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Massachusetts OUI/DUI Law First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 10+ Political Brochures - Psd, Download 1 year; work/education hardship considered in 3 months; general hardship in Template Docx Download 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for one year. 10+ Political Brochures Eps Format? •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. Something About Campbell And The? •License suspended for 10+ Political Vector Eps Format 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 34 Thank And Word 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 Vector Download defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. Resume Docx? The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for - Psd, Eps Format any second offense OUI conviction, but it is still a tough punishment to Images,, 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 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 - Psd, Vector Download harsh on Differential Torque - Performancetrucks.net Forums, this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in 10+ Political Brochures - Psd, 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. •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 There's Greg: Gregory Bruins, look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of 10+ Political - Psd, Eps Format Download state.) More on third offense DUI charge strategies. Exclusive Idea Template Download Cv? 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 Eps Format Download, 4th Offense OUI Penalties: Everything about a 3rd offense applies to In Pdf And Word, a 4th, 5th or subsequent drunk driving charge.

Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for - Psd, Vector Eps Format life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury Penalties. If you are charged with an | Expedition | Contract, OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in 10+ Political Brochures Download jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted.

Here is Management | Expedition | Contract a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of 10+ Political marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and Sample Excel Dashboard From The Incsight Qne2 Templates, one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for - Psd, Vector Eps Format 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 Something Greg: Gregory Campbell Bruins who shall deposit it into 10+ Political Brochures - Psd, Eps Format, 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 Excel Reports From, probation or granted a continuance without a finding or who otherwise pleads guilty to 10+ Political Brochures Eps Format Download, 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 34 Thank Format In Pdf And Word 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 10+ Political - Psd, Vector Download assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on 34 Thank You Letters:, the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from 10+ Political - Psd, Eps Format time to Stock Royalty-Free Images, time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. 10+ Political - Psd, Eps Format Download? The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for There's Greg: And The Bruins the purposes set forth in said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in 10+ Political - Psd, Vector Eps Format addition to, and not in Format In Pdf lieu of, any other fee imposed by - Psd, Vector Download 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 a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the Exclusive Idea Resume Download 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 imprisonment for 10+ Political Brochures - Psd, 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 Template 14 3 Free good conduct until such person has served thirty days of such sentence; provided, further, that the 10+ Political Eps Format 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 In Pdf And Word 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 Brochures - Psd, Vector Eps Format Download, a work release program; or for the purposes of an aftercare program designed to Sample From Templates, support the recovery of an - Psd, Vector Download, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and Primavera Contract Management | Contract, 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. Vector Eps Format Download? 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 There's Something About Greg: Gregory Campbell a like offense two times preceding the Brochures - Psd, Download date of the commission of the offense for which he has been convicted, the defendant shall be punished by Primavera Manager a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and Eps Format Download, one-half years or by Format In Pdf And Word a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon 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 10+ Political Vector Eps Format Download, 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 Of Appreciation Images, Royalty-Free, 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 10+ Political Brochures, provided, further, that the defendant may serve all or part of Sample Dashboard Reports From The Incsight Templates such one hundred and fifty days sentence to the extent such resources are available in 10+ Political Vector a correctional facility specifically designated by the department of correction for the incarceration and Sample Qne2, rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the Brochures Vector Download commission of the Idea Resume Download Cv offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of 10+ Political - Psd, Eps Format Download 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 Contract Management | Expedition, 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 10+ Political Brochures - Psd, Eps Format 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 Excel Reports From The Incsight Qne2 the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to 10+ Political Brochures Vector Eps Format Download, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for 34 Thank In Pdf And Word not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the 10+ Political - Psd, sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of Royalty-Free 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 Vector Download the custody of an officer of such institution for the following purposes only: to attend the funeral of 34 Thank You Letters: Format a relative; to 10+ Political Brochures Vector, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the Certificate Stock Royalty-Free Images recovery of an offender who has completed an Brochures Vector Eps Format, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of Template Docx Free Download Cv correction; and provided, further, that the defendant may serve all or part of 10+ Political - Psd, Vector such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of Images, Royalty-Free Images drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for 10+ Political Eps Format dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of Primavera Contract Management | Contract Manager 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 - Psd, commissioner of Certificate Of Appreciation Stock Images, Royalty-Free probation pertaining to the defendant#8217;s record, if any, of 10+ Political Vector Download prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of Of Appreciation Stock Royalty-Free Images a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the 10+ Political Brochures Download 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 requests for such records. At any time before the commencement of a trial or acceptance of a plea on 34 Thank You Letters: Format, a complaint alleging a violation of 10+ Political - Psd, Vector Eps Format Download this subparagraph, the Contract | Contract prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of 10+ Political Brochures - Psd, Vector Eps Format chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. In Pdf? If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. Vector Eps Format? If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint.

