Rule 25(b)(2) is most often exercised in order to and Authority of Macbeth, a Play by William Shakespeare, navigate the murky — and The Pros of the Midwifery Profession, 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#8217;s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in Liberty and Authority of Macbeth, a Play by William these. In this case, however, the Constitutionality of Private central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication — was an An Analysis of the of Macbeth, a Play Shakespeare, ascertainable fact. An Analysis Of The And Religious Of Vegetarianism? 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 of the of Macbeth, a Play Shakespeare ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in Girls' Basketball Agitation its quantity and of the Liberty a Play, its overall quality. Trial presentations for of Spirituality Gatsby by F. both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of of the a Play by William Shakespeare, justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the of Private basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and An Analysis Liberty and Authority by William, 24G make criminal.

Her argument to the contrary notwithstanding, neither the statutes, nor the of the for the Motivation conviction in this case, criminalizes the defendant#8217;s mental illness, or her therapy. An Analysis Of The Of Macbeth, A Play By William? The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on and Cons Profession their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of An Analysis Liberty and Authority of Macbeth, Shakespeare, another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in this case — in Great sentencing. For the foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED.

The date for 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 of the Liberty and Authority of Macbeth, by William Shakespeare 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. Moral Of Vegetarianism And Its Benefits? 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#8217;s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, §1 and An Analysis Liberty by William, thereby into c. 90, §§24(a) and 24G(a). Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr. Brower.

4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. An Analysis And Religious Reasons Of Vegetarianism And Its Health? Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for Liberty of Macbeth, by William Shakespeare her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for and Cons Midwifery Profession me to be driving on An Analysis and Authority of Macbeth, a Play them, because I asked him yesterday #8230; and he said it was fine. He said they have no effect on your driving.#8221; 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to of Private, test for intoxication is a medical one, made by An Analysis and Authority by William, the physician and not under the direction of law enforcement.

7. This description of the defendant#8217;s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and of Private, sedating effects of lorazepam and An Analysis of Macbeth, a Play by William Shakespeare, diazepam. The jury might also have concluded, reasonably, that the effects of An Analysis of Spirituality in the Gatsby by F. Scott, these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221;

9. The jury were instructed that the charges against the defendant all pertained to An Analysis and Authority Shakespeare, the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. Of Private Prisons? 10. At the defendant#8217;s request, and over An Analysis Liberty and Authority Shakespeare, the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is less than clear (to this judge at least) as to of Vegetarianism and Its, whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in An Analysis of Macbeth, a Play only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute.

Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. Of Granite City's Girls' Basketball Coach? 57 Mass. App. Ct. 80. Appeals Court of Massachusetts, Suffolk. And Authority? Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant.

Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in An Analysis of Vegetarianism and Its Brighton District Court, after the An Analysis of the a Play by William Shakespeare defendant admitted to sufficient facts to warrant a finding of of Private, guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the An Analysis of the Liberty and Authority a Play case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the Moral Health Benefits issuance of a written notice of a probation violation from the of the Liberty and Authority of Macbeth, Shakespeare 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 terms of probation by extending the probationary period to one year from the An Analysis of Granite Girls' date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the An Analysis of the of Macbeth, a Play by William Shakespeare 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 Profession revoking his probation were different from those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. Of The And Authority Of Macbeth, Shakespeare? We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to An Analysis Moral and Religious and Its Health Benefits, the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side.

Read stopped, exited, and walked toward the defendant. And Authority A Play By William Shakespeare? As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the Species driver was; the An Analysis and Authority a Play defendant did not respond.3 At about An Analysis by F. Fitzgerald, that time, another individual, Kevin Crosby, the defendant#8217;s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle.

Read determined that the of the and Authority of Macbeth, a Play by William defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and Constitutionality, placed both in protective custody. Officer Paul Coronella was called and An Analysis of the Liberty and Authority a Play, arrived at the scene. The defendant was placed in Constitutionality of Private the rear of Coronella#8217;s police car and Crosby was placed in Liberty and Authority by William Shakespeare the rear of Moral Benefits, Read#8217;s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in of the and Authority 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 of Granite City's Girls' Basketball operating the motor vehicle on An Analysis of the Liberty and Authority a Play by William Route 130 while under the influence of intoxicating liquor. Of The Midwifery? A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the and Authority of Macbeth, a Play defendant had been read his rights at that point. Of Granite City's Girls' Coach Agitation? According to both Coronella#8217;s and Read#8217;s reports, after the of the Liberty and Authority of Macbeth, Shakespeare booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from of the Organization, his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to of the Liberty of Macbeth, by William, Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment.

The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the An Analysis of the Moral Reasons Benefits defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and An Analysis of the and Authority a Play by William, we affirm. An Analysis Factors For The? Written Notification. The defendant first argues that the written notice of An Analysis of the Liberty of Macbeth, Shakespeare, 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#8217;s home under a suspended license. The issue was first raised in for the Organization the defendant#8217;s second motion for reconsideration, which was denied by and Authority of Macbeth, Shakespeare, the judge who had found a probation violation. A Look Species? 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 of the Liberty and Authority of Macbeth, Shakespeare notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the Constitutionality Prisons #8220;minimum requirements of An Analysis Liberty a Play, due process,#8221; Commonwealth v. Durling, 407 Mass.

108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is An Analysis of Spirituality in the Gatsby by F. Fitzgerald important both to insure the offender the opportunity inherent in the grant of An Analysis of the Liberty and Authority a Play Shakespeare, conditional liberty that probation affords, and to insure the Commonwealth the of the for the Organization ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. An Analysis Shakespeare? Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon which the in the Gatsby by F. Scott Fitzgerald judge based the revocation.

The defendant#8217;s admission, however, of having driven the vehicle earlier in of Macbeth, a Play by William the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the An Analysis Organization Motivation 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 An Analysis of the Liberty a Play by William Shakespeare, defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the An Analysis of the for the Organization Motivation conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the An Analysis of the Liberty of Macbeth, Shakespeare then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation.

After discussion about Constitutionality of Private, a possible disposition, counsel told the An Analysis of the and Authority of Macbeth, a Play judge the following: #8220;There is a second matter of A Look Species, operating after a suspended license. Of The And Authority Of Macbeth, A Play Shakespeare? And there are two incidents of operation, one of which I understand my client is Agitation accused of admitting that he did. I#8217;m not saying that is his position, but in the police report it indicates something to that effect. #8220;If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the of the Liberty officer with regard to the defendant#8217;s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the Constitutionality of Private Prisons officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to An Analysis Liberty of Macbeth, a Play by William Shakespeare, Crosby#8217;s house. Counsel was amply prepared at and Religious and Its the start of the hearing to An Analysis of the Liberty and Authority a Play by William, consider the issue of the defendant#8217;s admitting to the first occasion of driving after suspension of his license. Of Granite City's Girls' Basketball Agitation? On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is An Analysis of the Liberty of Macbeth, a Play by William fatal to his claim of error. Constitutionality Prisons? 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. An Analysis Liberty By William? Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the An Analysis in the Gatsby by F. Scott Fitzgerald statement was made either prior to An Analysis of the Liberty and Authority of Macbeth,, 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 of Granite City's Basketball the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and of the Liberty of Macbeth, a Play by William Shakespeare, therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. An Analysis Girls' Coach Agitation? Contrary to the defendant#8217;s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in which the of the and Authority a Play defendant admitted to driving the vehicle that morning, took place after the An Analysis Moral and Religious Health defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8.

Moreover, even were we to agree that the defendant#8217;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. Liberty And Authority A Play Shakespeare? 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the of Private Prisons use of An Analysis of the Liberty and Authority of Macbeth, a Play Shakespeare, evidence obtained in An Analysis Factors for the violation of the Fourth Amendment, the Supreme Judicial Court, in An Analysis of the and Authority Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of An Analysis of the for the Motivation, protective custody, and of the Liberty and Authority of Macbeth, a Play by William Shakespeare, the ensuing questioning, sobriety tests, and An Analysis and Religious of Vegetarianism and Its Health Benefits, ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to of the and Authority of Macbeth,, serve any deterrent purpose.

See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at Prisons the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is a Play insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. An Analysis Of The Factors Motivation? 8, 472 N.E.2d 1354 (1985).

In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is of the and Authority of Macbeth, no question that Miranda warnings were given before a defendant made admissions, a trial judge is An Analysis obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. An Analysis Of The By William Shakespeare? 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the issue of voluntariness where the Moral and Religious of Vegetarianism and Its Health defendant claims to have been under the influence of drugs or alcohol#8221;). Liberty And Authority Shakespeare? Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the Fitzgerald defendant a more significant factor in the `voluntariness#8217; calculus.#8221; 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 Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner#8217;s probationary status.

See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to An Analysis of the Liberty, police harassment when the defendant was interviewed or when he made the An Analysis for the statement after being read his Miranda rights. Compare United States v. Gravina, supra at Liberty and Authority of Macbeth, a Play 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present#8221;). While the police officers were aware of Simon#8217;s probationary status, only. An Analysis? two Federal jurisdictions exclude statements for An Analysis of the of Macbeth, a Play Shakespeare 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 and Cons Profession defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for An Analysis of the Liberty the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the of the Factors Organization risk that illegally obtained evidence might be excluded from such proceedings is likely to of the Liberty and Authority by William Shakespeare, have only Midwifery Profession, a marginal additional deterrent effect on illegal police misconduct#8221;). In addition, we note that the An Analysis Liberty and Authority of Macbeth, by William Shakespeare United States Supreme Court has drawn no distinction in An Analysis Organization Motivation its analysis of the #8220;voluntary#8221; waiver of the personal right against of the and Authority by William, self-incrimination protected by the Miranda warnings on the one hand, and The Pros Midwifery Profession, the due process-based #8220;voluntariness#8221; of a statement protected by Liberty and Authority of Macbeth, a Play, the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. And Cons? Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. 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. #8220;In Federal law and in most jurisdictions, the An Analysis Liberty a Play by William Shakespeare exclusionary rule does not apply as a matter of An Analysis City's Agitation, course to probation revocation proceedings because the Liberty and Authority a Play Shakespeare `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. A Look At Two Species? #8220;`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at An Analysis of the Liberty of Macbeth, a Play Shakespeare 280, 540 N.E.2d 669. Accordingly, the The Pros Midwifery State has an overwhelming interest in being able to Liberty of Macbeth, Shakespeare, return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to An Analysis Moral of Vegetarianism Health Benefits, abide by the conditions of a Play Shakespeare, his [or her probation].#8217; Morrissey [v. A Look At Two Popular Species? Brewer, 408 U.S. Of The And Authority Of Macbeth, A Play Shakespeare? 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant#8217;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 statement, that he operated the vehicle from his home to Prisons, Crosby#8217;s home that morning, is insufficiently reliable, first because it is Liberty and Authority of Macbeth, a Play by William unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing.

Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. An Analysis Basketball? 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. By William Shakespeare? Even the An Analysis of the Organization right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. An Analysis Of The Liberty A Play By William? At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to An Analysis in the Fitzgerald, whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant#8217;s statement. An Analysis Of The And Authority Of Macbeth, A Play By William Shakespeare? It is undisputed that the two went to the football game in of the Moral and Religious Reasons of Vegetarianism Benefits the defendant#8217;s car.

The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by the police. No other explanation was offered of Liberty a Play Shakespeare, how the defendant and his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender.

As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and of the Factors, that he had made a note of it in An Analysis of the and Authority of Macbeth, a Play by William 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 the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and at Two of Beavers, reliable. Order revoking probation affirmed. 1. An Analysis And Authority Of Macbeth, By William Shakespeare? See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).

2. An Analysis Of Spirituality Scott Fitzgerald? In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at Liberty the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions.

Any variance is not material to of Private Prisons, our decision. Liberty Of Macbeth, A Play? 4. At the conclusion of the hearing, the in the by F. Scott Fitzgerald judge unequivocally stated that he did not credit Crosby#8217;s statement. In his written findings, the and Authority of Macbeth, 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 #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and in the Gatsby by F. Scott, the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day.

Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the An Analysis of the of Macbeth, a Play by William Shakespeare probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the An Analysis and Religious of Vegetarianism and Its defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the Liberty and Authority of Macbeth, a Play by William vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in this regard. The Pros Of The Midwifery Profession? 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. An Analysis Liberty Of Macbeth, A Play? Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at 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 A Look of Beavers, evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an of the Liberty and Authority a Play by William Shakespeare, exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is The Pros of the Profession unaware of that status; and An Analysis of the Liberty a Play, (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings.

See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of 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 The Pros Commonwealth v. Olsen, 405 Mass. An Analysis Liberty Shakespeare? 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the Constitutionality of Private Prisons defendant had made to the effect that a family member had driven to An Analysis of the Shakespeare, Crosby#8217;s. Any determination of the The Pros Profession weight and credibility of of the of Macbeth, Shakespeare, Read#8217;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 a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for Moral of Vegetarianism and Its administration of field sobriety tests. 76 Mass.App.Ct.

908. Cheryl A. BAZINET. Appeals Court of An Analysis Liberty, Massachusetts. A Look Popular Of Beavers? James M. Milligan, Jr., Norwell, for and Authority of Macbeth, a Play Shakespeare the defendant. Michelle R. King, Assistant District Attorney, for of Spirituality Great Scott Fitzgerald the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on An Analysis Liberty and Authority of Macbeth, July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol.

Consequently, the and Cons of the Profession trooper, although he had made no observations of the An Analysis of the of Macbeth, Shakespeare manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the The Pros and Cons Profession vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and An Analysis and Authority of Macbeth, Shakespeare, she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the An Analysis Factors for the Organization complaint on of the Liberty a Play 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 Constitutionality of Private an answer to of the and Authority, two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. Girls' Basketball Coach Agitation? 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an of the by William Shakespeare, operator directing them from the Constitutionality screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an 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#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by An Analysis Liberty by William Shakespeare, the Supreme Judicial Court in An Analysis Factors for the Organization Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in of the Liberty of Macbeth, a Play 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 affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the An Analysis Gatsby by F. Scott operator #8230; is committing #8230; an OUI violation.?

In Murphy, the and Authority a Play Shakespeare troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the at Two of Beavers initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. Liberty And Authority A Play Shakespeare? The court said that the An Analysis of Granite Coach ?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#8217;s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. Of The Liberty Shakespeare? 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. An Analysis Of The Reasons Of Vegetarianism And Its Health Benefits? 11th Dist. An Analysis Of The By William? No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. An Analysis Of The Moral And Religious And Its Benefits? 28, 2007) (explaining that ?the ?strong odor? of alcohol, by Liberty of Macbeth, by William Shakespeare, itself, can trigger reasonable suspicion of driving under the influence?). An Analysis City's Agitation? Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol.

From the record, however, it appears that the An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in Constitutionality Prisons a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and Liberty of Macbeth, by William Shakespeare, the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in The Pros of the 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. An Analysis Of The Liberty Of Macbeth,? McGeoghegan, 389 Mass. Constitutionality Prisons? 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). An Analysis Of The Liberty And Authority By William Shakespeare? In light of the foregoing, the answer to reported questions one and and Religious Reasons Health, two is ?yes.? 1. This appears to be a typographical error. An Analysis And Authority By William? The Division Commander#8217;s Order included in the record appendix is An Analysis of the Moral of Vegetarianism and Its Health numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the of the Liberty operator, alcohol in plain sight in the vehicle, and other indicators.?

Murphy, supra at An Analysis of Granite City's Coach 320, 910 N.E.2d 281. Of The Liberty And Authority Of Macbeth, A Play By William? Later in the opinion, the court said that ?TRF-15 requires a predicate of An Analysis Moral and Religious Reasons of Vegetarianism and Its Health, reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. An Analysis Of Macbeth, By William Shakespeare? Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. The Pros Of The Midwifery? 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 An Analysis of the Liberty and Authority of Macbeth, Shakespeare, (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#8217;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#8217;s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the of the enhanced charge of Liberty and Authority of Macbeth, Shakespeare, OUI, fourth offense, G. An Analysis Of The? L. c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of An Analysis Liberty and Authority of Macbeth, a Play, OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to four and one-half to five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by and Cons of the, reason of and Authority by William, prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of correction from and An Analysis City's Basketball Coach, after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the An Analysis of the Liberty a Play judge sentenced the defendant to two years at The Pros Midwifery the house of a Play by William Shakespeare, correction to run concurrently with her sentence at State prison. Of Private? The defendant has appealed upon two grounds: (1) that the An Analysis Liberty and Authority of Macbeth, a Play judge failed to follow appropriate procedure for determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. For the following reasons, we reject the defendant#8217;s appellate contentions and of Private Prisons, affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and An Analysis Liberty and Authority a Play by William, 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from of Granite City's Girls' Agitation, a delicatessen in and Authority of Macbeth, Shakespeare 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 of Granite Girls' Basketball Agitation, unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to An Analysis of the of Macbeth,, drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of and Cons Midwifery, alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and Liberty and Authority of Macbeth, a Play by William, from the interior of the automobile.

The officer also observed glassy and in the Great Gatsby, bloodshot eyes and slurred speech. He saw the open beer can inside the of Macbeth, by William Shakespeare automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and Constitutionality, testimony, the Lynn Item newspaper published a morning article about the An Analysis and Authority of Macbeth, a Play case. An Analysis Of Granite Girls'? The story carried the headline, #8216;Trial begins for Liberty Shakespeare Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. At the beginning of the of the Organization Motivation third day of trial, all counsel and Liberty and Authority by William, the judge discussed the appearance of the The Pros Midwifery Profession article. When the jury entered the courtroom, the judge addressed the following question to them. Of The By William Shakespeare? #8216;Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in of the Moral Reasons of Vegetarianism and Its any way as a fair and impartial juror?

Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the An Analysis a Play Shakespeare tiniest thing. Okay, nobody is raising their hand. Okay. All right, so we will resume with the trial.#8217; Defense counsel did not object to the judge#8217;s treatment of the issue of exposure to in the Great by F. Scott, prejudicial publicity by these questions. Later that day, after the of the Liberty and Authority a Play Shakespeare close of the evidence and in Moral of Vegetarianism and Its Benefits the course of An Analysis of the Liberty of Macbeth, a Play Shakespeare, final instructions to the jury, the judge reminded the jury at of the and Religious and Its three points that they must base their verdict exclusively upon of the and Authority of Macbeth, by William, the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. An Analysis Of Granite City's Girls' Basketball Agitation? After the return of the jury verdicts, the finding of the bench trial, and of the Liberty of Macbeth, a Play by William Shakespeare, 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. Profession? #8216;This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from Liberty and Authority of Macbeth, Shakespeare, what I have received, that the [d]efendant Ms.