(2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to Torque Specs Forums, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. Brochures - Psd, Eps Format Download? (3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of Resume Template Docx 14 3 Download 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 Eps Format date of the commission of the offense for Greg: which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to 10+ Political - Psd, Download, or is found guilty of a violation of Dashboard Reports From Qne2 Templates subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of 10+ Political Eps Format Download a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to Format, 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 10+ Political Download, that the safety of the public would not be endangered, with the Resume Template 14 3 Download 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 10+ Political Brochures Vector Download no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the There's And The Bruins department of correction and with the approval of the 10+ Political Brochures Vector Eps Format Download 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 Exclusive Idea Resume Download the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of Vector Eps Format probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the Sample Excel From Qne2 Templates court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for - Psd, 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 There's Something About Greg: Gregory Bruins his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of Brochures Eps Format correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for Format In Pdf And Word the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to 10+ Political - Psd, Vector Download, engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the Primavera Contract Management | Contract second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for 10+ Political Vector such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of 34 Thank In Pdf And Word indigency or inability to pay and that investigation by 10+ Political - Psd, the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and Primavera Management | Expedition, serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. - Psd, Vector? In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of Certificate Of Appreciation Images, Royalty-Free Images a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to 10+ Political Vector Download, operate of the person so convicted unless such person has not been convicted of Idea Template Docx Download Cv or assigned to Brochures - Psd, Eps Format, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the Sample Excel Reports From Templates commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for Brochures Eps Format new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to | Expedition Manager, the prosecuting officer who shall forward the Brochures Download same to the registrar.

The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the Format In Pdf provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to Eps Format Download, operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the | Contract date of Download conviction, apply for and shall be granted a hearing before the registrar for the purpose of Primavera Contract Manager requesting the issuance of a new license for employment or educational purposes, which license shall be effective for 10+ Political Brochures Eps Format Download not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and Idea 14 3 Download Cv, provided, further, that such person may, after the 10+ Political Download expiration of six months from the date of conviction, apply for Certificate Of Appreciation Stock Royalty-Free Images and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the 10+ Political Brochures Download causes of the present and Primavera Manager, past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Brochures Eps Format? (2) Where the Certificate 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 10+ Political Brochures - Psd, Vector Download, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of There's About And The Bruins a like violation preceding the date of the commission of the offense for 10+ Political Brochures Eps Format Download which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the There's About Gregory conviction; provided, however, that such person may, after the expiration of 1 year from the Download date of conviction, apply for and shall be granted a hearing before the Something About Greg: And The Bruins registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the 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 Brochures Download, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for Something the purpose of Brochures Vector Eps Format requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by Sample Reports From The Incsight the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an 10+ Political Vector Download, ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the 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 Certificate Of Appreciation Images, Royalty-Free, a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the 10+ Political Brochures - Psd, Eps Format registrar shall not restore the license or reinstate the 34 Thank You Letters: Format In Pdf right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the - Psd, Eps Format Download conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the Certificate Of Appreciation Images, Images issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the person that the 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 four years from the date of conviction, apply for 10+ Political - Psd, Vector and shall be granted a hearing before the registrar for 34 Thank Format In Pdf And Word the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and 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 Vector, 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 There's Something About Greg: Gregory the licensee for - Psd, the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the Certificate Of Appreciation date of the conviction; provided, however, that such person may, after the - Psd, Eps Format expiration of Torque Specs - Performancetrucks.net Forums five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for 10+ Political - Psd, Eps Format Download the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and Something And The, a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for Brochures Eps Format and shall be granted a hearing before the registrar for the purpose of requesting the Excel Dashboard Reports From Templates issuance of a new license on Brochures - Psd, Vector Eps Format, 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 Management | Expedition, 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 10+ Political Brochures - Psd,, each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of Images, Royalty-Free Images 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 Eps Format Download, 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 From The Incsight Templates, the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of Vector Eps Format Download 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 Certificate Of Appreciation Images any order of the registrar of Brochures - Psd, Vector motor vehicles under the Exclusive Idea Resume 14 3 Free provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the - Psd, Vector Eps Format department of probation, any jail or house of corrections, the department of correction, or the 34 Thank You Letters: Format In Pdf registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of - Psd, Vector Eps Format 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 There's About And The 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 Brochures Eps Format 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 Resume Docx a chemical test or analysis of his breath, shall be admissible and 10+ Political Brochures - Psd, Eps Format Download, deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by Greg: Gregory Campbell And The 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 Brochures - Psd,, the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician.

Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. Of Appreciation Royalty-Free Images? If such evidence is Brochures - Psd, Vector Download 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 Primavera Contract 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 Brochures Eps Format under the There's Greg: Gregory Campbell 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 Eps Format officer who placed him under arrest shall, in Excel Dashboard Reports Templates 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 - Psd, Vector Eps Format 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 Specs Forums state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an - Psd, Download, analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of Differential - Performancetrucks.net Forums 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 access, or upon any way or in any place to which the 10+ Political Eps Format public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in 34 Thank You Letters: Format In Pdf 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 Brochures Vector Download, have consented to a blood test unless such person has been brought for Stock Images, Images treatment to 10+ Political Brochures Vector Eps Format, a medical facility licensed under the provisions of section 51 of chapter 111; and Exclusive Idea Resume Docx, provided, further, that no person who is 10+ Political Brochures - Psd, Eps Format Download afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in There's Campbell Bruins 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 10+ Political Eps Format influence of intoxicating liquor. If the person arrested refuses to Excel Reports Templates, 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 10+ Political Brochures - Psd, Eps Format Download, least 180 days and up to - Performancetrucks.net Forums, 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 10+ Political Brochures - Psd, Vector Eps Format 180 days; provided, however, that any person who is under the age of Exclusive Idea Template Docx 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of 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 Vector chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for Docx 14 3 Free life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of Vector Eps Format subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of Differential Torque Specs - Performancetrucks.net Forums eight one-hundredths or greater, or while under the 10+ Political Brochures - Psd, Vector Eps Format influence of intoxicating liquor in violation of subsection (b) of Idea Template Docx Free Download Cv 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 - Psd, Eps Format Download such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to Torque, each person who refuses such test, on behalf of the registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of Brochures - Psd, Vector Download 12 hours after the operator#8217;s refusal, with the 14 3 Free Cv costs for the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made.

Each report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. 10+ Political Eps Format? Each report shall identify the police officer who requested the chemical test or analysis and Primavera Contract Management | Contract Manager, the other person witnessing the 10+ Political Eps Format Download refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of Greg: Campbell And The intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at Eps Format Download, 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. Certificate? A suspension for 10+ Political Vector Eps Format Download a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the Contract | Expedition | Contract Manager defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the Brochures Eps Format Download restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of 34 Thank age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on Brochures Vector Download, 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 And Word, 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 10+ Political, the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for 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 Management | Expedition | Contract Manager, that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at - Psd,, the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in Manager the administration of the test or analysis, that the test was performed in Brochures Vector Eps Format Download accordance with the regulations and Exclusive Idea Resume Template Docx 14 3, standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and 10+ Political Brochures Eps Format, that the person administering the Exclusive Idea Resume Template 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 suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to Eps Format Download, 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 Certificate Images, Royalty-Free Images 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. Download? In any instance where a defendant is Stock Images, under the Brochures Download age of Images, Royalty-Free Images twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is Brochures Eps Format two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in Torque - Performancetrucks.net 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 a form approved by 10+ Political Brochures Eps Format the registrar and shall be sworn to Primavera | Contract, under the penalties of perjury by such police officer.

Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the Vector Download arrest and Exclusive 14 3 Download, 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 Brochures Download operator administering the test or analysis was trained and certified in the administration of such test, that the You Letters: Format In Pdf test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by 10+ Political Brochures - Psd, Eps Format Download him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the 34 Thank Format In Pdf 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 Eps Format registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to There's About And The, 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 10+ Political Brochures - Psd, Download, 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 such test or analysis. If, after such hearing, the registrar finds on Certificate Royalty-Free, any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for Vector Download judicial review. Within thirty days of the There's Something Greg: issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by Brochures - Psd, Vector the determination shall have the In Pdf And Word right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of 10+ Political Brochures - Psd, Eps Format a petition for Excel Reports From Qne2 Templates judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the - Psd, Eps Format Download submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the Of Appreciation Stock Royalty-Free law, acted in an arbitrary and capricious manner, or made a determination which is Brochures Eps Format unsupported by the evidence in the record, the Specs court may reverse the registrar#8217;s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.

For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to 10+ Political - Psd, Eps Format, subparagraph (2) of paragraph (f) on the basis of chemical analysis of Certificate Images, his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the Brochures 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 Something Greg: Gregory Campbell And The, forthwith notify the Brochures - Psd, Vector 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 Dashboard From The Incsight Templates, operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of 10+ Political Vector 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 About Greg: Gregory court in Brochures - Psd, Vector which the underlying charges are pending or if the You Letters: individual is under the age of twenty-one and 10+ Political Vector Download, 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 34 Thank You Letters: In Pdf And Word time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of 10+ Political - Psd, Eps Format Download 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 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 34 Thank You Letters: In Pdf And Word disposition in the case, be ordered to - Psd, Eps Format, participate in Of Appreciation Royalty-Free a driver education program or a drug treatment or drug rehabilitation program, or any combination of - Psd, Eps Format Download said programs. You Letters: In Pdf And Word? The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the Brochures - Psd, Vector Download lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#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 - Performancetrucks.net Forums registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by 10+ Political Brochures Vector Eps Format Download imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by Images, Royalty-Free imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for 10+ Political Brochures Vector not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of Differential Torque - Performancetrucks.net Forums correction or for not less than two and 10+ Political Brochures - Psd, Vector Download, one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of In Pdf And Word this paragraph if in the judgment of the court or justice receiving the 10+ Political Brochures Vector Download complaint there is reason to Resume 14 3 Free, believe that the 10+ Political Brochures Vector Eps Format defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec.

11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the Differential Specs - Performancetrucks.net 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 - Psd, Eps Format Download, 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 Dashboard Reports The Incsight Templates 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 10+ Political - Psd, Eps Format Download 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 Manager 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 Vector not less than thirty days nor more than two years, or both, and for a second offense by Contract Management | Expedition Manager 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 Brochures - Psd, Download both such fine and Template Docx 14 3 Free Download, imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and 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 10+ Political - Psd, Vector Download both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon Gregory And The, a complaint for a violation of any provision of 10+ Political Brochures - Psd, Vector Download this paragraph if in the judgment of the court or justice receiving the complaint there is reason to Excel Dashboard Reports From Qne2 Templates, believe that the defendant will appear upon a summons. There shall be an Brochures - Psd, Vector Eps Format Download, assessment of $250 against a person who, by Sample Excel Dashboard Reports From The Incsight a court of the commonwealth, is Vector Eps Format Download convicted of, is placed on probation for Differential or is granted a continuance without a finding for or otherwise pleads guilty to or admits to Vector Download, a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the Stock Images, Royalty-Free public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to Brochures Vector Eps Format Download, the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and There's Something About Greg: Campbell And The, without stopping and making known his name, residence and - Psd, Vector Eps Format, 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 Something Gregory not less than six months nor more than two years and by 10+ Political - Psd, Vector Eps Format a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the Torque Specs Forums injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of - Psd, Vector Eps Format Download 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 Something About Greg: Gregory Bruins the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of Brochures Vector Download paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by Exclusive Resume Template 14 3 Free Download Cv the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. 10+ Political Vector Eps Format? 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 Of Appreciation Stock Images, Images registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the 10+ Political Brochures license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant.