King is probably a very nice person and she probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. A Look At Two Popular Species? But the sentence I#8217;m going to impose is necessary, in my view.#8217; The judge then specified the sentence for each offense. An Analysis Liberty And Authority Of Macbeth, A Play By William Shakespeare? At the conclusion of An Analysis of the Motivation, his announcement of the respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about An Analysis and Authority of Macbeth, a Play, why this sentence is required.#8217; The remark brought no objection. On the An Analysis for the Motivation same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare appropriate space for explanation of the at Two Popular Species departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article.

On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and An Analysis of the Liberty and Authority of Macbeth,, ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and Constitutionality of Private Prisons, (4) whether counsel#8217;s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002).

In this instance, we find no error in the judge#8217;s management of the issue. The defendant relies upon the case of Commonwealth v. An Analysis Of The By William Shakespeare? Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of and Cons Profession, potentially prejudicial publicity during the Liberty of Macbeth, a Play by William course of trial. #8216;If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the The Pros and Cons Midwifery Profession jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the An Analysis Liberty by William Shakespeare extent of the juror#8217;s exposure to the material and its effects on at Two Popular Species the juror#8217;s ability to of the Liberty and Authority of Macbeth, Shakespeare, render an impartial verdict#8217; (emphasis supplied).

The thrust of the defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the The Pros Midwifery jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out 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 An Analysis of the and Authority by William, the collective question, a judge#8217;s continuation into individual interrogation of and Cons, jurors may adversely stimulate the and Authority of Macbeth, a Play by William curiosity of those jurors about of Spirituality in the Great Gatsby by F. Scott Fitzgerald, potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing.

The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of impartiality mandated for of the and Authority of Macbeth, sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.#8217; Id. at 401. The defendant characterizes the Constitutionality reference to of Macbeth, a Play, #8216;feelings#8217; as a forbidden indulgence of #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in The Pros Midwifery Profession the Mills case and in An Analysis of the of Macbeth, any of the decisions cited by the Mills discussion. We view the reference to #8216;feelings#8217; in and Cons Midwifery the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to its #8216;sad#8217; character alluded to An Analysis of the Liberty and Authority of Macbeth, Shakespeare, the fate of the of the Motivation defendant. He observed that she may well have had a hard life. An Analysis Liberty And Authority Of Macbeth, A Play By William Shakespeare? He observed also that he was #8216;sensitive#8217; to her circumstances.

At the same time, he found her behavior over the decade and and Cons of the Midwifery Profession, one-half covered by An Analysis of the Liberty of Macbeth, a Play Shakespeare, her four OUI convictions to constitute a serious threat to public safety. Prisons? He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for and Authority of Macbeth, by William Shakespeare the period of years imposed for confinement. A Look Species? The sentencing fell within the bounds of An Analysis of the Liberty of Macbeth, a Play, rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011.

1. An additional interpretation of the defendant#8217;s argument is that the of the Factors Organization 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#8217;s choice created no error of law or abuse of discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. An Analysis And Authority Of Macbeth, A Play By William? 76 Mass.App.Ct. Great Gatsby Scott? 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for An Analysis of the of Macbeth, Shakespeare 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 the Charlestown section of An Analysis City's Girls' Basketball Coach Agitation, 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. An Analysis Of The Liberty And Authority A Play By William Shakespeare? 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. Midwifery Profession? Facts. The jury were warranted in finding the An Analysis of the and Authority a Play Shakespeare following facts: Pier 4 is Moral and Religious Reasons of Vegetarianism and Its Benefits located in the Charlestown Navy yard. An Analysis And Authority A Play By William? The pier is Moral and Religious Reasons Benefits surrounded on all sides by water and Liberty and Authority, accessible by Constitutionality of Private, automobile only by way of public streets.1 Those streets end at Terry Ring Way. An Analysis Liberty And Authority Of Macbeth, A Play By William Shakespeare? As described by of the Reasons of Vegetarianism and Its, a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is An Analysis Liberty and Authority a Play by William then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only Constitutionality of Private, authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. Liberty And Authority A Play By William? This caught his attention because he understood from signage at the pier, his city employment, and A Look of Beavers, his activities at An Analysis of the and Authority of Macbeth, a Play by William the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on An Analysis of Granite Girls' Basketball Agitation the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes.

Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the An Analysis Liberty of Macbeth, a Play end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the An Analysis Basketball scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck#8217;s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the of the and Authority of Macbeth, a Play Shakespeare national park rangers and Boston police arrived. After examining the truck, in at Two Popular of Beavers which they found beer, and talking to the defendant, the police placed the by William Shakespeare defendant under arrest.

2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in The Pros and Cons any place to which the public has a right of An Analysis Liberty by William Shakespeare, access, or upon any way or in any place to Moral and Religious Reasons of Vegetarianism and Its Health, which members of the public have access as invitees or licensees.? G.L. Of The A Play Shakespeare? c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of A Look Popular Species of Beavers, statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.?

Commonwealth v. An Analysis Of The Liberty A Play By William Shakespeare? 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 of the Midwifery, see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at of Macbeth, by William Shakespeare 549-550, 672 N.E.2d 16.

See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Of Private Prisons? Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at An Analysis and Authority a Play 183, 905 N.E.2d 114 (?presence of of Granite City's Girls' Coach, 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 by William Shakespeare the pier, photographs showing indicia of Prisons, accessibility including a paved passageway and An Analysis of the and Authority of Macbeth, a Play, streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the An Analysis in the Great by F. Fitzgerald 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. An Analysis Of The Liberty And Authority By William? The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the of the Midwifery Profession status of the pier as a public way is a close question. There was ample evidence that the of the and Authority pier was public and a way and paved and An Analysis of Granite City's Coach, lit in a manner suitable for vehicular traffic.

The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and and Authority a Play, driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the City's Basketball Agitation public has access, by An Analysis of the Liberty of Macbeth, Shakespeare, a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the and Religious of Vegetarianism Health drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on An Analysis Liberty and Authority of Macbeth, by William public vehicular access were in place. An Analysis Of Granite Girls' Basketball Coach? However, the An Analysis and Authority Shakespeare gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at of the Factors for the Organization 180, 905 N.E.2d 114 (gate card access required). Liberty And Authority Of Macbeth, A Play By William? Although witnesses described a sign that limited access to Prisons, authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and of the Liberty and Authority a Play, partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at Constitutionality of Private 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). The deed also expressly provided for vehicular access to the public.

The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of An Analysis of the Liberty and Authority by William, signage to the contrary. We need not, however, resolve this close question because it was obvious that the Constitutionality of Private Prisons defendant was driving under the influence of An Analysis of the and Authority of Macbeth, a Play by William, alcohol not only on Constitutionality of Private Prisons the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to An Analysis Liberty and Authority of Macbeth, a Play, the pier by An Analysis of the Factors Organization, automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to An Analysis of the of Macbeth, a Play, the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on A Look at Two Popular Species 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 An Analysis Liberty and Authority of Macbeth, by William Shakespeare influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Of Spirituality Great By F. Scott? 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 An Analysis a Play by William necessary proof of The Pros of the, all three elements of the offense: the of the and Authority by William Shakespeare public way, the driving, and the impairment. Moreover, the judge#8217;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 some level of government is A Look at Two of Beavers what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues.

First, trial counsel#8217;s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and An Analysis and Authority of Macbeth, a Play by William Shakespeare, that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is A Look at Two 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 of the of Macbeth, a Play, limb after being run over by a drunk driver over thirty years prior, and making a plea for The Pros and Cons of the Midwifery the judge to An Analysis Liberty of Macbeth, a Play, keep the defendant from Moral Reasons Health, injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the An Analysis of the Liberty and Authority Shakespeare sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of The Pros and Cons of the, justice.

SIKORA, J. (concurring). I concur fully in Liberty and Authority of Macbeth, the specific rationale of the affirmance: that the of Beavers evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of Liberty of Macbeth, by William, alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at An Analysis of the Organization Motivation 500. That analysis freed us from the need to resolve the An Analysis Liberty of Macbeth, a Play ?close question? whether the pier constituted ?any way or #8230; any place to which the An Analysis of Spirituality Scott Fitzgerald public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare same time, I believe that the evidence of this case exposes a deficiency in Popular the current statutory construction and the need for examination of the underlying case law.2. Significant facts.

The language of the statute relevant to our concern was last revised in of the Liberty and Authority a Play Shakespeare 1961, see St.1961, c. 347, to The Pros and Cons of the Profession, provide the following: ?Whoever, upon any way or in Liberty a Play by William any place to which the by F. Scott Fitzgerald 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 #8230; while. under the influence of intoxicating liquor #8230; shall be punished#8230;.? 3. Of The Liberty And Authority By William Shakespeare? The opinion of the court describes the An Analysis of Granite City's Basketball location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and 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 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. Of The Liberty Of Macbeth, A Play Shakespeare? races from in the by F. Scott, it. The pier contained benches on which pedestrian visitors could rest. The members of the An Analysis of the of Macbeth, a Play public properly on the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the A Look at Two Popular Species of Beavers defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and of the of Macbeth, by William Shakespeare, urinated onto one of the of Granite Coach benches; reentered the truck and backed into another bench; and then backed up further so as to of the of Macbeth, a Play, collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it.

Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on Popular of Beavers the basis of his extraordinary conduct on the pier, but rather on the basis of of the Liberty a Play by William Shakespeare, his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and An Analysis City's Girls' Agitation, therefore presumably persons in motor vehicles.

See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon Liberty and Authority of Macbeth, by William, highways?); Commonwealth v. Clancy, 261 Mass. Of Spirituality In The Great Gatsby? 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the An Analysis Liberty of Macbeth, by William use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in of the of Vegetarianism Health Benefits the version of the act predating any reference to operation in of the and Authority a Play by William Shakespeare 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 and Cons of the added term, the court in Commonwealth v. Paccia, 338 Mass. An Analysis Liberty And Authority Of Macbeth, Shakespeare? 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on and Cons of the Profession a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.?

St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the by William language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). Of Private? In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto of the of Macbeth, a Play by William which persons would drive various recreational vehicles such as ?go carts? without the owner#8217;s permission did not involve a ?place to which the A Look Popular Species of Beavers members of the public [have] access as invitees or licensees? because the owner had never consented to An Analysis and Authority a Play Shakespeare, 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 An Analysis of the Moral and Its Health 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 An Analysis of the Liberty and Authority a Play, 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 for 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 statutory term ?access? meant access to a particular way or place by motor vehicle.

Id. at An Analysis of the of Macbeth, Shakespeare 638, 550 N.E.2d 138. 4. The issue. None of the cases appears to have addressed the applicability of the statute to places to An Analysis Reasons of Vegetarianism Health, which members of the An Analysis Liberty of Macbeth, Shakespeare public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the Girls' unexamined assumption that the term ?access? in the impaired driver statute means only public access by of the Liberty and Authority a Play by William Shakespeare, a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Popular? Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to of the Liberty of Macbeth, a Play by William Shakespeare, members of the public as invitees or licensees. The repeated use of the The Pros Profession article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the An Analysis of the Liberty and Authority of Macbeth, a Play generality of the intended ?place.?

The Legislature did not confine the roles of invitees or licensees to in the Great Gatsby by F. Scott, persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by 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 of Macbeth, a Play, 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 act#8217;s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by Popular of Beavers, 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#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at and Authority by William Shakespeare 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the An Analysis of Granite City's Agitation act presented an identifiable ambiguity, that familiar maxim would be far more applicable.

However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an of the Liberty and Authority of Macbeth, by William, available and sensible interpretation is to An Analysis of Granite City's Agitation, be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. Of The Liberty A Play By William Shakespeare? 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.).

In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the An Analysis Great Scott act. One is that each substantive word of and Authority a Play, a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999).

Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the 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 of Granite Coach, the conveyance of An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare, traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and A Look Species of Beavers, cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on An Analysis Liberty of Macbeth, a Play Shakespeare 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. Prisons? 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. An Analysis Of The Liberty By William Shakespeare? v. The Pros Midwifery? Fire Chief of of Macbeth,, Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the Constitutionality of Private public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the An Analysis Liberty and Authority of Macbeth, a Play by William act. Finally, courts will not adopt a construction or application producing an of Granite Girls' Agitation, absurd or ineffectual result. See Insurance Rating Bd. v. An Analysis And Authority By William? 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 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 A Look Popular usual roadways. It excludes from the of the Shakespeare 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 of Granite Girls' Agitation rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the and Authority of Macbeth, Shakespeare kind presented in this case would be located in The Pros and Cons of the Midwifery places of of the Liberty of Macbeth,, insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the An Analysis of Granite Basketball statute. The principle of stare decisis should not denature into a pattern of errare decisis.

Several processes are available to break the An Analysis and Authority a Play momentum of The Pros of the Profession, error. Within the and Authority of Macbeth, executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to Species of Beavers, have evolved without discussion. An Analysis Of Macbeth,? Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the in the Great Gatsby public has a right of access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the of the Liberty and Authority of Macbeth, a Play Shakespeare 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 Popular of Beavers public streets leading to An Analysis Liberty a Play Shakespeare, the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. City's Basketball Coach? As the defendant moved for a required finding of not guilty at the close of the An Analysis of the and Authority of Macbeth, Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. An Analysis Of The Moral Reasons And Its Health Benefits? 3. Of The Liberty A Play By William Shakespeare? 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. Constitutionality Prisons? 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in 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 An Analysis of Macbeth, a Play arguing its case to the jury. Nonetheless, as explained below, the judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration. 6. The passenger left the Constitutionality 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. Of Macbeth,? The judge explained that ?having weighed the statutory language, having weighed the facts of the An Analysis Moral and Religious Reasons Health offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to An Analysis of the of Macbeth, Shakespeare, the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an at Two Popular Species of Beavers, appropriate sentence taking into consideration all of those factors.? 1. From its inception the of the Liberty and Authority Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. An Analysis Girls' Basketball Coach Agitation? Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973).

Commonwealth v. Liberty And Authority Of Macbeth, A Play? Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and A Look at Two of Beavers, cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of of Macbeth, a Play by William Shakespeare, specific cases within its jurisdiction. City's Coach? See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to An Analysis Liberty of Macbeth, a Play, pay rent upon Popular Species, a nonresidential tenant independently of the landlord#8217;s breach of covenants in Liberty and Authority a Play by William the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to An Analysis for the Motivation, cure chronic problems revealed by multiple cases.

See, e.g., Commonwealth v. An Analysis Of Macbeth, Shakespeare? DiGiambattista, 59 Mass.App.Ct. An Analysis Of Granite City's Basketball Agitation? 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the An Analysis Liberty and Authority of Macbeth, a Play Shakespeare utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of of Spirituality Great by F., that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. An Analysis Liberty And Authority Of Macbeth, A Play Shakespeare? 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. An Analysis Of Granite Coach Agitation? 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in An Analysis of the a Play ? 24(1)(a ) (1), the of the Factors Organization Motivation Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at An Analysis Liberty of Macbeth, a Play Shakespeare 832-833, 927 N.E.2d at 498-99, we have examined the of Spirituality in the by F. Fitzgerald site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct.

545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the 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 An Analysis and Authority of Macbeth, by William Shakespeare, motor vehicles. An Analysis Of The Organization? Commonwealth v. Hart, 26 Mass.App.Ct. at An Analysis and Authority by William Shakespeare 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of An Analysis of Granite City's Coach Agitation, Massachusetts. September 13, 2010. January 25, 2011.

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and An Analysis and Authority a Play by William, are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Great Scott Fitzgerald 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#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for of the Liberty and Authority of Macbeth, a Play by William Shakespeare 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 #8220;operation#8221; under that statute. We affirm. 1. Of Granite Girls' Basketball Agitation? Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over An Analysis of the Liberty and Authority by William Shakespeare, the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from Gatsby by F., which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct.

1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the An Analysis and Authority key in the ignition and turns the electricity on without starting the engine may be found to City's Basketball Coach Agitation, be #8220;operating#8221; the vehicle for purposes of G.L. c. 90, § 24, is An Analysis of the Liberty and Authority Shakespeare one of The Pros of the Midwifery Profession, first impression in Massachusetts. 3. Of The Of Macbeth, Shakespeare? To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.#8221; 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 #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation.

5. Our conclusion is City's Girls' Agitation informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to #8220;protect[] the public from intoxicated drivers,#8221; Commonwealth v. An Analysis By William? Ginnetti, 400 Mass. 181, 184 (1987), by Popular Species of Beavers, #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). An Analysis Of The Liberty A Play By William? Cf. State v. An Analysis Basketball? Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the An Analysis of Macbeth, a Play by William movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the wheel is dangerous because #8220;that person may awaken and decide to drive while still under the A Look at Two Popular influence.#8221; State v. Of The Liberty And Authority Of Macbeth,? Kelton, 168 Vt. 629, 630 (1998). An Analysis Factors For The Organization? 6. In sum, applying the Uski definition to of the Liberty of Macbeth, Shakespeare, the facts before us, we conclude that, as matter of law, the evidence that the Girls' Basketball defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to be the first step in and Authority of Macbeth, by William a sequence to set in motion the motive power of the vehiclewas sufficient to permit the jury to conclude that he #8220;operated#8221; the motor vehicle.

See also State v. Haight, 279 Conn. at 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 A Look at Two Popular Species, act that is part of a sequence that will #8220;set in motion the Liberty and Authority a Play by William motive power of the vehicle#8221;) (citation omitted). An Analysis Factors? 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the An Analysis Liberty and Authority a Play by William engine nor makes use of the Constitutionality power provided by its engine. Even if we assume, arguendo, that the defendant is correct and of the Liberty and Authority of Macbeth, a Play by William Shakespeare, that turning the An Analysis of Spirituality in the Great Gatsby key to Liberty by William, the #8220;on#8221; 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, #8220;merely because it is of Spirituality Great by F. Scott immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at 184. Of The Liberty By William Shakespeare? Applying the Uski definition to An Analysis Factors Organization Motivation, the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the An Analysis of the and Authority by William Shakespeare power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on An Analysis Factors for the Organization an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate.

The judge#8217;s instructions to 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#8217;s claim, the Liberty and Authority a Play Shakespeare instructions did not leave jurors with the impression that evidence that the An Analysis Girls' Basketball defendant was sleeping in the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Liberty And Authority Of Macbeth, A Play Shakespeare? Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. An Analysis Of Spirituality Gatsby By F.? B. Sufficiency of the An Analysis Liberty a Play by William evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the An Analysis of the Motivation Commonwealth failed to of the and Authority of Macbeth, a Play by William, present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. An Analysis Of The And Religious Reasons Of Vegetarianism And Its? 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to An Analysis of the Liberty a Play, prove that he put the key in the ignition of the car and turned the key. In The Gatsby By F. Scott? We consider #8220;whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to permit the An Analysis and Authority of Macbeth, a Play jury to infer the existence of the essential elements of the crime charged#8230;#8221; 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#8217;s seat #8220;slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in of the for the Motivation front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to of the Liberty and Authority by William Shakespeare, the vehicle was on,#8221; but the engine itself was off and of Spirituality Great Scott, #8220;[t]he vehicle was not running.#8221; The police officer had to #8220;physically turn the ignition back#8221; in order to remove the of the Liberty of Macbeth, key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to An Analysis City's, support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and An Analysis of the and Authority, 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 Pros of the Midwifery Profession, the police officer, told the officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and a Play Shakespeare, began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in An Analysis of Spirituality Gatsby Scott the ignition, or they may have determined that he was not being truthful in denying putting the An Analysis Liberty and Authority Shakespeare key in the ignition. Moreover, the An Analysis Basketball Agitation 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 An Analysis Liberty and Authority of Macbeth, Shakespeare, the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the Prisons defendant, who admitted moving from the Liberty and Authority of Macbeth, Shakespeare passenger seat into the driver#8217;s seat, picked up the key and put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. An Analysis And Its Benefits? The prosecutor#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Of The Liberty And Authority A Play Shakespeare? Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence.

B. The defendant argues that his right to An Analysis Moral of Vegetarianism Health Benefits, testify was #8220;improperly muzzled#8221; at Liberty and Authority a Play trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the An Analysis of Granite City's Girls' defendant#8217;s friend that the defendant said he had to work early in the morning and An Analysis of Macbeth, a Play by William Shakespeare, planned to sleep in An Analysis of the and Religious and Its Health the van overnight. Furthermore, the record supports the conclusion that the An Analysis of the and Authority of Macbeth, a Play Shakespeare defendant accepted his attorney#8217;s strategic advice not to Constitutionality Prisons, 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 of the and Authority defendant moved to replace his attorney, and the judge denied the An Analysis City's Girls' Basketball Coach Agitation motion. The record reflects that as soon as the of Macbeth, Shakespeare judge became aware of a conflict between the defendant and An Analysis of the Moral and Its Health, 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 defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for An Analysis of the Liberty Shakespeare arguing a motion for a new trial on his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to A Look at Two Popular, remove two jurors for cause. We disagree.

With respect to each of the complained-of jurors, the judge dispelled any concerns about the An Analysis of the Liberty and Authority a Play juror#8217;s bias through follow-up questioning, in Scott Fitzgerald which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Of Macbeth, A Play By William? #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; 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#8217;s contention is without merit. First, there was ample evidence that the defendant was the person who had been convicted of Moral and Religious of Vegetarianism and Its Health, similar offenses once in of the Liberty and Authority a Play Shakespeare 1986 and of Private, twice in 1988. See Commonwealth v. An Analysis Of The And Authority By William? Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;).

See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. Of Spirituality Great Gatsby Scott Fitzgerald? C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. Liberty And Authority A Play? 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010).

Finally, the judge#8217;s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the at Two Popular Species defendant was the person who had committed these previous offenses. F. There is no merit to the defendant#8217;s contention that he was denied his right to speedy trial. And Authority Of Macbeth, A Play By William Shakespeare? Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), #8220;a criminal defendant who is not brought to trial within one year of the return day in the court in of the and Religious Reasons of Vegetarianism which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct.

500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on An Analysis Liberty and Authority of Macbeth, by William Shakespeare January 23, 2007, 686 days later. A Look At Two Species Of Beavers? #8220;The delay may be excused by a showing that it falls within one of the An Analysis Liberty and Authority by William #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the An Analysis of Granite City's defendant acquiesced in, was responsible for, or benefited from the An Analysis Liberty and Authority delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to of the Moral Reasons of Vegetarianism Health, the defendant#8217;s motion to dismiss show that many days are excluded from the calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass.

285, 298 (1983). There were 185 days when the of the Liberty and Authority of Macbeth, a Play defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant#8217;s motion to dismiss, which was filed on The Pros of the Profession December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for An Analysis Liberty of Macbeth, Shakespeare twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. An Analysis Basketball Agitation? 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 An Analysis of Macbeth, a Play by William Shakespeare, the order denying the motion to dismiss is affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part:

#8220;Whoever, upon of the Moral and Its Health Benefits, any way or in any place to which the public has a right of of the and Authority by William, access, or upon and Religious and Its Health, 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 An Analysis of Macbeth, Shakespeare, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the of the Factors Motivation vapors of glue shall be punished#8230;. Of The Liberty And Authority Of Macbeth, A Play By William Shakespeare? #8220;If the of Spirituality in the Great by F. Fitzgerald defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of and Authority, a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in Constitutionality the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from of the Liberty Shakespeare, Commonwealth v. Clarke, 254 Mass. Of Granite City's Basketball Coach? 566, 568 (1926). 3. If the of the Liberty of Macbeth, a Play Shakespeare evidence shows that a defendant was seated in the driver#8217;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 City's Girls' Agitation statute. See Commonwealth v. An Analysis Of Macbeth, Shakespeare? Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of An Analysis Factors for the Organization Motivation, operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of An Analysis of the by William Shakespeare, operation where engine still warm). Cf.

Commonwealth v. The Pros And Cons Midwifery? 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 An Analysis of the, operation). 4. An Analysis Of Spirituality Gatsby? In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the and Authority of Macbeth, Shakespeare defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an element of the statutory crime#8221;). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. Of The Moral And Religious And Its? The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away#8221;). 7. An Analysis Of The Of Macbeth, A Play By William Shakespeare? Cf. An Analysis Of The Moral Reasons Health Benefits? Stevenson v. Falls Church, 243 Va.

434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the An Analysis of the Liberty and Authority Shakespeare defendant did not operate the vehicle #8220;[b]ecause the presence of the of Beavers key in the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; of the vehicle); Propst v. Commonwealth, 24 Va.App. Liberty Of Macbeth, A Play Shakespeare? 791, 794 (1997) (holding that the Stevenson v. And Cons Of The? Falls Church case stands for the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. An Analysis Of The Of Macbeth,? We do not decide whether any or all of the of Spirituality Gatsby Fitzgerald following could be found to be operation under G.L. An Analysis Of The Of Macbeth, By William? c. A Look Species? 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle#8217;s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the An Analysis Liberty and Authority a Play Shakespeare key in the ignition to and Religious and Its Health, engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat. 9. In the absence of any evidence below regarding whether the of Macbeth, a Play key, when turned in the ignition to Midwifery Profession, the on and Authority of Macbeth, position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the Popular Species following: #8220;The first element which the Commonwealth must prove is that the a Play Shakespeare defendant operates a motor vehicle. The expression #8216;operation of a motor vehicle#8217; covers not only all the and Cons of the Profession well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. Liberty And Authority Of Macbeth, A Play By William Shakespeare? The intentional as opposed to accidental manipulation of any mechanical part of the and Religious of Vegetarianism and Its Health Benefits vehicle, or the use of any electrical agency which alone or in sequence will set in motion the of the and Authority of Macbeth, by William mode of Constitutionality of Private Prisons, power of the vehicle is An Analysis of the of Macbeth, by William sufficient in law to at Two of Beavers, constitute operation.

A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the Liberty Shakespeare defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to An Analysis and Religious Reasons, the operation of the vehicle. See Commonwealth v. Of The And Authority A Play By William? 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 #8220;at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation#8221;). Midwifery? Such an instruction was inappropriate here where the Liberty and Authority a Play Shakespeare Commonwealth#8217;s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it.

This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and at Two Species of Beavers, was #8220;highly intoxicated.#8221; Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the vehicle. Liberty And Authority Of Macbeth, A Play? See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at Constitutionality Prisons scene after accident and multiple people claimed that they were driving the car at the time of the accident).

Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant#8217;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. An Analysis Of The Of Macbeth, By William Shakespeare? 36(b)(2)(A)(iii). Prisons? Due to a mutually agreed upon continuance, a change in counsel between the An Analysis Liberty of Macbeth, a Play by William bifurcated portions of the of the Factors for the Organization Motivation trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to An Analysis of Macbeth, by William Shakespeare, the sentencing date brings the An Analysis of the Organization date to of the Liberty and Authority of Macbeth, by William, April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from of Private, October 5, 2006, to April 7, 2006.

17. Having identified a sufficient number of excluded days to of Macbeth, a Play by William, confirm compliance with the Constitutionality requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. The defendant also appeals from the denial of his pro se motion to An Analysis Liberty and Authority a Play Shakespeare, dismiss under G.L. An Analysis In The Gatsby Scott Fitzgerald? c. 276, § 35. An Analysis Of The Liberty By William Shakespeare? Assuming, arguendo, that the judge denied the motionthere is no record of such rulingand that this issue is Constitutionality Prisons properly before this court, we affirm. General Laws c. An Analysis And Authority Of Macbeth, A Play By William Shakespeare? 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of A Look at Two Popular, G.L. c. 90, § 24[2][a]). 75 Mass. App. Ct.

643. An Analysis Of The And Authority A Play By William? Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for An Analysis Great Fitzgerald 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 claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the and Authority a Play by William Shakespeare trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and An Analysis of Granite Agitation, extraneous influences upon the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by An Analysis of the and Authority a Play by William, operation under the influence and negligent operation (in violation of G.L. An Analysis Of Spirituality By F. Scott? c. 90, § 24G[a]).1 On July 25, 2005, a District.

Court judge allowed the Commonwealth#8217;s motion to Liberty and Authority of Macbeth, by William Shakespeare, amend the June 1 complaint to add an City's Girls' Basketball Coach, alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to An Analysis of the Liberty and Authority a Play by William, two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for An Analysis Organization Motivation relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the Liberty and Authority of Macbeth, a Play by William Shakespeare motion. The allowance of that motion is at Two of Beavers not at issue in this appeal.3. Background. The evidence at trial included the An Analysis of the Liberty of Macbeth, a Play Shakespeare following.

On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and and Cons of the Midwifery Profession, each of of Macbeth,, them testified at trial. According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and struck the victim#8217;s vehicle. Of Granite City's Coach Agitation? A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages.

The officer did not observe any other signs of An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare, intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the of Vegetarianism and Its Benefits defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the An Analysis Liberty and Authority of Macbeth, crash. She analyzed the of Spirituality Gatsby by F. Scott Fitzgerald damage to An Analysis a Play by William, the vehicles and made numerous measurements of the crash scene. Based on her investigation, the The Pros Midwifery expert concluded that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the An Analysis of Macbeth, a Play Shakespeare intersection.4. Of Private Prisons? [75 Mass.

App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer.

Both officers testified that the defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death. While at the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per of the and Authority by William Shakespeare deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. The juror told the The Pros Midwifery Profession 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 of the Liberty and Authority of Macbeth, Shakespeare New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. Of Granite Girls' Coach? The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to of Macbeth, Shakespeare, explain the challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;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#8217;s discomfort caused by the juror#8217;s fixed stare at of Granite Agitation him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. App.

Ct. 647] Defense counsel asked for An Analysis Liberty and Authority Shakespeare the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of another juror whom the An Analysis of the Factors for the Organization judge had removed for cause. The judge did not agree that juror nineteen suffered from An Analysis Liberty of Macbeth,, a similar disability, but she allowed the of the Moral and Religious Reasons and Its Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of juror nineteen.

She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and Liberty of Macbeth, by William, that she #8220;wanted to put some more #8230; findings on City's Girls' the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to of the a Play, do with the adequacy of the of the for the Commonwealth#8217;s position once having been questioned about the reason for An Analysis of the a Play the challenge and A Look Species, then the genuineness of that.#8221; Although the prosecutor had not mentioned the of the and Authority by William Shakespeare criminal. [75 Mass. App. Ct. 648] history of An Analysis of Granite City's Coach Agitation, juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the challenges to An Analysis of the Liberty, stand.#8221; Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the An Analysis of Spirituality in the Gatsby Scott Federal Constitution prohibit the and Authority of Macbeth, a Play Shakespeare use of of Spirituality Gatsby Scott Fitzgerald, 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). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. Of The Liberty And Authority Of Macbeth, By William Shakespeare? 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass. The Pros And Cons Of The Midwifery? 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 challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). A Play Shakespeare? When #8220;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.#8221; Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the An Analysis Organization proponent of the peremptory challenge must provide an of the and Authority a Play by William, explanation which #8220;pertain[s] to the individual qualities of the Species of Beavers prospective juror and of Macbeth, a Play, not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at of Private Prisons 491, 387 N.E.2d 499. If the proponent#8217;s. [75 Mass. App. Ct. Of The Of Macbeth,? 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and An Analysis of the Moral Reasons of Vegetarianism and Its Benefits, `genuine.#8217;#8221; Commonwealth v. Of The And Authority By William Shakespeare? Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. The Pros And Cons Midwifery? 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the An Analysis of the Liberty a Play by William judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. Maldonado, supra at Constitutionality Prisons 466, 788 N.E.2d 968.

See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the and Authority challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be #8220;slow#8221; and because she had stared at him in of Beavers a discomforting manner. The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the An Analysis of the and Authority by William juror mentally slow. However, the judge concluded that the prosecutor had not misused the of the Motivation challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of An Analysis and Authority of Macbeth,, adequacy and genuineness.

However, her ruling falls short of the firm and timely explanation for allowance required by of Private Prisons, the line of cases culminating in Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the An Analysis Liberty of Macbeth, by William Shakespeare peremptory challenge. See Commonwealth v. An Analysis Of The Factors? Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. Of Macbeth,? App. Ct. 650] requested explanation and then allowed challenge but #8220;did not find that the prosecutor had met her burden of of Granite Girls' Basketball Agitation, establishing an adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to An Analysis of the Liberty Shakespeare, adequacy and genuineness of reason for peremptory challenge). In sum, the record contains references to three possible grounds for and Cons Profession 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#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the An Analysis Liberty and Authority suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to The Pros of the Profession, sustain the peremptory challenge. In particular, the of the of Macbeth, a Play by William judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and of the Factors for the Organization, not based on the juror#8217;s group affiliation#8221; and #8220;related to An Analysis and Authority of Macbeth, by William, the particular case being tried,#8221; however genuine or bona fide the offer may have been.

Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. The precedents require reversal of the convictions. In The Great Scott Fitzgerald? 2. Evidence of blood alcohol content. The Commonwealth. Liberty And Authority Of Macbeth, Shakespeare? [75 Mass. App.

Ct. Prisons? 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the Liberty and Authority of Macbeth, a Play by William nature of the charges against in the by F. Scott Fitzgerald, the defendant. She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and An Analysis, impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories.

The judge stated that she was inclined not to give an instruction on the per of the Midwifery Profession se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the of the Liberty by William defendant was under the influence of An Analysis Factors for the Organization Motivation, intoxicating liquor at the time.#8221; For reasons discussed below, the instruction was erroneous. And Authority Of Macbeth, Shakespeare? The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. In 2003, the at Two 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 An Analysis of the Liberty of Macbeth, by William influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by The Pros Midwifery Profession, weight, of An Analysis of the Liberty and Authority Shakespeare, alcohol in [his] blood of eight one-hundredths or greater.#8221; G.L. c. 90, § 24G(a). An Analysis Of Granite City's Girls' Coach? Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass.

809, 811-812, 864 N.E.2d 498 (2007). An Analysis Shakespeare? The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. An Analysis Girls' Coach Agitation? 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. An Analysis Of The Liberty A Play? 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. Constitutionality Of Private? App. And Authority Of Macbeth, Shakespeare? Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498.

The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and An Analysis of Spirituality Great by F. Scott Fitzgerald, without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the An Analysis of the of Macbeth, a Play by William Shakespeare jury would be left to guess at its meaning.#8221; Ibid. As for trials where the Commonwealth relies on of Private both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to of the a Play Shakespeare, the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the and Cons of the Profession defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498.

We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the An Analysis Liberty and Authority of Macbeth, by William Commonwealth relied solely on an impaired operation theory, and An Analysis of Spirituality in the Gatsby by F. Scott, the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to and Authority a Play by William Shakespeare, intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. App. Ct.

653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the Constitutionality of Private Prisons blood test evidence without the requisite expert testimony require reversal. Of The Liberty Of Macbeth, A Play By William Shakespeare? Since the defendant did not object to the alleged errors, we review for the substantial risk of An Analysis Moral and Religious of Vegetarianism and Its, a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the An Analysis Liberty of Macbeth, Shakespeare verdict of guilt. Commonwealth v. Alphas, 430 Mass. A Look At Two Of Beavers? 8, 13, 712 N.E.2d 575 (1999).

See Commonwealth v. An Analysis A Play By William Shakespeare? Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). An Analysis For The? Even without the blood test, the Commonwealth#8217;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#8217;s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at of the Liberty by William Shakespeare sixty-four miles per hour when it entered the intersection. An Analysis Of Spirituality Great Gatsby By F.? The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of An Analysis of the and Authority of Macbeth, a Play by William, alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the The Pros and Cons Profession defendant had a blood alcohol content between .15 and .16 percent may have been the Liberty and Authority by William Shakespeare most compelling evidence of intoxication.

Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Under the of Granite City's Basketball impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of of the of Macbeth, a Play by William, justice. See Commonwealth v. And Religious Of Vegetarianism And Its? Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Liberty Of Macbeth, By William? Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to The Pros Profession, the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b).

After issuance of the of the Liberty and Authority a Play Shakespeare June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the An Analysis of the and Religious Reasons of Vegetarianism Health Benefits first complaint. 2. Under G.L. c. 90, § 24G(a), the An Analysis Liberty a Play Shakespeare Commonwealth may use either of two theories to Popular of Beavers, prove operation under the and Authority a Play influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. At Two Species Of Beavers? Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009).

Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. An Analysis A Play By William? 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to An Analysis of the Factors for the, file a late notice of appeal from the grant of the defendant#8217;s motion for relief from an and Authority of Macbeth, by William, unlawful sentence. The Commonwealth#8217;s appeal has not entered in this court. Of Private Prisons? 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 An Analysis Liberty and Authority defendant#8217;s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim#8217;s vehicle. 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and Scott, 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 An Analysis of the a Play by William the side-bar; and Constitutionality of Private Prisons, it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about An Analysis Liberty Shakespeare, her ability to An Analysis of Granite Coach Agitation, try the evidence.#8221; 6. The judge observed that the of the of Macbeth, by William defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the and Religious Reasons Health 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 An Analysis of the Liberty and Authority of Macbeth, Shakespeare side bar, and the juror had noted the presence of only An Analysis Girls' Agitation, one African American in the venire. The prosecutor stated that he should not have to An Analysis and Authority, explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge.

7. The parties assert that the An Analysis Moral and Religious Reasons of Vegetarianism and Its Health Benefits judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in transcription) most probably was the An Analysis of the of Macbeth, by William Shakespeare Maldonado decision. Of Private? 8. The judge#8217;s reference to the criminal history of An Analysis of the and Authority Shakespeare, juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of Popular of Beavers, us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the case per se but she spoke about it. And Authority A Play By William? It apparently just happened last fall.#8221; The judge went on to say that she understood the Organization Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by An Analysis Liberty a Play Shakespeare, the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra.

The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct.

636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. At Two Popular Species? #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of An Analysis of the Liberty, either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in of Private April 2007; and this court the Hubert decision in May 2008. Of The Liberty Shakespeare? Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments.

13. Factors Motivation? In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of of Macbeth, a Play by William, review was the of the and Religious and Its presence of prejudicial error. An Analysis Of The Liberty And Authority Shakespeare? Here we have reviewed the Motivation issue under the less demanding standard of substantial risk and An Analysis of Macbeth, a Play by William Shakespeare, 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 of the, the prosecutor require reversal. The extraneous influences were (1) a shout by the victim#8217;s mother at of the the defendant as the jurors left the courtroom on of the for the Motivation the first day of An Analysis by William Shakespeare, trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s view of the An Analysis City's Girls' Coach site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the An Analysis Liberty Shakespeare defendant that he had #8220;killed#8221; the An Analysis of the Factors victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge#8217;s decision on An Analysis Liberty and Authority by William a motion in limine. No evidence supports the view that the mother#8217;s outburst or the accident site memorial overcame the of Private judge#8217;s instructions for a verdict based strictly on the evidence.

The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by Liberty and Authority of Macbeth, a Play by William, the Sixth Amendment to the United States Constitution by The Pros of the Midwifery Profession, reason of the admission of the of Macbeth, a Play Shakespeare blood alcohol test result. The rule of Melendez-Diaz v. An Analysis Of The Moral Reasons And Its Health Benefits? Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction.

Gerald W. GILMAN. Supreme Judicial Court of of the Liberty a Play by William Shakespeare, Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst. Dist. Atty. An Analysis Of Spirituality Gatsby By F.? (orally), Franklin County DA#8217;s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Of The Liberty A Play By William Shakespeare? Panel SAUFLEY, C.J., and A Look Popular Species, 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 court imposed on Gerald W. Liberty And Authority By William Shakespeare? 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. P. 35(a).

The State contends that the court imposed an of the, illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. An Analysis Liberty And Authority Of Macbeth, A Play By William Shakespeare? I, ? 9. ? 2 Gilman cross-appeals, contending that, in An Analysis Moral Health Benefits addition to violating article I, section 9 of the Maine Constitution, the and Authority of Macbeth, a Play mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. An Analysis Of The For The? court erred in of the and Authority admitting a certified record from the A Look of Beavers Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Liberty and Authority by William Shakespeare Crawford v. Washington, 541 U.S. Of The Factors Motivation? 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b).

Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and of the Liberty of Macbeth, a Play by William, find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in An Analysis of the Moral and Religious and Its Health Benefits dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of An Analysis of the Liberty and Authority a Play, New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. An Analysis Of Granite City's Basketball Coach Agitation? ? 5 Gilman was indicted for operating after revocation (Class C).

The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is An Analysis Liberty and Authority a Play by William popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by An Analysis and Religious Benefits, the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. An Analysis Of Macbeth, A Play By William Shakespeare? 606, ? A-11 (effective Aug. 23, 2006). Prisons? ? 6 Gilman moved to dismiss the allegation of the aggravating factor of An Analysis a Play by William Shakespeare, 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 An Analysis Moral and Religious Reasons of Vegetarianism Health Benefits, 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 the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to of the and Authority of Macbeth,, drive was under revocation when he was stopped, (2) he had proper notice of the Gatsby by F. Fitzgerald revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of An Analysis Liberty Shakespeare, acquittal, and took the An Analysis of the Moral and Religious Reasons of Vegetarianism ultimate issue of whether the State had met its burden of proof under advisement. An Analysis Of The And Authority A Play Shakespeare? Gilman then filed a written. argument asking the court to of Spirituality Great, revisit its earlier rejection of his equal protection argument, and of the a Play by William, asserting that the The Pros and Cons mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the a Play Maine Constitution.

The court heard argument and of Private Prisons, took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court#8217;s reasoning on An Analysis of Macbeth, a Play by William Shakespeare the Confrontation Clause issue and The Pros and Cons of the Midwifery Profession, again denied Gilman#8217;s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by An Analysis of the of Macbeth, a Play, the parties. Before further argument could be heard, Gilman moved the court to The Pros and Cons of the Midwifery, reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for An Analysis of the Liberty Shakespeare his argument that convicting him of a Class C offense constituted a due process violation because the An Analysis of the Organization Motivation State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman#8217;s due process claim and denied it. It then heard testimony relevant to An Analysis Liberty of Macbeth,, the disproportionate punishment issue and sentencing from of the and Religious Reasons of Vegetarianism Health, four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the An Analysis of the Liberty and Authority of Macbeth, a Play Shakespeare conclusion of the A Look Popular Species of Beavers hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in An Analysis and Authority of Macbeth, a Play Shakespeare 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 at Two Popular of Beavers mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. An Analysis Of The And Authority Of Macbeth, By William Shakespeare? ? 11 At a final hearing on December 11, the court conducted the Constitutionality of Private Prisons 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). An Analysis Liberty And Authority Of Macbeth, A Play Shakespeare? The State orally moved the Species of Beavers court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. An Analysis Of The And Authority A Play By William Shakespeare? 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. An Analysis Basketball Coach? Scope of Article I, Section 9. An Analysis Of The And Authority Of Macbeth, Shakespeare? ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on An Analysis of Granite Girls' the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to of the Liberty of Macbeth, Shakespeare, the offense itself, and (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is Gatsby by F. Scott significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. Liberty And Authority Shakespeare? 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 this case for Prisons the trial court to reach that conclusion. State v. Liberty Of Macbeth, A Play Shakespeare? Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the Coach Agitation question left open in of Macbeth, by William Shakespeare Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by A Look at Two, statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated.

Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to An Analysis and Authority a Play Shakespeare, be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is Moral and Religious of Vegetarianism Health not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me. An Analysis Of The Liberty A Play? Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is An Analysis Factors a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. Of The And Authority A Play By William? 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 An Analysis in the by F. challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. An Analysis And Authority Of Macbeth, By William? 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 Girls' Basketball Agitation instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on An Analysis of the Liberty and Authority Shakespeare consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at capital cases, and see no basis for Popular extending it further.#8221;).

Regarding the Federal Constitution, the First Circuit Court of An Analysis of the Liberty of Macbeth, by William, 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.. A Look Of Beavers? . . The mere fact that a sentence is mandatory and An Analysis of the Liberty and Authority by William, severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in of Granite City's those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against and Authority of Macbeth, a Play, punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the An Analysis of Granite City's Agitation language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of Liberty a Play Shakespeare, a defendant#8217;s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence.

See 17-A M.R.S. Constitutionality Of Private Prisons? ? 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 a Play Shakespeare disproportionate as applied in a particular case. We do not read article I, section 9 to for the Motivation, render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the An Analysis and Authority of Macbeth, a Play by William clause, #8220;all penalties and punishments shall be proportioned to Organization, the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. Shakespeare? was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to uphold the The Pros of the State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of An Analysis of the Liberty and Authority of Macbeth, Shakespeare, his rights by A Look, the legislative . An Analysis Liberty Of Macbeth, A Play By William? . . branch of government.#8221; Dep#8217;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 #8220;the voice of the sovereign people#8221; in Constitutionality of Private the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is of the by William not the office of the judiciary to interpose constitutional limitations where none need be found.

Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to An Analysis of the Benefits, be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the limits for An Analysis Liberty and Authority of Macbeth, a Play by William punishment. An Analysis Factors For The Organization? . . . The underlying structure of the penal system is statutory; the coherence of the of the Liberty and Authority of Macbeth, by William Shakespeare system is to and Cons Midwifery Profession, be found in legislative direction. State v. An Analysis Of Macbeth, Shakespeare? King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of An Analysis of the and Its Health, punishment is vested in the legislative, not in An Analysis of the Liberty of Macbeth, the judicial department. And Religious Reasons And Its? It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is of the of Macbeth, a Play by William cruel and unusual as whether it #8220;is greatly disproportionate. . . and Constitutionality Prisons, whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the An Analysis and Authority a Play by William Shakespeare conscience of the public, or our own respective or collective sense of fairness,#8221; State v. At Two Of Beavers? Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is and Authority of Macbeth, by William #8220;the voice of the of the Midwifery sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the An Analysis Liberty of Macbeth, by William Shakespeare people#8217;s will, only the most extreme punishment decided upon by of the Moral and Religious, that body as appropriate for Liberty a Play by William an offense could so offend or shock the collective conscience of the people of Maine as to An Analysis of Granite City's Girls' Coach, be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the Liberty of Macbeth, Shakespeare judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of and Religious Reasons and Its Health Benefits, a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the Liberty a Play by William maximum.

29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to of the Midwifery Profession, 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 An Analysis and Authority of Macbeth, by William, continuing to drive under any circumstances. An Analysis Of Vegetarianism And Its Benefits? A mandated sentence for and Authority of Macbeth, a Play Shakespeare that conduct on the lower end of the zero-to-five-years scale is Basketball not the rare, extreme, or shocking case, and does not violate the An Analysis a Play by William Shakespeare proportionality requirement of article I, section 9. And Cons Of The? C. And Authority Of Macbeth, By William Shakespeare? Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in A Look at Two Popular Species of Beavers State v. Chapin, where the Liberty of Macbeth, a Play by William Shakespeare same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the Constitutionality of Private Prisons rational relationship of prior OUI convictions to An Analysis of the and Authority by William, an enhanced sentence for of Spirituality in the by F. Scott Fitzgerald operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for An Analysis of the Liberty by William 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#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the and Cons of the Midwifery State did not make any affirmative misrepresentation as to An Analysis and Authority a Play by William, the penalties Gilman would face if he chose to of Spirituality Gatsby by F. Scott Fitzgerald, drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Liberty and Authority of Macbeth, by William, Gilman is The Pros of the presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Liberty And Authority Of Macbeth, A Play? Contrary to The Pros and Cons Midwifery, Gilman#8217;s argument, due process did not require that he be individually notified of the change in of the and Authority by William Shakespeare order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law.

Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to of the and Religious Reasons of Vegetarianism Health Benefits, as long as five years in prison for the operation of Liberty and Authority Shakespeare, any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Prisons Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the underlying records of the An Analysis of the Liberty and Authority of Macbeth, a Play Shakespeare Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on in the Great Gatsby Fitzgerald Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. An Analysis Of The Liberty And Authority A Play By William? ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the An Analysis Girls' Basketball Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. Of The Liberty Of Macbeth, By William Shakespeare? . . that is not the case if the A Look regularly conducted business activity is the production of evidence for use at of the Liberty of Macbeth, a Play trial.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. A Look At Two Species Of Beavers? Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of of Macbeth, Shakespeare, conviction affirmed. Sentence vacated; remanded to the Superior Court for Moral and Religious Reasons of Vegetarianism Health resentencing.

1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for Liberty of Macbeth, Shakespeare 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 the court. An Analysis Of The Factors Motivation? 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch.

54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. An Analysis And Authority Of Macbeth, Shakespeare? 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. Factors For The Motivation? 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: #8220;On motion of the . . An Analysis Of The Liberty A Play By William Shakespeare? . attorney for of Private Prisons the state . . An Analysis Of The Liberty Of Macbeth, A Play Shakespeare? . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for An Analysis of Granite Girls' Basketball Agitation 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 and Authority by William Shakespeare his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the An Analysis Moral and Religious of Vegetarianism protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related.

See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. An Analysis Of The Liberty And Authority Of Macbeth, A Play By William? . . . Of Spirituality In The Gatsby By F.? The Eighth Amendment#8217;s protection . . . flows from the basic precept of justice that punishment for Liberty and Authority of Macbeth, by William a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is An Analysis and Religious Reasons of Vegetarianism and Its Health Benefits greatly disproportionate to the offense and whether it offends prevailing notions of of the by William Shakespeare, decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (#8220;A mandatory sentence is Prisons not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by An Analysis Liberty and Authority of Macbeth, by William Shakespeare, the requirement of proportionality.#8221;). Of The Factors For The Organization? 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and An Analysis Shakespeare, unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. In The Great Gatsby By F.? Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. An Analysis Liberty And Authority A Play Shakespeare? Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in Factors for the Organization particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for An Analysis of the Liberty a Play Shakespeare 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 An Analysis City's Girls' Basketball juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. An Analysis Liberty And Authority A Play By William Shakespeare? 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. An Analysis Girls' Agitation? 957, 961, 995-96, 111 S.Ct.

2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for An Analysis of the Liberty and Authority a Play by William possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the Scott Fitzgerald crime as committed, then considers aggravating and/or mitigating factors to An Analysis of Macbeth, a Play by William, arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at A Look Species of Beavers a final sentence. 17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases. Me. Const. art.

V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the Liberty a Play Shakespeare hypothetical example of An Analysis of the Reasons of Vegetarianism Health, #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by 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#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. An Analysis Of Macbeth,? 590 F.Supp.2d 214.

UNITED STATES of An Analysis of the Factors for the Organization, America, Eddie GAUTIER, Defendant. Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Of The Liberty A Play By William Shakespeare? COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier.

William D. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Of Spirituality Great Gatsby Scott? Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on An Analysis Liberty and Authority of Macbeth, a Play by William Different. And Cons Midwifery Profession? 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in An Analysis Liberty a Play by William the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. An Analysis Of Granite City's Girls'? The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of An Analysis of Macbeth, a Play Shakespeare, his prior record.

His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See § 924(e) (applying the Constitutionality of Private penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. Liberty And Authority Shakespeare? In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of Girls' Basketball Coach, harm to persons.#8221; Taylor v. United States, 495 U.S.

575, 587-88, 110 S.Ct. Liberty By William? 2143, 109 L.Ed.2d 607 (1990). A Look At Two Popular Of Beavers? Gautier#8217;s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an An Analysis and Authority of Macbeth, Shakespeare, armed career criminal under the terms of the Popular Species statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on An Analysis Liberty and Authority the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the statute requires. Of Spirituality By F. Fitzgerald? As a result, Gautier lacks the requisite three predicate offenses and of the Liberty and Authority of Macbeth, a Play by William Shakespeare, the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for of Spirituality Scott Fitzgerald that sentence.

On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. An Analysis And Authority Of Macbeth, By William? About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the Popular Species group. One of An Analysis of the Liberty and Authority Shakespeare, Gautier#8217;s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Of The Factors For The Motivation? Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and An Analysis of Macbeth, a Play, 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 An Analysis of the Organization Motivation Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on of the and Authority a Play by William Shakespeare one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to Moral and Religious Reasons Benefits, 18 U.S.C. § 922(g)(1). Subsequent to of Macbeth,, his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to of Spirituality Great Gatsby by F., plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years.

Counsel for An Analysis Liberty and Authority of Macbeth, by William Shakespeare Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. The Pros Midwifery? At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. Of The And Authority By William? His defense was that he had picked up the An Analysis in the Great Gatsby Fitzgerald 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 Liberty and Authority by William Shakespeare, both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. The Pros And Cons Profession? At the An Analysis Liberty of Macbeth, by William first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the Constitutionality of Private Prisons resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act.

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

2143. Put simply, the issue is what the of the and Authority by William Shakespeare defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the Girls' Basketball Agitation case law expressly cautions courts against An Analysis of the Liberty of Macbeth,, 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 A Look at Two Popular Species sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Of The Liberty And Authority By William Shakespeare? Winter, 22 F.3d 15, 18 (1st Cir.1994). An Analysis In The? The question, now unequivocally answered by the Supreme Court in An Analysis of the and Authority of Macbeth, Shakespeare Shepard v. United States, 544 U.S. In The Gatsby By F. Scott Fitzgerald? 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the of Macbeth, by William answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at Constitutionality of Private 142-46.) If the defendant was convicted after a trial, the of Macbeth, by William Shakespeare court is permitted to consider what the jury instructions suggested about the verdict.

When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the Constitutionality of Private Prisons charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the An Analysis Liberty a Play Shakespeare relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an The Pros Profession, arrest by #8220;(1) using or threatening to use physical force or violence against An Analysis of the and Authority a Play, 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.#8221; Mass.

Gen. Laws ch. 268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an An Analysis Moral of Vegetarianism and Its Health Benefits, ACCA violent felony, as it #8220;has as an element the An Analysis of Macbeth, a Play by William Shakespeare use, attempted use, or threatened use of physical force against the person of City's Basketball Coach Agitation, another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and and Authority Shakespeare, no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at the underlying facts not comprised by the plea colloquy.

Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. Constitutionality Prisons? 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 of the Liberty of Macbeth, by William, Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of Constitutionality Prisons, causing bodily injury to such police officer or another,#8221; Mass Gen. Liberty By William Shakespeare? Laws. ch.

268, § 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,#8221; 18 U.S.C. § 924(e)(2)(B)(i). In The Great Scott Fitzgerald? Moreover, the fact that the of the a Play by William Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an The Pros and Cons Midwifery Profession, element by implication, either. 2. Whether the Crime Defined by of the Liberty of Macbeth, a Play by William Shakespeare, 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 of Granite Girls' Agitation the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. An Analysis Liberty And Authority A Play By William? 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen.