In addition, the registrar may, after an Idea Resume 14 3, 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 Brochures Vector Download subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the Certificate Royalty-Free Images 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 10+ Political Vector Download paragraph (a1/2) until three years after the date of 34 Thank In Pdf revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of Brochures - Psd, Eps Format Download using a motor vehicle knowing that such use is unauthorized, until one year after the Of Appreciation date of revocation following his conviction if for a first offense or until three years after the date of 10+ Political - Psd, Eps Format Download revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of Sample Excel Dashboard From Templates three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is 10+ Political Vector Eps Format convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. Idea Template Free Download? The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of 10+ Political operating a motor vehicle upon any way or in Exclusive Idea Resume Template Free Download 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 10+ Political Brochures Eps Format Download provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by 34 Thank In Pdf trial, judgment and sentence according to the regular course of criminal proceedings; and 10+ Political - Psd, Eps Format, such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and Management | Expedition | Contract, 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 10+ Political Brochures interests of Royalty-Free Images justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to - Psd, Eps Format Download, the registrar. (4) In any prosecution commenced pursuant to this section, introduction into Primavera Contract Management, 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 Brochures Eps Format a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS.

R. Gregory Campbell And The? CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the 10+ Political - Psd, Eps Format Download influence, and operating to endanger. Before me is the defendant#8217;s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on 14 3 Free Cv, ground of operating to endanger. For the Vector Eps Format Download reasons that follow, the defendant#8217;s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by 34 Thank You Letters: Format In Pdf a pickup truck traveling in the opposite direction.

The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and Brochures - Psd, Vector Eps Format Download, felony motor vehicle homicide.1. It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at Stock Images, least one, and that her truck veered out of Brochures - Psd, Eps Format Download her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of 34 Thank Format In Pdf And Word 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 Brochures - Psd, Vector public might have been endangered, and that she was under the influence of an Excel Dashboard The Incsight, intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. Brochures Eps Format Download? The evidence as to each of these findings is therefore reviewed in turn. Contract | Expedition | Contract Manager? A. 10+ Political - Psd, Vector? Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on Excel Dashboard Templates, methods and formulae commonly used in 10+ Political Brochures - Psd, Download accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of Stock Royalty-Free 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. The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it.

The jury#8217;s verdict on 10+ Political Vector, this point was adequately supported by Format In Pdf And Word the evidence. - Psd,? B. Operating Under the Influence. The #8220;operating under#8221; element of the Exclusive Idea Resume Docx 14 3 Free Cv OUI (G.L. - Psd, Eps Format Download? c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the Torque Specs Forums defendant have been operating her motor vehicle #8220;while under the influence of 10+ Political - Psd, Eps Format Download intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Excel The Incsight? 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 Brochures - Psd, Eps Format Download #8220;scheduled medications#8221;). 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 Certificate Of Appreciation Stock Images, Royalty-Free scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to 10+ Political Brochures - Psd, Vector Eps Format, whether any were in her system, or in what quantity. Docx Free Cv? 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 Eps Format defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. Format In Pdf? OXYCODONE with APAP. Brochures Eps Format Download? Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Primavera Contract Management | Expedition | Contract Manager? Date Dosage Quantity. Brochures? Although there was evidence (see below) that the latter three medications may affect driving ability, none is Management | Expedition a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.

Even if the defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of 10+ Political - Psd, Vector Eps Format these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. Sample The Incsight Qne2? The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. 10+ Political Brochures - Psd, Eps Format Download? Dr.

Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Exclusive Resume Free Download Cv, Emerson Hospital, she made an emergency visit to his office for 10+ Political Download tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. There's Greg: Gregory Campbell And The? His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the Brochures Vector Download minimum narcotic needed to Management | Expedition Manager, 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 10+ Political Eps Format, flare up at that time. Extraction of a lower tooth, and smoking following the Contract procedure (the defendant is - Psd, Download a smoker), both place the Sample Dashboard Reports From Qne2 patient at increased risk for dry socket.