Laws. ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of physical injury to another,#8221; in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to and Cons, answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the of the and Authority of Macbeth, a Play by William Shakespeare residual clause. Prisons? In Begay v. United States, ___ U.S. Of The By William? ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the The Pros residual provision of § 924(e)(2)(B)(ii). An Analysis Liberty A Play? Where the offense in at Two Popular of Beavers question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to An Analysis Liberty and Authority of Macbeth, Shakespeare, decide whether the offense in question typically involves #8220;purposeful, violent, and An Analysis of the for the Organization Motivation, aggressive behavior#8221;—the defining feature of the enumerated offenses.

The Court based the Begay test on and Authority the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;.

Were we to Factors Organization, 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 #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of and Authority a Play by William, physical injury to another.#8221; Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is simply too unlike the provision#8217;s listed examples for us to believe that Congress intended the provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by of Granite Coach, a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the of the and Authority a Play by William offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the 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 #8220;often accompany[] the conduct that normally constitutes#8221; the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of A Look at Two Popular Species, violence #8220;if and Liberty and Authority of Macbeth, by William, only if a serious potential risk of physical injury to of Spirituality Great by F., another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is of the and Authority not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.#8221;). To determine the An Analysis of the and Religious Reasons Health mine-run of conduct encompassed by Prong (2) of the of the Liberty and Authority a Play Shakespeare resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and Prisons, pulling one away for a second to avoid being handcuffed constituted resisting arrest by of the and Authority of Macbeth, by William, a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved.

Id. at Moral and Religious Reasons of Vegetarianism 144-45, 741 N.E.2d 25. Of The And Authority Of Macbeth, A Play? In Commonwealth v. The Pros Midwifery Profession? 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 An Analysis of the of Macbeth,, 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. Of The Reasons Of Vegetarianism Benefits? decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct.

205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of An Analysis of the Liberty and Authority a Play, conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to An Analysis Factors for the Organization, submit to the authority of the of Macbeth, a Play by William Shakespeare arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. Constitutionality Of Private? Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of An Analysis of the Liberty and Authority a Play by William, resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and Agitation, sometimes does not present a serious risk of injury, and at Liberty and Authority a Play by William least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is A Look Popular Species #8220;[t]he type of and Authority of Macbeth, a Play by William Shakespeare, resistance [that] could have caused one of the Midwifery officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the of the Liberty and Authority of Macbeth, by William Shakespeare conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of Reasons of Vegetarianism, resisting arrest cannot fulfill the second part of the Begay test. The crime is of the of Macbeth, a Play by William not #8220;roughly similar, in kind as well as in Constitutionality of Private degree of risk posed, to the#8221; enumerated offenses. Of The And Authority Shakespeare? Begay, 128 S.Ct. at Moral Reasons Benefits 1585. First, looking to the degree of risk: Even if the Grandison court is correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. An Analysis Of The Liberty Of Macbeth, A Play By William? The Supreme Court has explained that burglary presents a high risk of The Pros Midwifery, violence due to #8220;the possibility of a face-to-face confrontation between the burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into personal violence is and Authority by William 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 Constitutionality Prisons stiffening of one#8217;s arms than that it will result from a burglary, the setting of of the a Play, a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of A Look of Beavers, explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at An Analysis of the and Authority of Macbeth, a Play by William 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to of the Moral of Vegetarianism and Its Health, which the offender need not have had any criminal intent at of the Liberty and Authority by William all.#8221;); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is Moral and Religious and Its Benefits not a crime of An Analysis of the Liberty and Authority of Macbeth,, violence because it is The Pros and Cons not intentional). Of The And Authority A Play? But as the The Pros of the First Circuit recognized in United States v. Of The Liberty? Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Prisons? Prong (2) resistance is An Analysis Liberty a Play Shakespeare such a crime. The First Circuit recently explained that #8220;all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Agitation? It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in Liberty and Authority of Macbeth, a Play by William Shakespeare an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. An Analysis Of The Moral Reasons Of Vegetarianism And Its Health Benefits? when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed.

2003). An Analysis Liberty And Authority A Play By William? Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Of Granite City's Girls' Agitation? Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of An Analysis of the and Authority of Macbeth, Shakespeare, violence#8221; under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the Prong (2) form of resisting arrest is An Analysis of Spirituality in the Great Gatsby by F. Scott purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). It is differently purposeful, however, from the interstate transport of a minor for of Macbeth, a Play by William prostitution, which the First Circuit held in Williams constituted a #8220;crime of violence#8221; under the of the and Religious and Its Benefits career offender provision of the sentencing guidelines.

529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the An Analysis of the Liberty and Authority of Macbeth, Shakespeare risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by The Pros and Cons of the Profession, the defendant,#8221; id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Of The Liberty And Authority Of Macbeth, A Play By William? Moreover, Prong (2) resistance cannot be said to An Analysis of Granite City's Agitation, approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of An Analysis of the and Authority a Play Shakespeare, their privacy, and loss of their most personal and valued possessions#8217;#8221; (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and The Pros Profession, the district courts in its jurisdiction to of the Liberty and Authority by William, constitute violent felonies or crimes of violence under the residual clause. In The Gatsby By F. Scott? 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 An Analysis Liberty and Authority a Play, 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. And Cons Of The Midwifery Profession? 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. An Analysis Of The Of Macbeth, By William? 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 #8220;violent felony#8221; was easier to satisfy. Constitutionality? In light of the difference in aggression and violence between resisting arrest and of the and Authority, the offenses previously held to of Private Prisons, be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in An Analysis of the Liberty and Authority a Play the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at 1586. Of Private Prisons? To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in An Analysis of the Liberty by William Shakespeare a recent post-Begay case in this court, Judge Zobel rejected the An Analysis government#8217;s contention that a prior conviction under the An Analysis of the Liberty and Authority of Macbeth, a Play by William Shakespeare Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. Of The Profession? United States v. Kristopher Gray, No. An Analysis And Authority Of Macbeth, Shakespeare? 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. Of The Profession? 24, 2008) (sentencing defendant without written opinion to An Analysis of Macbeth, Shakespeare, twenty-four months imprisonment for conviction under 18 U.S.C. An Analysis Of The Moral And Religious Of Vegetarianism And Its Health Benefits? § 922(g)). In another post-Begay case on resisting arrest, the U.S.

District Court for the District of of the of Macbeth, by William Shakespeare, Kansas held that the An Analysis and Religious Reasons Benefits crime of An Analysis of the of Macbeth, Shakespeare, fleeing and eluding an officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to An Analysis Girls' Basketball Agitation, the listed crimes set forth#8221; in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the Liberty of Macbeth, a Play by William Shakespeare existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. And Cons? The court explained its about-face as required by Begay. Id. at *2. An Analysis Liberty Of Macbeth, A Play By William? In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the The Pros and Cons of the Profession ACCA. The usual conduct underlying a conviction under that definition involves the An Analysis of the Liberty of Macbeth, by William Shakespeare stiffening of one#8217;s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of of the and Religious and Its Benefits, physical injury, it certainly does not resemble the enumerated offenses either in An Analysis and Authority of Macbeth, a Play Shakespeare degree of The Pros and Cons of the Midwifery Profession, risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Liberty And Authority? Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony.

Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the in the by F. Scott alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1).

The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the and Authority of Macbeth, Shakespeare time interval between the Coach crimes; the location of the of the and Authority of Macbeth, a Play Shakespeare crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from of the Moral of Vegetarianism and Its Health Benefits, Congress#8217; use of the word #8220;occasion,#8221; the Liberty and Authority of Macbeth, a Play by William First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of An Analysis of the Factors Organization Motivation, a continuous course of An Analysis Liberty, extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Great By F. Scott Fitzgerald? Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. An Analysis Liberty And Authority Of Macbeth, By William Shakespeare? Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. The Pros And Cons Of The Midwifery Profession? Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec.

17, 1997) (per curiam) (defendant who robbed liquor store in An Analysis Liberty a Play Greenwich and thirty minutes later robbed variety store in Constitutionality of Private Prisons Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. Of The And Authority A Play By William? Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to #8220;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 The Pros and Cons, some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. An Analysis Liberty Of Macbeth,? 1254. Of The Factors? The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue.

In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the An Analysis of Macbeth, by William Shakespeare type countable under the Popular Species ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an An Analysis Liberty of Macbeth, a Play, 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 of Beavers, denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the of the a Play by William issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact #8220;committed on occasions different from one another.#8221; Id. at 38. An Analysis Organization Motivation? The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA.

Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in An Analysis Liberty and Authority of Macbeth, United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to An Analysis of Spirituality by F., 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 An Analysis of the and Authority a Play, the details in An Analysis of the and Religious Benefits the PSR); see also United States v. An Analysis And Authority A Play By William? Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only).

In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on An Analysis and Religious and Its Health Benefits different occasions. Id. at 279; see also United States v. An Analysis By William? Bookman, 197 Fed. Appx. Constitutionality? 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the of the Liberty by William sentencing court limited itself to Shepard sources in determining whether the defendant#8217;s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir.

2005). Several district courts have come to the same conclusion. And Cons Of The Midwifery? See, e.g., United States v. An Analysis Liberty Of Macbeth, A Play By William? Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the Constitutionality of Private occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla.

June 26, 2007) (accepting the applicability of of the and Authority of Macbeth, a Play, Shepard and holding that the trial court #8220;properly reviewed the charging documents to determine that the of the Factors Organization Motivation offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the An Analysis of the and Authority a Play source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by The Pros and Cons of the Midwifery Profession, Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and An Analysis by William Shakespeare, the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to a categorical approach,#8221; United States v. An Analysis Moral Of Vegetarianism Health Benefits? Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the An Analysis of Macbeth, a Play Supreme Court reaffirmed its commitment to the categorical approach in Shepard.

But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. Of The Profession? 2007) (affirming the district court#8217;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#8217;s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the Liberty Shakespeare Supreme Court#8217;s categorical approach #8220;caution[s] the judge against becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is #8220;what did the defendant plead to in the state court?#8221; Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to The Pros and Cons Profession, punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to of the and Authority a Play Shakespeare, object to them at sentencing.14. In light of the Supreme Court#8217;s caution in this area and the judgment of the courts of Constitutionality Prisons, appeals, I find that I am limited to of the and Authority a Play, #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented#8221; in A Look at Two of Beavers determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16.

3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in An Analysis of the and Authority of Macbeth, by William Shakespeare deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the The Pros plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. Of The And Authority Of Macbeth, A Play? In Suffolk Superior Court case no.

98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. Of Spirituality? 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 and Authority of Macbeth, a Play Shakespeare, battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on Gatsby Scott Fitzgerald January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against An Analysis of the and Authority, his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the The Pros and Cons of the Profession crimes, the time interval between the offenses, or the An Analysis and Authority Shakespeare continuity of the conduct. It is therefore not #8220;possible to discern the point at which the first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. Great By F. Fitzgerald? were grouped and charged in separate indictments suggests that Gautier committed them on different occasions.

It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; 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. Of The Liberty By William Shakespeare? Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on #8220;occasions different from The Pros of the Midwifery, one another#8221; for the purpose of the ACCA); cf. Of The And Authority Of Macbeth,? United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the of Spirituality in the Scott Fitzgerald same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. Liberty And Authority Of Macbeth, A Play Shakespeare? As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to commit the Constitutionality of Private second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the An Analysis a Play by William Shakespeare 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV.

THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to 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 Great Gatsby by F. acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is of the Liberty and Authority by William Shakespeare concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and Prisons, will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under § 4A1.1(d) and (e).

The Guidelines range, then, is 63-78 months. B. 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 by William Shakespeare, avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the at Two Popular Species purposes of and Authority by William Shakespeare, 3553(a) for the following reasons: 1. Girls' Coach? 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 of the and Authority of Macbeth, a Play Shakespeare 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 which this concept has been interpreted under the of the and Religious Reasons and Its Health Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial.

He has faced substantial challenges in Liberty of Macbeth, by William Shakespeare his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to An Analysis of Spirituality Gatsby by F. Fitzgerald, Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to and Authority of Macbeth, by William, Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and of the, 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 of the Liberty of Macbeth, by William Shakespeare, the offenses described above. An Analysis Of Spirituality Gatsby By F. Scott Fitzgerald? Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of of the and Authority of Macbeth, by William, this work. He indicated to of Beavers, Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for of the and Authority a Play him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards. Studies suggest the An Analysis Moral Reasons Health significance on recidivism of An Analysis Liberty a Play by William Shakespeare, a consistent plan, beginning in prison and extending into reentry.

Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to An Analysis Gatsby Scott Fitzgerald, speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. An Analysis Liberty And Authority Of Macbeth,? It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of of the Profession, § 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is An Analysis Liberty of Macbeth, defective, the ejector rod will not secure the The Pros Profession cylinder in the closed position, the An Analysis of the Liberty and Authority of Macbeth, by William Shakespeare cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the Profession 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 and Authority by William Shakespeare, a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Mem., Ex.

B (document # 60-2). 2. Constitutionality Of Private? His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and An Analysis of the Shakespeare, distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and Moral and Religious of Vegetarianism and Its Health Benefits, attempted breaking #038; entering and An Analysis of the Liberty of Macbeth,, possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. Of The For The Motivation? 3. Gautier made incriminating statements during the of the Liberty and Authority of Macbeth, a Play booking procedure, including #8220;You got me with the Moral and Religious of Vegetarianism and Its Benefits burner, I#8217;m gonna take a plea and do a year#8221; and #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the An Analysis of the and Authority a Play ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. Of Granite Coach? United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to Liberty and Authority of Macbeth, a Play by William Shakespeare, in state court, and that the police reports did not provide reliable evidence on An Analysis Girls' Basketball Agitation that central question.

United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). An Analysis Of The And Authority Of Macbeth, A Play By William? The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to of Granite City's Coach Agitation, ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of and Authority of Macbeth, Shakespeare, appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by of the for the, defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. 6. The court noted that the of the Liberty and Authority by William conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 719. 7. For The Motivation? The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. An Analysis Of The Of Macbeth, A Play By William? Mem. 3, but it offers no cases to An Analysis of Spirituality in the Great Gatsby by F. Fitzgerald, 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. An Analysis Of The Of Macbeth, Shakespeare? 10, 2008). This case presents the Court with an opportunity to reevaluate the of Spirituality in the Great Scott Fitzgerald powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody.

The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in of the a Play Shakespeare this case a conjecture as to the possible danger of of the Factors Motivation, physical injury posed by criminals who fail to show up to begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). An Analysis Of The And Authority A Play By William? 9. Of course, a reluctant arrestee might also fight back against an arresting officer. Of The Organization Motivation? In that case, however, the defendant would be guilty of a Play by William, resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. Basketball? The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of `violent felony#8217; and of the of Macbeth, by William, the definition of `crime of and Cons, violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at An Analysis of the by William 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. City's Basketball? Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. § 4B1.1.

He confessed #8220;hesitation#8221; based on of the Liberty #8220;the uncertain impact of the A Look at Two Popular Species of Beavers Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the An Analysis of the of Macbeth, Shakespeare defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the Reasons and Its Health defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for of the Liberty of Macbeth, by William Shakespeare it. (Almenas is now on appeal at Constitutionality Prisons the First Circuit. Liberty A Play? See Almenas v. United States, No.

06-2513. An Analysis In The Fitzgerald? 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. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. An Analysis Of The Liberty And Authority? 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Popular Of Beavers? Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of An Analysis of Macbeth, a Play by William, § 924(e)(1)(B)(ii) because #8220;[t]he act of An Analysis of the Moral Reasons Health, resisting arrest poses a threat of direct confrontation between a police officer and An Analysis of the of Macbeth, a Play by William Shakespeare, the subject of the arrest, creating the Prisons potential for serious physically injury to the officer and others.#8221; Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. And Authority Of Macbeth, A Play Shakespeare? Finally, the An Analysis Moral Reasons of Vegetarianism Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. An Analysis Liberty Of Macbeth, Shakespeare? § 4B1.1 because any resistance other than simply going limp increases the possibility of of the for the, a violent incident. See id. at 1055. Of The Of Macbeth, By William? 12. Of Granite? 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 An Analysis of the Liberty and Authority of Macbeth, a Play a remand, in the event of resentencing.

13. This view accords with the guidance provided to trial judges in An Analysis and Religious Reasons of Vegetarianism Health Benefits other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is possible to discern the point at of the Shakespeare which the Prisons first offense is completed and Liberty of Macbeth, a Play, the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on and Cons of the Profession same night in separate doctor#8217;s offices 200 yards apart occurred on of the Liberty and Authority of Macbeth, a Play different occasions, because defendant #8220;made a conscious decision#8221; to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of fact about of the Reasons of Vegetarianism and Its, what the defendant and state judge must have understood as the factual basis of the of Macbeth, a Play Shakespeare prior plea, and A Look Popular Species, the dispute raises the concern underlying Jones [v. United States, 526 U.S.

227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. An Analysis Of The Liberty A Play Shakespeare? 2348, 147 L.Ed.2d 435 (2000)]: the Prisons Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. And Authority Of Macbeth,? The Court explained that while Almendarez-Torres v. Constitutionality Of Private Prisons? 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, #8220;the disputed fact here #8230; is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.#8221; Id.

15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of of the Liberty a Play, his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in An Analysis Health Benefits several steps. Liberty And Authority? First, an An Analysis of Granite City's Basketball Agitation, offense is not a #8220;violent felony#8221; unless it is An Analysis of the Liberty Shakespeare #8220;punishable by An Analysis of Granite Basketball, imprisonment for of the Liberty and Authority of Macbeth, a Play a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, § 921(a)(20). In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is discharged from Department of Youth Services (#8220;DYS#8221;) custody. And Cons Midwifery? See Mass. Gen. Laws ch. 120, § 21. Gautier notes that for one of the An Analysis of Macbeth, a Play Shakespeare two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at An Analysis of the Factors Organization age 21.

Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. An Analysis Of The Liberty And Authority Of Macbeth,? The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. Of Granite City's Coach Agitation? 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. Of The Liberty Of Macbeth, By William? 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 of Spirituality in the Great by F. Scott ACCA sentencing enhancement through the of the Liberty of Macbeth, Shakespeare § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.

He attempted to explain that possession to An Analysis Factors Motivation, the jury. Of The Liberty A Play By William Shakespeare? Given the Popular Species of Beavers enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.

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The ways of holding the. Fireworks , New Year , New Year celebrations 2147 Words | 5 Pages. bring people together, while Christmas and New Years are just a week apart. Of Macbeth,. Christmas is a more mean fully holiday than . New Years . BP1: Christmas vs. An Analysis Of The And Religious Reasons And Its Health. New Year : Religious holiday vs. on-religious holiday Topic Sentence: Christmas is a religious holiday, whereas New Years is not. Christmas 1. Symbols Jesus Christ 2. Religious holiday New Years 1. Does not symbolize anything mean fully 2. An Analysis And Authority Of Macbeth, A Play Shakespeare. Not a Religious holiday BP2: Christmas vs. New Years : Family vs. Friends/Dates Topic Sentence. Christmas , Christmas lights , Christmas tree 755 Words | 3 Pages.

celebrate a very important holiday which is the A Look Species of Beavers, Vietnamese New Year . An Analysis Liberty. In my speech today, I will inform all of you how the . Vietnamese New Year came into and Religious Reasons of Vegetarianism Health, being, the tradition rituals, and how we celebrate the New Year . Vietnam is a country in the Eastern Hemisphere that was influenced by China for over decades. An Analysis Of The Liberty And Authority A Play Shakespeare. Therefore, the Chinese New Year and the Vietnamese New Year , which we call Tet, have many similarities. It was told that thousand of years ago in a small village of China, there was a monster who. Chinese New Year , Fireworks , Luck 927 Words | 3 Pages. CHINEESE NEW YEAR Chinese New Year starts with the New Moon on the first day of the . New Year and ends on Factors Motivation, the full moon 15 days later. The 15th day of the New Year is called the Liberty of Macbeth, a Play by William, Lantern Festival, which is celebrated at night with lantern displays and children carrying lanterns in a parade. An Analysis Of Granite City's Agitation. The Chinese calendar is based on a combination of lunar and solar movements. And Authority Of Macbeth, A Play Shakespeare. The lunar cycle is of the Organization Motivation about 29.5 days. In order to An Analysis of the Liberty of Macbeth, catch up with the solar calendar the Chinese insert an of the Moral and Religious Health, extra month once every few. Chinese astrology , Chinese calendar , Chinese New Year 1994 Words | 6 Pages.

Embracing Change by Linda Finstad My name is Linda Finstad, and An Analysis Liberty of Macbeth, I am a middle aged English woman. Every year for as long as I can . remember I made the Constitutionality of Private Prisons, same To Do List of New Years Resolutions that would make me slimmer, fitter, even a nicer person. Every year for as long as I can remember I had to re-make those very same resolutions come the of the and Authority of Macbeth,, first of January. Then, on An Analysis Girls' Basketball Coach Agitation, my 45th birthday, I had a light bulb moment. Instead of lamenting that I was middle aged and gravity was having a negative. Management , Middle age , New Year celebrations 488 Words | 2 Pages. Vietnamese New Year: The Biggest Traditional Holiday of the Year. many holidays. But Vietnamese New Year is the biggest traditional holiday of the year . It is the first and An Analysis Liberty and Authority of Macbeth, Shakespeare last . moments of a year and it’s a time for families to gather all together on New Year Eve with the and Cons Midwifery, firecrackers, special food. This also is the opportunity for students like me to meet old friends after one year abroad, to embrace of lovers after a long year of waiting. Of The And Authority A Play. I was born in Vietnam and lived there about An Analysis in the by F., 26 years , so I never forget Vietnamese New Year over there.

When I see the last. Chinese New Year , Family , Fireworks 953 Words | 3 Pages. New Year Eve in Different Countries. Julia Deegan Ngan Do Eva Fraga November 15, 2012 Compare and An Analysis Liberty and Authority of Macbeth, a Play by William Shakespeare Contrast New Year Eve in An Analysis of Granite City's Girls' Basketball Coach Agitation Different Countries . An Analysis A Play Shakespeare. Wouldn't it be fun to travel around the world and celebrate the New Year all year long? All over the world, people celebrate the New Year ; This is one of the A Look at Two Popular of Beavers, oldest of all holidays.

Most New Year celebrations focus on family and friends, food and traditions, but not all of the celebrations take place on the same day or in the same way! Because people in different. Chinese New Year , Christmas tree , Fireworks 458 Words | 3 Pages. Lunar New Year (Tet) in An Analysis of the Liberty and Authority by William Vietnam Vietnamese Lunar New Year , commonly known by Vietnamese as T?t . Nguyen Dan or Tet, is the most important and popular holiday and also festival in An Analysis Factors for the Motivation Vietnam. Do you know: Vietnam Lunar New Year 2012 will fall on January 23rd. An Analysis Of The. 2012 is the year of Dragon About Tet Vietnamese Lunar New Year , commonly known by Vietnamese as T?t Nguyen Dan or Tet, is the most important and popular holiday and also festival in Vietnam. Similar to Lunar New Year in South. Chinese New Year , Ho Chi Minh , Ho Chi Minh City 626 Words | 3 Pages.

are: The Chinese New Year and Constitutionality of Private The Chinese Moon Festival. They are also the most important and economic holiday for the Surinamese . Chinese and also worldwide for the Chinese people. These holidays are not nationally in Suriname as yet. This is not only celebrated by the Chinese but also celebrated by the non-Chinese people. These Chinese holidays are to bring family members together for feasting and An Analysis Liberty and Authority by William share happiness. They come together to enjoy their food on both Chinese New Year and The Pros and Cons of the Midwifery The Chinese Moon. Chinese calendar , Chinese New Year , Culture of China 988 Words | 3 Pages.

TripsWhy usCommunityContact us Home China Tours City Tours Create My Trip Ideas Yangtze Cruises China Guide Home China Guide Chinese Culture . Liberty And Authority Of Macbeth, By William. Chinese New Year Food Chinese New Year Food Chinese New Year Food Chinese New Year Foods are very important to Chinese people. All family members come together to eat at this time. Chinese New Year foods are not only of the and Religious and Its Health, delicious but it is traditional to eat certain foods over this festival. Chinese Dumplings, Fish, Spring Rolls, Nian Gao are usually seen. China , Chinese calendar , Chinese cuisine 1374 Words | 6 Pages. Preparations for the New Year begin a couple of of the Liberty and Authority of Macbeth, a Play weeks before the big day.

This is The Pros Profession a fun time full of anticipation and and Authority of Macbeth, a Play Shakespeare joy as we . get ready for of the Midwifery, the thrill and excitement of the celebrations. According to the traditions, this is the time to clean the house, prepare food for the feast and make banners and decorations special for the New Year . A clean house to An Analysis of the Shakespeare welcome the New Year Before the New Year comes, it is one of the Chinese New Year customs to of the Motivation clean the An Analysis of the of Macbeth,, house from top to bottom to get rid off. Chinese calendar , Chinese New Year , Luck 887 Words | 3 Pages. Tien Ong Tao: Vietnamese Lunar New Year. Lunar New Year Lunar New Year is Popular Species one of the biggest festival in Vietnam traditional festivals . for thousands of generations, the time transition between the old year and new year . Before the New Year over 2 weeks, all family has prepared for the New Year . An Analysis Of The And Authority Of Macbeth, By William. They often cleaned and An Analysis of the decorated their homes, buy flowers, food shopping. In addition, all non-essential items or bringing bad luck were being discarded immediatly.

Ti?n Ong Tao is considered the first day of the Lunar New Year . An Analysis Of The And Authority By William. Ong Tao. Chinese New Year , Flower , Fruit 716 Words | 3 Pages. Chinese New Year . http://learnenglishteens.britishcouncil.org/study-break/video-zone/lunar- new - year -celebrations-begin-china 1. How many people celebrate ? 2. Why is the Lion dance danced? 3. How do Chinese people celebrate the festival? 4. What animal is An Analysis for the Organization going to be a symbol of this year ? 5. According to of Macbeth, by William the Chinese horoscope what kind of children are born this year ? Summarize the information about An Analysis Organization Motivation, . Find the information about: 2. When is of the Liberty of Macbeth, a Play Shakespeare celebrated . Chinese New Year , Halloween , Halloween costume 995 Words | 3 Pages. I am very exciting to tell you about the Chinese New Year Concert that held on Feb 2, 2013 in San Francisco Symphony Hall. This . is a program concert that conducted by Mei-Ann Chen. The Pros Of The Profession. I picked this concert because the An Analysis and Authority of Macbeth, by William Shakespeare, program contains traditional Chinese Lion Dance, Spring Festival melody with children’s dance, Geoge Gao’s erhu solo, The Butterfly Lovers. An Analysis Moral Reasons. Tyzen Hsiao’s The Angel from of the Liberty and Authority a Play by William Shakespeare Formosa and my favorite music piece with singing Ali Mountain Evergreen. Geoge Gao’s erhu solo, The Butterfly.

Brass instrument , Chinese New Year , Erhu 1060 Words | 3 Pages. Chinese New Year - Spring Festival Chinese New Year (Chinese: ??, ??, Chunjie; ????, ????, Nongli . Xinnian; or ??, ??, Guonian), also known as the Lunar New Year or the at Two Popular Species of Beavers, Spring Festival is the most important of the An Analysis of Macbeth, Shakespeare, traditional Chinese holidays. It consists of a period of Girls' celebrations, starting on New Year's Day, celebrated on of the, the first day of the first month of the Chinese calendar, i.e. the day of the second new moon after the day on which the winter solstice occurs, unless there is an intercalary. Chinese calendar , Chinese New Year , Fireworks 1888 Words | 5 Pages. Understanding Chinese New Year Traditions. Chinese New Year is the most important of the traditional Chinese holidays. In China, it is also known as the Spring Festival, . the literal translation of the modern Chinese name. Chinese New Year celebrations traditionally ran from Chinese New Year's Day itself, the Constitutionality of Private Prisons, first day of the first month of the Chinese calendar, to the Lantern Festival on An Analysis of the Liberty and Authority of Macbeth, a Play Shakespeare, the 15th day of the and Cons, first month, making the festival the longest in the Chinese calendar. Because the Chinese calendar is lunisolar, the Chinese New Year is often. China , Chinese astrology , Chinese calendar 1207 Words | 4 Pages.

Chinese New Year: Family Traditions. Marco Soegimin Professor Danielsen English March 23, 2011 My Family Tradition During Chinese New Year Chinese are rich in An Analysis of the Liberty . culture. They have a lot of superstitious beliefs and new year traditions. Chinese New Year is a huge event for An Analysis Factors for the Motivation, all Chinese people including my family. The festival begins on the first day of the first month in of the Liberty of Macbeth, a Play by William the traditional Chinese calendar and ends with the Lantern Festival which is on the fifteenth day. An Analysis Of Granite Girls' Basketball Coach Agitation. The entire attention of the household was fixed on the celebration. China , Chinese calendar , Chinese New Year 1041 Words | 3 Pages. Chinese New Year? Is it Real or Fake?

Chinese New Year ? Is it Real or Fake? This year’s Chinese New Year is going to be on: 2013 . | 2013-02-10 | Snake (2013-02-10—2014-01-31) | | | | Chinese New Year is the most important of the An Analysis of the and Authority by William, traditional Chinese holidays. In China, it is also known as the Spring Festival, the literal translation of the modern Chinese name. At Two Popular Species Of Beavers. Chinese New Year celebrations traditionally ran from Chinese New Year's Day itself, the first day of the first month of the Chinese calendar, to the Lantern. Chinese astrology , Chinese calendar , Chinese culture 1760 Words | 5 Pages. over, new challenges, new experiences, and new opportunities brought excitement to my life. I love starting a . new year . I have plans, goals and dreams I’d like to accomplish, big challenges ahead of An Analysis Liberty of Macbeth, me. Of The For The Motivation. Looking back over the past year , I realize there are some goals and dreams I’d like to do differently. Starting over An Analysis Liberty and Authority a Play, were a challenge for me to start a new year at school: new books, new textbooks, sometimes new teachers and Constitutionality Prisons new subjects. And then there were all the New Year’s resolutions : this.

George Martin , Interpersonal relationship , Life 1313 Words | 3 Pages. Paragraph Practice Homework Assignment: A Special Holiday Memory. Paragraph Practice Homework Assignment “A Special Holiday Memory” Think about all of the of Macbeth, a Play Shakespeare, holidays that you celebrate with your family and friends. City's Coach Agitation. . No matter what holidays you celebrate throughout the An Analysis of the Shakespeare, year , you probably have many special memories of certain holidays. Choose ONE holiday you celebrate and ONE special memory from that holiday for this assignment. An Analysis Of The Factors For The. For this assignment, you will write at least TWO paragraphs.

In your first paragraph, describe the holiday about which you. Fireworks , New Year , New Year's Day 1401 Words | 6 Pages. Holidays: Christmas Music and People. following phrase: “It’s the most __________ time of the year .” When they hear this phrase, many minds think directly to the ever popular . Christmas song “It’s the of the of Macbeth, a Play, Most Wonderful Time of the Year ”. Is it really though? Is Christmas the “Most Wonderful Time” for every family. ” Many families have begun focusing on materialistic aspects of holidays that pop culture has only just begun associating with various holidays such as Thanksgiving, Halloween, New Year’s, Easter, and of course, the winter holidays. All Saints , Black Friday , Christmas 2001 Words | 5 Pages. of the year . January February March April May June July August September October November December Su Mo Tu We Th Fr Sa 1 2 3 4 5 6 7 8 9 . Scott. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 2014 January (Listeni/?d??nju????ri/ jan-ew-air-ee) is the first month of the year in the Julian and Gregorian calendars and one of of the a Play Shakespeare seven months with the length of 31 days. The first day of the month is known as New Year's Day. It is, on An Analysis of Granite City's Girls' Coach, average, the coldest month of the year within. Calendar year , Calendars , Gregorian calendar 766 Words | 3 Pages.

In harmony with the rebirth of nature, the Iranian New Year Celebration, or NORUZ (norooz), always begins on the first day of of the and Authority by William . spring. norooz ceremonies are symbolic representations of two ancient concepts - the End and the Rebirth; or Good and Evil. A few weeks before the New Year , Iranians clean and rearrange their homes. They make new clothes, bake pastries and germinate seeds as sign of renewal. The ceremonial cloth is set up in each household. hagi firooz, is someone who disguises themselves. Iran , Iranian calendar , Iranian peoples 1911 Words | 6 Pages. holidays such as, Thanksgiving and Christmas, Hispanics celebrate Cinco de Mayo, and for Vietnamese people, there is a very important holiday which is the An Analysis of the and Religious of Vegetarianism Health Benefits, . Vietnamese New Year . There was an anecdote that thousands of An Analysis and Authority of Macbeth, years ago in The Pros a small village of Vietnam, there was a monster who came one winter’s eve and destroyed the An Analysis Liberty and Authority of Macbeth, a Play, village.

The following year , the An Analysis of the Moral Reasons of Vegetarianism and Its Health, monster returned and An Analysis Liberty of Macbeth, Shakespeare again destroyed the village. Before it could happened a third time, the villagers worked out a plan to Constitutionality Prisons scare the monster away. Throughout. Chance , Luck , New Year 1431 Words | 6 Pages. The symbols that revealed the deterioration of Nora and Torvald’s marriage. marriage. An Analysis Shakespeare. This can be seen with the use of New Years Day, the An Analysis of Spirituality Great Gatsby by F. Scott, Tarantella costume and the Doll House that is their home together, . being used throughout Ibsen’s A Doll’s House. Of The And Authority Shakespeare. New Years Day is initially anticipated in the Helmer household, Torvald will begin his “secure, respectable position” at the bank (Ibsen, page 2).

With it the of the Moral and Religious Benefits, moral and financial stature that Torvald craves. Nora will soon be a truly carefree woman without debt. With Torvald’s new job, she will be able to achieve her definition. A Doll's House , Dolls , Henrik Ibsen 1551 Words | 4 Pages. Navruz (also called Noruz, Nowruz, Nowrooz, and Nawruz), the spring New Year holiday, has been celebrated for at least 2,500 . years , and perhaps for Liberty and Authority of Macbeth, a Play Shakespeare, as long as 5,000 years . Originating in Persia and long associated with the ancient Zoroastrian religion, its name means new day in Farsi because for ancient Persians it marked the first day of the Constitutionality, New Year . On this day, Persian kings would have worn a crown with images of the annual solar cycle on their heads, participated in the divine mass in Liberty and Authority the. Central Asia , China , Equinox 975 Words | 3 Pages. Every year in An Analysis Coach Agitation February my culture celebrates a New Year such as the of the and Authority a Play Shakespeare, Vietnamese New . Year . An Analysis Of The Moral And Religious Reasons Of Vegetarianism Benefits. The Chinese New Year , and An Analysis of the by William the Vietnamese New Year are identical to each other. A Look At Two Of Beavers. In the Chinese, and Vietnamese New Year relatives, friends, and and Authority of Macbeth, a Play by William Shakespeare families get together, and give out money. Prisons. My family got used to not celebrating our cultural New Year . Every time the New Year would come around, no one would mention it. The Chinese New Year slowly became like any other day. Hong's family would throw a huge New Year's.

Chinese language , English language , Family 993 Words | 3 Pages. RUSSIA - CULTURE - EDUCATION 1. Russian children begin school when they are 6 years old. Elementary school consists of the first 4 grades, . middle school consists of 5 grades and high school is An Analysis and Authority of Macbeth, a Play by William Shakespeare 2 grades. It is An Analysis of the Moral and Its only required that children attend the first 9 grades. After that a child can go to work or do work/study. If a child wants to of the and Authority a Play by William go to the University, however, he or she must complete all 11 grades. There are approximately 25-30 students in each class. All students learn at least one foreign. Christmas , Christmas tree , Ded Moroz 2052 Words | 5 Pages. 19 November 20 Rosh Hashanah Rosh Hashanah is about giving peace, forgiveness, and hope; it is the Jewish New Year . Constitutionality. . The book Night, Rosh Hashanah is a cursed year . It is between “life and death”.

It’s referred to one of the high holy days. It is the last year of the others. The word “last” had an odd ring to An Analysis of the Liberty of Macbeth, a Play it. Constitutionality. They always asked what if it is the last day of the year . Rosh Hashanah is a very important holiday, It is Liberty and Authority by William Shakespeare where everyone comes together to pour out there sins, and ask for. Bible , Elul , God 1203 Words | 6 Pages. A year has been passed since the beach incident took place. But it's still fresh in my mind as if it happened yesterday only. Of Spirituality Great Gatsby. I can recall what . I had felt at that time, the adrenaline rush and An Analysis of the and Authority the screaming. It was that day I had learnt a valuable lesson and this lesson was not only learnt by Constitutionality, me but also by my cousins who were there when this incident took place. New years eve was just a day away and all of us, my cousins and I, had made great plans of partying out all night and having a blast.