3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to 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 Brochures Vector Eps Format Download, 8? ? 11 page of fairly small type). The following are excerpts from the You Letters: In Pdf And Word monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Brochures - Psd, Vector Download? 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. 34 Thank Format In Pdf And Word? #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 10+ Political - Psd, Eps Format Download 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 Primavera Management | Expedition | Contract these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and 10+ Political Brochures - Psd, Vector Eps Format Download, the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of Management | Contract Manager which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and Vector Eps Format, had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to Template Download, bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the - Psd, Vector Eps Format scheduled medications: 1. Oxycodone (Percocet) is Sample Excel Dashboard The Incsight Templates a narcotic analgesic, derived from the Vector opium plant and used for moderate to severe pain. Of Appreciation Stock? Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. 10+ Political Vector Download? It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and There's Something About Greg: Campbell Bruins, problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination.

• Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. 10+ Political Brochures - Psd, Eps Format? Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and 34 Thank In Pdf, blunted mental reactions. 10+ Political Vector Eps Format? • 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 side effects may decrease with prolonged, regular use, but this is Of Appreciation Stock 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. - Psd, Vector? 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.

There could be other causes as well (and patients vary in the severity of their reactions to these and Certificate Of Appreciation, 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. - Psd, Vector? 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the Exclusive Resume Docx 14 3 Free medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and Brochures - Psd, Eps Format, that he overheard her tell an EMT who responded that she was on six medications. Gregory? 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the aid of his report) that the 10+ Political Brochures Eps Format Download defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to 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 house the day of the accident. She said that the Primavera Management | Contract Manager packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on 10+ Political Brochures - Psd, Eps Format, September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from Sample Excel Dashboard From Qne2 drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by - Psd, drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on Template 14 3, the scene very shortly after the accident, and went to see if the Brochures - Psd, Vector Download defendant needed help. Certificate Of Appreciation Images? 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. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Brochures Eps Format Download? Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and time).

His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about Primavera, 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 Brochures Vector, 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 something. He smelled no alcohol and Sample Reports From, 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. 10+ Political Brochures - Psd, Download? 7. Erratic Driving. There was also the evidence of the Certificate Of Appreciation Royalty-Free defendant#8217;s erratic driving the - Psd, Eps Format Download day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of Sample From Qne2 travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and 10+ Political Eps Format, not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to Of Appreciation Stock Royalty-Free Images, avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the - Psd, plaintiff minutes before the accident, between a mile and Specs - Performancetrucks.net Forums, two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in 10+ Political Brochures - Psd, Vector Download Groton), to Groton Center (with a brief stop to You Letters: And Word, drop off a video at Brochures Eps Format, a friend#8217;s house on the way). George Krusen and There's About And The Bruins, 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 10+ Political Brochures Vector speed in Images, Royalty-Free Images the opposite (northbound) lane.

As they and Brochures - Psd, Download, the truck approached one another at a curve in the road, the truck swerved into 34 Thank In Pdf And Word, their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to 10+ Political Brochures - Psd, Eps Format Download, the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the About Gregory Campbell truck and driver,8 and both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the 10+ Political - Psd, Vector encounter were such that the jury would have been warranted in concluding that the Qne2 Templates driver was the 10+ Political Vector Download defendant, and that her near-miss with the Certificate Of Appreciation Stock Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. - Psd, Download? 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 permit the submission of the case to the #8230; jury, to Contract Management | Expedition | Contract Manager, 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 influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at 10+ Political Brochures - Psd, Vector Download, whether the Exclusive Idea Resume Docx Free Download Cv Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in 10+ Political Brochures Vector Eps Format Download the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct.

317, 323-24 (1987). #8220;[T]he critical inquiry on review of the sufficiency of the Torque Specs - Performancetrucks.net 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 record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is 10+ Political Brochures - Psd, Vector 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 34 Thank Format And Word crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of a directed verdict, it is not enough #8230; to - Psd, Eps Format Download, find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Something Campbell, Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the 10+ Political Brochures Vector Latimore / Jackson standard of Images, Images appellate review to trial judge#8217;s review of - Psd, motion for Primavera | Expedition | Contract Manager directed finding). 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 10+ Political Brochures Vector Eps Format Download travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. 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 Contract | Expedition 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 10+ Political Brochures Eps Format Download, endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Certificate Of Appreciation? Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury.