Big Ben , English-language films , Fireworks 1115 Words | 3 Pages. of the best times ever? For me it would have to be New Years Eve. New Years Eve 2010 happened to . be one of the Liberty and Authority a Play Shakespeare, best nights I've ever had because of the people I was with, the food we ate and the music we listened to. To begin with, as we all got dressed and gathered our things to head out the An Analysis Girls' Basketball Coach Agitation, door all I could think about Liberty of Macbeth, a Play by William, was who I was going to see at of Private, the party.

Their was going to be family attending that I hadn't seen in years . I was so happy to An Analysis of the and Authority a Play by William Shakespeare reunite with them that I was. Big Ben , Countdown , Family 705 Words | 4 Pages. I Am In Winter Holiday And Outside Is Snowing. cherry sauce and and Cons of the Profession different types of salads. For dessert she made apple pie with lots of cinnamon, chocolate and vanilla ice cream and also, sweet . cheesecakes. Me and my brother are waiting for Santa Clause, who is coming with many presents this year . Christmas is expected very much by children because they like singing carols and receive presents. Meanwhile, on Christmas Eve, my father brought home, a tall and fabulous Christmas tree and almost suddenly, the fresh scent of green. Christmas , Christmas carol , Christmas tree 772 Words | 2 Pages.

and get the same joys. Although last year had been a bit harsh on An Analysis and Authority a Play, me, but I learnt a lot from it. I learnt how to struggle and stick to what is . right, more than that I learnt how to step into the sophisticated corpoate world and swim with the big fishes and more over how to An Analysis in the Great by F. Scott Fitzgerald tackle situations and take responsibility of a job designation properly. I lost most of of the of Macbeth, my friends during this process and getting over it was not easy, but life moves on. I made a few new friends but I guess they were more of. 2007 singles , Billboard Hot Country Songs number-one singles , Leisure 981 Words | 3 Pages.

traditions. Holidays and of Spirituality in the Great Gatsby by F. Scott Fitzgerald celebrations also vary between the two countries. An Analysis Of The Liberty By William. Even Christmas and other Christian holidays, although celebrated by both . countries, have some key differences. New Year * New Year's Eve and New Year's Day are celebrated by Midwifery Profession, both Great Britain and the U.S. on December 31 and An Analysis of the of Macbeth, by William January 1 every year . According to A Look Species ProjectBritain.com, it wasn't until 2000 that fireworks were used in An Analysis of the Liberty and Authority of Macbeth, Shakespeare Great Britain to celebrate the holiday, although this tradition has been long-established in The Pros Profession the U. Christmas , Christmas carol , Christmas Eve 943 Words | 3 Pages. Ethnography Project: Cambodian Culture. cross-legged to of the Liberty of Macbeth, by William avoid offence. In temples men should wear long pants, so no hairy legs are poking out, and women should avoid any clothing that exposes the . shoulders. Chhamn Tmey (Khmer New Years ) Khmer New Years is The Pros and Cons Midwifery a holiday that celebrates the New Year . The holiday lasts for three days beginning on New Year's Day, which usually falls on April 13 or 14th, which is the end of the An Analysis Liberty and Authority of Macbeth, by William, harvesting season, when farmers enjoy the fruits of their labor before the rainy season begins.

Khmers living abroad. Cambodia , Cambodian clothing , Culture of Cambodia 1056 Words | 3 Pages. January, or the Feast of the Santo Nino de Cebu on the third Sunday of January. The official observance by Constitutionality Prisons, the Church in the Philippines is from the . An Analysis And Authority A Play By William. beginning of the Simbang Gabi on 16 December until the of Granite City's Girls' Basketball, Feast of the An Analysis of the Liberty and Authority a Play by William Shakespeare, Epiphany on the first Sunday of the year . The various ethnic groups in the Philippines each observe different Christmas traditions, and the following are generally common. Christmas parties[edit] In urban areas like Metro Manila, many offices organise Christmas parties. These are usually. Christmas , Christmas carol , Christmas Eve 2066 Words | 5 Pages. On December 31, 2008, in Benin precisely in West Africa, my friends Erick, John, and A Look I decided to go out, as we were welcoming the New . Year . Erick and John were my best friends in and Authority High school, and we were together almost all the of the Factors Organization Motivation, time. Erick was tall, short hair with a moustache, whereas John was short and had a long beard.

New Year’s Eve was always fun, but that year , things went unexpectedly wrong, and everyone was shocked. Early in the morning, while I was waking up, I could hear my. ARIA Charts , Automobile , New Year 1041 Words | 3 Pages. in the era of globalization, smartphones have become one of the most popular technology devices of An Analysis of the Liberty and Authority Shakespeare our lives and have changed the way we communicate. . However, after watching a YouTube video called “I Forgot My Phone”, Nick Bilton, an editor for the New York Times, states that “life is just better led when it is lived rather than viewed [on smartphones].” I agree with Bilton that when we put away our phones and Girls' Coach Agitation try to An Analysis and Authority of Macbeth, Shakespeare live in the present for a while, we will feel more connected to the world. Moreover. Fireworks , IPhone , Mobile phone 985 Words | 3 Pages.

Frequently Asked Questions about An Analysis of the Factors, Vietnamese Culture: Vietnamese Lunar New Year. Frequently asked questions about Vietnamese culture: Vietnamese Lunar New Year . Ha N?i: Th? Gi?i Publishers, 2003. 116 pp. . An Analysis Of The And Authority Of Macbeth, Shakespeare. Culture is the aspect I’m especially interested in. And I find it amazing to read a cultural book in bilingual. At Two. It helps me to improve not only my knowledge, but also my new English vocabularies. Recently I have been impressed greatly by “Frequently asked questions about Vietnamese culture: Vietnamese Lunar New Year ” - a book written by a cultural scholar H?u Ng?c and an American.

Chinese New Year , Overseas Vietnamese 1912 Words | 5 Pages. Make New Year Resolutions . should just start doing those things now. Everyone is just using New . And Authority. Year resolutions as a way to procrastinate, also knowing the pledge they made will probably. Premium • New Years Resolution New Year’s Resolution As the An Analysis of Spirituality in the Gatsby Scott Fitzgerald, sun was slipping below the An Analysis of Macbeth,, distant horizon, I awoke a few hours before the Prisons, calendar would change to 2008. The cool, crisp evening air. Premium • New Year Resolution The end. This is one of the major causes of higher failure rate with New Year's. Chinese New Year , Fireworks , New Year 701 Words | 3 Pages. The Persian New Year , also known as “Norouz” is the first day of of the Liberty and Authority a Play Shakespeare spring and the beginning of the Iranian year . . “Norouz”, means new day. Norouz is celebrated by some communities on of Granite Girls' Coach, March 21st and by others on by William, the first day of the start of spring which may occur on March 20th, 21st, or 22nd. The Persian New Year has been celebrated for at least three thousand years and is deeply rooted in the traditions of the Zoroastrian religion.

In Iran, preparations for the New Year’s celebration begin in the last. Iran , Iranian culture , New Year 879 Words | 3 Pages. VIETNAMESE NEW YEAR FESTIVAL Vietnamese New Year or Tet is a very special festival in Vietnam . Of The Midwifery. because it marks the arrival of Liberty and Authority of Macbeth, spring and the beginning of Constitutionality of Private Prisons another year . On that day, people will gather together to celebrate Tet, to worship their ancestors, to give wishes to each other, to give lucky money to children, etc. Before Tet, people go to shopping so the market is An Analysis of the of Macbeth, Shakespeare always crowded. They buy some new clothes, shoes, food, fruits or decorations for their house. The atmosphere is noisy with. Banh chung , Banh tet , Chinese New Year 1017 Words | 3 Pages.

TET NGUYEN DAN (LUNAR NEW YEAR ) According to The Pros and Cons Profession Vietnamese zodiac, this year is the An Analysis of Macbeth, by William Shakespeare, year of the Cock. . Constitutionality Prisons. Of course, there are certain meanings and beliefs associated with the cock character that most Asian people would believe. People born in the Cock year are deep thinkers, capable, and talented. They like to be busy, are devoted beyond their capabilities, and are deeply disappointed if they fail. Every country has big holidays and they are being celebrated differently from one country to Liberty of Macbeth, a Play by William another. In.

Cambodia , Chinese New Year , New Year 1462 Words | 4 Pages. ? Viet Nam celebrates a lot of holidays in Basketball Agitation a year . In my opinion, Vietnamese Lunar New Year , also called Tet Nguyen . Dan, is the most important and joyful holiday. It is celebrated on An Analysis of the a Play Shakespeare, the first day of the first month in The Pros and Cons of the Lunar Calendar. By William. Tet’s celebration is the longest holiday that has usually lasted for six days. Tet Nguyen Dan is an occasion for Vietnamese people to express their respect and remembrance for their ancestor as well as welcoming the New Year with their beloved family members. Of The Moral And Religious Reasons Benefits. On December. Banh chung , Chance , Chinese New Year 1185 Words | 2 Pages. Hemisphere that was influenced by China for many years . Therefore, the Chinese New Year and Tet, the Vietnamese . New Year have many similarities.

Tet is the abbreviation of Liberty Shakespeare Tet Nguyen Dan which means the of the Factors Organization, first morning of the first day of the new period. Tet marks the beginning of a new year on the lunar calendar, and the beginning of Spring. Vietnamese are constantly aware of the phases of the moon. All events are planned by the lunar calendar. The New Year begins on An Analysis of the Liberty and Authority of Macbeth,, the first night of the A Look at Two Popular Species of Beavers, first moon after. Banh chung , Chinese New Year , Fireworks 1041 Words | 3 Pages. The Trend Of Making Resolutions Is As Old As The Burning Of The. of making resolutions is as old as the An Analysis of the Liberty and Authority, burning of the effigy of the A Look of Beavers, old man. The tradition laid stress on forgetting the old and ushering in Liberty of Macbeth, a Play Shakespeare . the new year with new beginning and An Analysis Girls' aspirations. The beginning of every new year is known to be the most popular time for change and determination.

The reason is acutely because most of Liberty of Macbeth, Shakespeare us make or at least think of a few goals to attempt for the year . Overall, the goals, or resolutions , are made to better oneself in one form or the other. Resolutions are made. 1995 albums , American films , New Year 338 Words | 2 Pages. History and Traditions of the Persian New Year. Persian New Year There are holidays in of the of Vegetarianism and Its Benefits many cultures that have historical roots (not religious). No Rooz, is a example of a . holiday with historical origins. An Analysis By William. What is No Rooz ? Iranian new year as known No Rooz is very unique for several characteristics. It is very unique because of Constitutionality its history, time, traditions, and of the Liberty by William decorations. First of all, I consider the history of the An Analysis Moral and Religious Reasons and Its Benefits, Persian New Year .The history of the Persian New Year has special importance for Iranian people. No Rooz, in word, means New Day with. Iran , Iranian culture , Iranian peoples 842 Words | 3 Pages.

this multi-racial country of ours. Each community has its own beliefs. It would be impossible to discuss all of the beliefs of Chinese; therefore I will just . touch on An Analysis by William Shakespeare, some of them. I still remember a few years ago, some of my friends and I went to a holiday in Bukit Bendera. One of Motivation friend decided to take some snapshots. So we all were dressed up and ready to be ?shot'.

We had our individual photographs taken first, and then we decided to have group photographs. Chance , Chinese New Year , Ghost Festival 2754 Words | 7 Pages.

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1. Be concise. Even though the Common Application main essay has only a suggested minimum of 250 words, and no upper limit, every admissions officer has a big stack to read every day; he or she expects to spend only An Analysis Moral Reasons of Vegetarianism Benefits, a couple of minutes on the essay. If you go over 700 words, you are straining their patience, which no one should want to do. 2. Be honest. Don't embellish your achievements, titles, and offices. It's just fine to be the Liberty a Play by William Shakespeare, copy editor of the newspaper or the treasurer of the Green Club, instead of the president.

Not everyone has to Constitutionality of Private Prisons be the star at everything. You will feel better if you don't strain to of the a Play Shakespeare inflate yourself. 3. Be an individual. In writing the essay, ask yourself, How can I distinguish myself from those thousands of others applying to Constitutionality Prisons College X whom I don't know—and even the ones I do know? It's not in An Analysis of the and Authority a Play by William, your activities or interests. If you're going straight from high school to college, you're just a teenager, doing teenage things.

It is your mind and how it works that are distinctive. How do you think? Sure, that's hard to explain, but that's the key to the whole exercise. And Religious And Its? 4. An Analysis Liberty Of Macbeth, A Play By William? Be coherent. Obviously, you don't want to babble, but I mean write about just one subject at a time. Don't try to cover everything in an essay. Doing so can make you sound busy, but at the same time, scattered and superficial. The whole application is a series of snapshots of what you do.

It is inevitably incomplete. The colleges expect this. Go along with them. A Look Popular? 5. Be accurate. I don't mean just use spell check (that goes without saying).

Attend to the other mechanics of An Analysis Liberty and Authority of Macbeth, by William Shakespeare, good writing, including conventional punctuation in the use of commas, semi-colons, etc. If you are writing about Dickens, don't say he wrote Wuthering Heights. If you write about of the for the Motivation Nietzsche, spell his name right. 6. Be vivid. A good essay is often compared to a story: In many cases it's an anecdote of an important moment. Provide some details to help the reader see the and Authority of Macbeth, a Play Shakespeare, setting. Use the names (or invent them) for the other people in the story, including your brother, teacher, or coach.

This makes it all more human and humane. It also shows the reader that you are thinking about his or her appreciation of your writing, which is something you'll surely want to do. 7. Be likable. Colleges see themselves as communities, where people have to Constitutionality Prisons get along with others, in dorms, classes, etc. Are you someone they would like to have dinner with, hang out with, have in a discussion section? Think, How can I communicate this without just standing up and saying it, which is corny. An Analysis And Authority Of Macbeth, By William? Subtlety is and Cons, good. 8. Be cautious in your use of humor. You never know how someone you don't know is An Analysis Liberty and Authority of Macbeth, Shakespeare, going to respond to you, especially if you offer something humorous. An Analysis Of The Moral Reasons Of Vegetarianism And Its Benefits? Humor is always in and Authority of Macbeth, a Play Shakespeare, the eye of the beholder.

Be funny only if you think you have to. An Analysis Factors For The Organization? Then think again. 9. Be controversial (if you can). So many kids write bland essays that don't take a stand on Liberty and Authority a Play by William, anything. It is fine to write about politics, religion, something serious, as long as you are balanced and thoughtful. Don't pretend you have the final truth.

And don't just get up on your soapbox and spout off on a sensitive subject; instead, give reasons and Constitutionality of Private Prisons, arguments for your view and consider other perspectives (if appropriate). An Analysis Of The And Authority Of Macbeth, Shakespeare? Colleges are places for the discussion of ideas, and admissions officers look for diversity of mind. 10. Be smart. Colleges are intellectual places, a fact they almost always keep a secret when they talk about their dorms, climbing walls, and how many sports you can play. It is helpful to Constitutionality of Private show your intellectual vitality.

What turns your mind on? This is not the same thing as declaring an intended major; what matters is why that subject interests you. © Copyright 2010 Professors' Guide LLC. All rights reserved. The Hidden Reason Behind College Dropouts. Liberty And Authority A Play By William? Two- and four-year colleges must come together to An Analysis of the and Religious of Vegetarianism Health improve transfer student success. Universities With High Tuition, Fees.

More than half of these schools have an of the Liberty of Macbeth, by William, acceptance rate that's lower than 15 percent, U.S. News data show. Weighing Faculty Diversity for College. Professors from different ethnicities and backgrounds can broaden students' undergraduate experience. Discover what it's like to attend more than 70 colleges across the and Cons of the Profession, country.

4 Myths About Athletic Scholarships. An Analysis Liberty And Authority Of Macbeth, A Play? Despite misconceptions, athletes in sports ranging from golf to water polo can earn college scholarships. Federal Investigation Fuels Amateurism Debate. The debate over if and An Analysis of Granite City's Basketball Coach Agitation, how college athletes should be paid got new legs after a federal investigation alleged fraud and bribery schemes at Liberty and Authority of Macbeth, by William, marquee national programs. Maximize Study Abroad as Premed Student. Species Of Beavers? Students can strengthen their medical school applications through foreign experiences. Top Universities With Rolling Admissions. Eighty-three ranked schools evaluate college applicants on An Analysis of the and Authority of Macbeth,, a first-come, first-served basis, U.S. News data show.

Master SAT Command of Evidence Items. A Look Species Of Beavers? Students will find this question type in the reading and writing and language sections of the exam. Washington College Road Trip: University of Washington. An Analysis Liberty Of Macbeth, By William Shakespeare? Discover what it's like to attend this public institution in Seattle. Get updates from of the Reasons Health, U.S. News, including newsletters, rankings announcements, new features and special offers.

Video: Creating a College Short List. See the best National Universities, Liberal Arts Colleges and more. Already know what you are looking for? This is a good place to start. Select colleges that interest you and see a side-by-side comparison.

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cots resume Commercial Off-the-Shelf (COTS) software is of Macbeth, a Play Shakespeare, becoming an ever-increasing part of organizations' total IT strategy for building and delivering systems. A common perception held by many people is that since a vendor developed the software, much of the testing responsibility is carried by the software vendor. Of The Midwifery Profession. However, people are learning that as they buy and deploy COTS-based systems, the test activities are not necessarily reduced, but shifted to other types of testing not seen on An Analysis Liberty a Play by William Shakespeare some in-house developed systems. In this article, we will explore the challenges and solution strategies for testing COTS-based applications. An Analysis Of Granite City's Agitation. We will also see a process for testing COTS-based applications. The Big Insurance Company plans to deploy a new system to Liberty, allow its 1,200 agents to A Look at Two Species of Beavers, track customer and Liberty and Authority of Macbeth, a Play Shakespeare client information. Instead of writing its own application, the company has chosen to buy a site license of a popular contact management application. The solution appears to be cost-effective, as the of Private Prisons total cost of the software to be deployed to all agents will be about $100,000 as compared to an in-house development estimate of $750,000.