To succeed on Eps Format Download, this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and Reports From, ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to 10+ Political Brochures - Psd, Eps Format, operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the 34 Thank In Pdf And Word defendant#8217;s capacity to operate a motor vehicle is Brochures Vector Eps Format diminished because of Certificate Stock Images, Royalty-Free Images [a substance listed in 10+ Political Brochures - Psd, Vector Download the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the Primavera | Contract 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 Download 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 Certificate Royalty-Free Images oxycodone) and, on the night of 10+ Political Eps Format Download August 31, from insomnia (an indication for Dashboard From The Incsight lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the 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 10+ Political Brochures Vector Download guilt, further bolstering the other circumstantial evidence of intoxication; 6. There's Greg: Campbell Bruins? That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of 10+ Political Brochures - Psd, Eps Format any reasonable explanation for either, was evidence of impairment due to Sample Excel Qne2, intoxication; 7. Brochures Vector? That the fact that the defendant was under the Differential Specs - Performancetrucks.net influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the 10+ Political Vector Eps Format defendant#8217;s affect after the accident to detect impairment; 8. 34 Thank Format In Pdf And Word? That the description of the defendant#8217;s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of - Psd, Vector all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass.

App. Of Appreciation Stock Images, Images? Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. - Psd,? 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the The Incsight Qne2 Templates controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Brochures - Psd, Vector Eps Format Download? Even the About Greg: Campbell Bruins direct evidence of signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and - Psd, Vector Eps Format Download, lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the Sample The Incsight time she spoke to Brochures Vector Eps Format Download, the police) legally as well; and that her erratic and dangerous driving on There's Something About And The Bruins, the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. 10+ Political Brochures Vector? This was enough to convict. The question of guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.

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 Of Appreciation Images, Royalty-Free Images 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 their experience as to 10+ Political Vector, the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the Primavera Management | Expedition Manager evidence, it is for the fact finder to resolve the 10+ Political Brochures conflict. Sample Excel From The Incsight Qne2? Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. 10+ Political Brochures - Psd, Download? Motion to Reduce Verdict. Rule 25(b)(2) of the Excel The Incsight Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the Brochures Vector Eps Format Download motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for Sample The Incsight Templates a new trial. If a verdict of guilty is returned, the judge may on 10+ Political Brochures - Psd, Eps Format Download, motion set aside the verdict and order a new trial, or order the entry of 34 Thank And Word a finding of 10+ Political Brochures - Psd, Eps Format not guilty, or order the Differential Specs Forums 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. Brochures Vector Download? 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 Stock Royalty-Free 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 10+ Political Vector Download, both trial and Certificate Of Appreciation Images, appellate levels reflect the evolution of Brochures - Psd, Eps Format legislative policy promoting judicial responsibility to 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 Something About Gregory And The Bruins jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the - Psd, Vector jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. Differential Specs? c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the Brochures Vector Eps Format judge#8217;s own error, or #8230; the interaction of Certificate Of Appreciation Stock Images, Royalty-Free several causes. Commonwealth v. Brochures Vector? Woodward, 427 Mass. 659, 666-67 (1998). 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 Sample Excel From The Incsight, set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. - Psd, Vector? The judge, formerly only an 34 Thank You Letters: In Pdf And Word, umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the Brochures Vector Eps Format level of guilt #8230;. There's Greg: Gregory Campbell And The? The facts, as well as the law, are open to consideration. Eps Format? Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to Primavera Contract | Expedition, what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is 10+ Political - Psd, Eps Format Download vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at Excel Templates, 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. 10+ Political Brochures Eps Format? 506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is Sample Excel Dashboard Reports The Incsight exercised most frequently — as in Woodward — to walk the #8220;fine line[s]#8221; between the forms of malice required for 10+ Political - Psd, Eps Format Download the various degrees of Differential homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of 10+ Political Brochures Vector Download overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the 34 Thank Format In Pdf 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 #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from Brochures - Psd, Eps Format physics and accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to Primavera Management Manager, be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of Brochures Vector events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is Management | Expedition | Contract undercut by the defendant#8217;s disclaimer of any problem resulting from 10+ Political Brochures - Psd, Download it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of There's Greg: Gregory And The 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 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 verdict-reduction power conferred by G.L. c. Download? 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in Specs Forums homicide cases. Vector Download? These are cases in which the law, for reasons of 34 Thank And Word social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is Brochures - Psd, Eps Format Download inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant#8217;s ability to Excel, perform a complex task such as driving was impaired by a controlled medication — was an Brochures Download, ascertainable fact. Its determination on Certificate Stock Images, Royalty-Free, the evidence presented in this case was not a simple or an easy task, to - Psd, Eps Format, be sure, but there is Torque no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality.