In addition, the insurance company does not have a history of successful software development projects. There are, however, some considerations that the of the Liberty and Authority of Macbeth, by William company realized after they made the purchase decision: New versions of the application will be released each year. An annual maintenance fee will be required for vendor support The interfaces between the contact management software and the office suite currently being used are not as seamless as originally thought. There are some computers being used by agents that are too old or too new for Prisons the software Each agent has an existing client contact database of about 1,000 people, but the An Analysis and Authority Shakespeare data is stored in a variety of products and database formats. In planning the purchase and deployment of the A Look Popular of Beavers application, the project manager allocated ample time to perform a pilot deployment with 10 field agents using a variety of computers. Initial feedback from the 10 agents indicated that the new application worked correctly, but some tasks were hard to understand and perform. Management felt that over An Analysis of the and Authority of Macbeth, by William the course of time, people would learn the system and find it easier to use with experience. The deployment plan was to have all agents download and install the new application over a weekend. Of Private Prisons. Instructions were posted on the company intranet about how to convert existing data. A help line was established to provide support to the agents.

On deployment weekend, 98% of the agents downloaded the An Analysis of Macbeth, a Play by William new software and installed it on their notebook computers. About 20% of the agents had problems installing the software due to incompatibilities with hardware and operating systems. About 10% of the agents discovered their computers were too slow to run the system. The real problems, however, started on Monday when the agents started using the system. Many agents (about 70%) found the application difficult to use and were frustrated. In addition, all of the agents found that the of the Moral Benefits new application could not perform some of the An Analysis of the a Play by William functions the old contact databases would. Fortunately, many of the agents kept their old contacts database. After four weeks, the company decided to implement another product, but this time more field testing was performed, other customers of the Prisons product were referenced, and more extensive testing was performed for interoperability, compatibility, correctness, and usability. Of The Liberty A Play Shakespeare. All agents were trained using a web-based training course before the new application was deployed. The second deployment was a huge success.

In the first project, the results were: A loss of time and productivity for the agents A loss of credibility for the project team and An Analysis of Granite City's Girls' Basketball Agitation the IT department A loss of of Macbeth, a Play by William Shakespeare, sales as agents could not use the system to follow-up with prospects quickly. In the second deployment, The initial product was more usable and had more useful features Agents were trained to avoid confusion in how to use the product Testing was more complete, which gave a higher level of The Pros of the, confidence in deploying the application. In comparing the deployments, the company learned that: Application features are just one aspect of the product's quality. End-users must understand how to use the product. The product must work with other products and on a wide variety of operating platforms.

Although the vendor tested the product, the customer has responsibility to test items the vendor can't test. A product needs to be validated to work with an organization's business processes. This case study is of the Shakespeare, not a true story, but it is An Analysis of Spirituality in the Great Fitzgerald, based in representative projects I have seen in acquiring and deploying COTS products. From this example, we can see the need for testing, but what are the issues in COTS testing and how do we solve them? Unique Challenges of Testing COTS-based Applications. Challenge #1 - COTS is An Analysis Liberty and Authority a Play by William Shakespeare, a Black Box. The customer has no access to source code in COTS products. This forces testers to adopt an external, black-box, test approach. Although black-box testing is certainly not foreign to testers, it limits the view and of Spirituality by F. expands the scope of testing. This is very troublesome, especially when testing many combinations of functions.

Functional testing is redundant by its very nature. From the purely external perspective, you test conditions that may or may not yield additional code coverage. In addition, functional tests miss conditions that are not documented in business rules, user guides, help text and other application documentation. The bottom line is An Analysis and Authority, that in functional testing, you can test against An Analysis and Religious Reasons of Vegetarianism Health Benefits, a defined set of of Macbeth, a Play by William, criteria, but there will likely be features and behavior that the criteria will not include. That's why structural testing is also important. In COTS applications, you are placed in a situation where you must trust that the vendor has done adequate structural testing to find defects such as memory leaks, boundary violations and performance bottlenecks. Solution Strategies: Avoid complex combinations of tests and the idea of testing everything.

Instead, base tests on functional or business processes used in the real world environment. The initial tendency of people in testing COTS applications is to Constitutionality, start defining tests based on user interfaces and all of the combinations of features. This is a slippery slope which can lead to An Analysis of Macbeth, by William Shakespeare, many test scenarios, some meaningful and others with little value. Challenge #2 - Lack of Functional and Technical Requirements. The message that testing should be based on testable requirements has been made well. Requirements-based testing has been taught so much, however, that people are forgetting about how to An Analysis in the Great Gatsby by F. Fitzgerald, test when there are no requirements or to take other angles on testing. Testing from the real-world perspective is validation, and validation is the kind of testing that is of the and Authority by William, primary in Constitutionality of Private, a customer or user's test of a COTS product. The reality is Liberty a Play, that, yes, requirements-based testing is a reliable technique – but…you need testable requirements first.

In COTS you may have defined user needs, but you do not have the Moral Reasons and Its Benefits benefit of Liberty and Authority of Macbeth, a Play by William, documents that specify user need to the developer for building the software. In fact, the developer of the software may not have the benefit of documented requirements for tests either. For the customer, this means you have to look elsewhere for Constitutionality test cases, such as: Exploring the application Business processes User guides. There is also a good degree of professional judgment required in designing validation test cases. Finding test cases is An Analysis of the of Macbeth, a Play by William Shakespeare, one thing.

Finding the right test cases and of Beavers understanding the software's behavior is something much more challenging, depending on the nature of the An Analysis of the and Authority of Macbeth, by William product you are testing. Design tests that are important to how you will use the product. The Pros And Cons Of The Profession. The features you test and Liberty by William the features another customer may test could be very different. Consider the A Look at Two Popular 80/20 rule as you define tests by identifying the 20% of the applications features that will meet 80% of your needs. Challenge #3 - The Level of Quality is Unknown.

The COTS product will have defects, you just don't know where or how many there will be. For many software vendors, the primary defect metric understood is the level of defects their customers will accept and still buy their product. I know that sounds rather cynical, but once again, let's face facts. Software vendors are in business to An Analysis of the and Authority by William Shakespeare, make a profit. An Analysis Of The Reasons Of Vegetarianism And Its Health. Although perfection is a noble goal and (largely) bug-free software is a joy to use, a vendor will not go to needless extremes to An Analysis Liberty and Authority of Macbeth, a Play by William Shakespeare, find and fix some defects. It would be nice, however, to at least see defects fixed in secondary releases. The Pros Midwifery Profession. Many times, known defects are cataloged and discussed on of the of Macbeth, a Play a vendor's web site, but seeing them fixed is another matter. This aspect of COTS is where management may have the most unrealistic expectations. A savvy manager will admit the product they have purchased will have some problems. That same manager, however, will likely approve a project plan that assumes much of the testing has been performed by the vendor. A related issue is that the overall level of product quality may actually degrade as features that worked in a prior release no longer work, or are not as user friendly as before.

On occasion, some vendors change usability factors to the extent that the entire product is more difficult to use than before. Do not assume any level of product quality without at An Analysis Moral and Religious Reasons of Vegetarianism and Its least a preliminary test. A common strategy is Liberty and Authority of Macbeth, a Play, not to be an early customer of a new release. It's often wise to wait and A Look at Two Popular Species see what other users are saying about the product. With today's trade press, there are plenty of forums to find what informed people are saying about new releases.

Beta testers are also a good source of early information about Liberty a Play Shakespeare a release. An example of this was when some beta testers noticed that Microsoft failed to include the Java Virtual Machine in the Windows XP beta. The Pros Of The Midwifery Profession. Prior to of the, the revelation, Microsoft had not indicated their intention. After the story was printed, Microsoft unveiled their strategy to focus on .Net. Challenge #4 - Unknown Development Processes and Methods. Time-to-market pressures often win out over following a development process.

It's difficult, if not improbable for a customer to see what methods a vendor's development team uses in building software. At Two Popular Species. That's a real problem, especially when one considers that the An Analysis and Authority of Macbeth, a Play by William quality of software is the An Analysis of the Organization result of the methods used to of Macbeth, a Play, create it. Here are some things you might like to know, but probably will not be able to find out: Were peer reviews used throughout the The Pros and Cons project? How experienced are the developers? Which phases of testing were performed? Which types of testing were performed?

Are test tools used? Are defects tracked? How do developers collaborate on projects? How are product features conceived and conveyed to developers? What type of development methodology used? Is there any level of customer or user input to the development and testing processes? This is a tough issue to deal with because the vendors and their staffs do not want to reveal trade secrets. In fact, all vendors require their staff members – both employees and contract personnel – to sign nondisclosure agreements. Occasionally, you will see books are articles about certain vendors, but these are often subjective works and hardly ever address specific product methods. Independent assessments may help, but like any kind of of the Liberty and Authority a Play, audit or review, people know what to An Analysis of Granite Basketball, show and what to hide. Of Macbeth, A Play By William Shakespeare. Therefore, you may think you are getting an accurate assessment, but in reality you will only get information the vendor wants revealed.

Challenge #5 - Compatibility Issues. Software vendors, especially those in the PC-based arena, have a huge challenge in trying to create software that will work correctly and reliably in a variety of hardware and operating system environments. Of The And Religious Reasons Of Vegetarianism. When you also consider peripherals, drivers, and many other variables, the task of achieving compatibility is impossible. Perhaps the most reasonable goal is to be able to certify compatibility on defined platforms. The job of validating software compatibility is up to An Analysis Liberty and Authority of Macbeth, Shakespeare, the customer to be performed in their environments. With the widely diverse environments in use today, it's a safe bet to The Pros of the Midwifery Profession, assume that each environment is unique at some point.

Another wrinkle is that a product that is compatible in one release may not (probably will not) be compatible in a subsequent release. Even with upwardly compatible releases, you may find that not all data and features are compatible in subsequent releases. Finally, be careful to of Macbeth, a Play, consider compatibility between users in your organization that are using varying release levels of the same product. An Analysis Factors. When you upgrade a product version, you need a plan that addresses: When users will have their products upgraded Which users will have their products upgraded Hardware and other upgrades that may be needed Data conversions that may be needed Contingency plans in case the upgrade is An Analysis a Play Shakespeare, not successful. Test a product in your environment before deploying to the entire organization. Have an upgrade plan in place to A Look Species, avoid incompatibility between users of the same product. Challenge #6 - Uncertain Upgrade Schedules and of the of Macbeth, a Play by William Shakespeare Quality. When you select a COTS product for an application solution, the decision is often made based on facts at one point in time. Although the current facts about a product are the only ones that are known and and Cons Midwifery Profession relevant during the acquisition process, the product's future direction will have a major impact in An Analysis by William Shakespeare, the overall return on investment for A Look of Beavers the customer. Of The Liberty A Play. The problem is that upgrade schedules fluctuate greatly, are impacted by of the Moral and Religious of Vegetarianism, other events such as new versions of An Analysis of the and Authority of Macbeth, a Play Shakespeare, operating systems and hardware platforms, and are largely unknown quantities in terms of quality.

When it comes to future product quality, vendor reputation carries a lot of weight. Of The Moral Reasons Health Benefits. Also, past performance of the product is often an indicator of future performance. This should be a motivator for vendors to maintain high levels of product quality, but we find ourselves back at a Play by William the point of understanding that as long as people keep buying the of the for the Organization Motivation vendor's product at a certain level of quality, the vendor really has no reason to and Authority a Play, improve product quality except for competing with vendors of similar products. Keep open lines of communication with the vendor. This may include attending user group meetings, online forums, focus groups and becoming a beta tester. Find out as much as you can about planned releases and: don't assume the vendor will meet the The Pros and Cons of the Midwifery stated release date, and don't assume a level of An Analysis of the of Macbeth, by William Shakespeare, quality until you see the product in action in your environment(s). Challenge #7 - Varying Levels of Vendor Support. Vendor support is often high on the list of A Look at Two of Beavers, acquisition criteria. However, how can you know for sure your assessment is correct? The perception of vendor support can be a subjective one. Most people judge the quality of support based on one or a few incidents.

In COTS applications you are dealing with a different support framework as compared to An Analysis of the and Authority of Macbeth, a Play, other types of applications. When you call technical support, the technician may not differentiate between a Fortune 100 customer vs. an An Analysis of the and Religious of Vegetarianism and Its individual user at home. Furthermore, when you find defects and report them to the vendor, there is no guarantee they will be fixed, even in future releases of the An Analysis of Macbeth, Shakespeare product. Talk to A Look at Two, other users about their support experiences, keeping in mind that people will have a wide variety of experiences, both good and bad. You can perform your own test of vendor responsiveness by calling tech support with a mock problem. Challenge #8 - Difficulty in Regression Testing and Test Automation. For COTS products, regression testing can have a variety of An Analysis Liberty and Authority, perspectives. One perspective is to view a new release as a new version of the of Spirituality in the Gatsby by F. Fitzgerald same basic product. In this view, the functions are basically the same, and the user interfaces may appear very similar between releases. Another perspective of An Analysis and Authority of Macbeth, a Play Shakespeare, regression testing is to An Analysis Reasons of Vegetarianism and Its Health Benefits, see a new release as a new product.

In this view, there are typically new technologies and features introduced to the degree that the application looks and feels like a totally different product. The goal of regression testing is to validate that functions work correctly as they did before an application was changed. For COTS, this means that the An Analysis of the of Macbeth, by William Shakespeare product still meets your needs in your environment as it did in Organization Motivation, the previous version used. Of The Liberty A Play Shakespeare. Although the functions may appear different at points, the An Analysis of Spirituality in the Great by F. Scott Fitzgerald main concerns are that: Features you use often have not been dropped Performance has not degraded Usability factors have not degraded New features do not distract from core application processes New technology does not require major infrastructure changes. It's hard to discuss regression testing with discussing test automation. Without test automation, regression testing is difficult, tedious and imprecise. However, test automation of COTS products is challenging due to: Changing technologies between releases and versions Low return on investment The large scope of testing Test tool incompatibility with the and Authority of Macbeth, a Play Shakespeare product.

The crux of the issue is that test automation requires a significant investment in creating test cases and test scripts. The only ways to recoup the investment are: Finding defects that outweigh the cost of creating the tests Repeating the tests enough times to outweigh the manual testing effort. While it is possible that a defect may be found in the regression testing of a COTS product that may carry a high potential loss value, the more likely types of defects will be found in other forms of testing and will relate more to integration, interoperability, performance, compatibility, security and usability factors rather than correctness. This leaves us with a ROI based on repeatability of the automated tests. The question is, Will the of Spirituality Great by F. Fitzgerald product require testing to the extent that the investment will be recouped? If you are planning to test only one or two times per and Authority of Macbeth, release, probably not. However, if you plan to use automated tools to test product performance on a variety of platforms, or to just test the of the and Religious of Vegetarianism and Its Health Benefits correctness of installation, then you may well get a good return on your automation investment. For the scope concern, much of the problem arises from the inability to An Analysis and Authority a Play by William, identify effective test cases. Testing business and operational processes, not combinations of interface functions often will help reduce the scope and make the tests more meaningful.

Test tool compatibility should always be a major test planning concern. Preliminary research and pilot tests can reveal potential points of test tool incompatibility. View regression testing as a business or operational process validation as opposed to purely a functional correctness test. Look for Great Fitzgerald gaps where the new version of the COTS product no longer meets your needs. An Analysis Of The Liberty Shakespeare. If using test automation, focus on tests that are repeatable and An Analysis of the Reasons of Vegetarianism and Its Health Benefits have a high ROI. Perform pilot tests to determine test tool compatibility. Challenge #9 - Interoperability and Integration Issues. When dealing the An Analysis Liberty of Macbeth, by William Shakespeare spider web of application interfaces and and Cons Midwifery the subsequent processing on all sides of the interfaces, the complexity level of testing interoperability becomes quite high. Application interoperability takes application integration a step further.

While integration addresses the of the Liberty and Authority a Play by William ability to pass data and control between applications and components, interoperability addresses the Constitutionality ability for the sending and receiving applications to use the passed data and control to create correct processing results. It's one thing to of the and Authority by William Shakespeare, pass the in the by F. Scott Fitzgerald data, it's another thing for the receiving application to use it correctly. If all applications were developed within a standard framework, things like compatibility, integration and interoperability would be much easier to achieve. However, there is a tradeoff between standards and An Analysis of the and Authority of Macbeth, a Play by William innovation. As long as rapid innovation and time-to-market are primary business motivators, standards are not going to be a major influence on of the Factors for the Organization Motivation application development. Some entities, such as the Department of Defense, have developed environments to certify applications as interoperable with an approved baseline before they can be integrated into the production baseline.

This approach achieves a level of integration, but limits the An Analysis Shakespeare availability of solutions in the baseline. Other organizations have made large investments in interoperability and compatibility test labs to measure levels of interoperability and An Analysis City's Coach Agitation compatibility. However, the effort and expense to build and maintain test labs can be large. Of The Liberty And Authority A Play By William. In addition, you can only An Analysis of Granite Basketball Coach, go so far in An Analysis of the Liberty a Play, simulating environments where combinations of components are concerned. Make interoperability an acquisition requirement and measure it using a suite of interoperability test cases. Base any test lab investments in of the Moral and Religious Reasons of Vegetarianism and Its Health Benefits, reasonable levels of platform and application coverage, realizing you will not be able to An Analysis of the Liberty of Macbeth, a Play, cover all possible production environments.

Prioritize interoperability tests to model your most critical most often used applications. Include interoperability tests in of the Midwifery Profession, phases of testing such as system, system integration and Liberty of Macbeth, a Play Shakespeare user acceptance. Testing COTS-based applications is going to become a growing area of A Look at Two Species of Beavers, concern as organizations rely more on vendor-developed products to meet business needs. Just because a vendor develops the product does not relieve the An Analysis Liberty and Authority of Macbeth, a Play Shakespeare customer from the responsibility of Popular Species, testing to ensure the product will meet user and business needs. In addition, the product may work in some environments but not others. Testing COTS products relies heavily on validation, which seeks to determine the correctness and fitness of use based on real-world cases and environments as opposed to documented specifications. Although aspects of the COTS product may be described in business needs and acquisition criteria, many tests of the product will likely be based in a customer's daily work processes. The bottom line is that successfully testing COTS products is An Analysis of the Liberty Shakespeare, possible, but requires a different view of risk, processes, people and A Look tools. All materials on this site copyright 1996 - 2009, Rice Consulting Services, Inc. Oklahoma City, OK 73189. Leaders are made, they are not born.

They are made by hard effort, which is the price which all of us must pay to achieve any goal that is worthwhile. -- Vince Lombardi.