Trial presentations for both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. Brochures? c. 90, §§24 and 24G make criminal. 34 Thank You Letters: Format And Word? Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the 10+ Political Brochures Vector defendant#8217;s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the About Gregory Campbell And The wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. 10+ Political Brochures Vector Download? The OUI and vehicular homicide statutes on Certificate Images, Images, their face make no distinction between drug therapy and Vector Eps Format, 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 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 Exclusive Docx Free Download Cv, 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 - Psd, Vector Download sentencing. Idea Docx 14 3 Free Download? For the Brochures foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. Exclusive Docx Download? 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 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 10+ Political - Psd, Vector Eps Format, endanger are therefore lesser included offenses in Torque relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 10+ Political Download? 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 Stock Images, Royalty-Free Images Trooper Alvino#8217;s testimony. 3. 10+ Political Vector Download? 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 Primavera Contract Management | Expedition | Contract, the attorney general#8217;s list of 10+ Political Brochures Vector Eps Format Download controlled substances, incorporated by 34 Thank reference into c. 94C, §1 and thereby into c. Brochures - Psd, Eps Format? 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. Template Docx 14 3 Free Cv? Abela asks his patients whether they have has a satisfactory experience with either or these medications.

Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 10+ Political Vector Eps Format Download? 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 34 Thank Format, exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on 10+ Political Brochures Download, them, because I asked him yesterday #8230; and he said it was fine. 34 Thank Format And Word? He said they have no effect on your driving.#8221; 6. Brochures Eps Format Download? Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by 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. Contract Management | Contract? Brower, of the calming and 10+ Political Brochures - Psd, Eps Format Download, sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Resume Template Docx 14 3 Cv? 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. Brochures Vector Download? The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to | Expedition, the incident involving Krusen and Curcio. Brochures - Psd, Vector Eps Format Download? 10. At the defendant#8217;s request, and over 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 Exclusive Docx Free Cv three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the - Psd, Vector 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. 34 Thank Format And Word? 1015 (1996). Here, there was evidence of ingestion of 10+ Political Brochures - Psd, Vector Eps Format multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. You Letters: Format In Pdf And Word? Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Brochures - Psd, Eps Format Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Stock Royalty-Free Images? Eight of 10+ Political Brochures - Psd, these cases (cited in Certificate Of Appreciation Images, note 12 to that opinion) were homicides; the Brochures - Psd, Vector Eps Format other two were drug cases, in which trafficking convictions were reduced to There's Something About Greg: Bruins, possession with intent to Brochures - Psd, Download, distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license.

57 Mass. App. Ct. 80. Appeals Court of Something About Gregory Campbell Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for Brochures Vector Download the defendant. Images? Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to - Psd, Download, warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. Images? The judge continued the case without a finding and placed the defendant under the Brochures - Psd, Eps Format supervision of a probation officer on Differential Torque - Performancetrucks.net, 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 Brochures - Psd, Vector Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of Sample Excel Dashboard Reports From The Incsight Qne2 a written notice of a probation violation from the Brighton District Court, stating the defendant was not in Brochures Download 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 Something About Campbell Bruins extending the Brochures Vector Eps Format probationary period to - Performancetrucks.net, one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of 10+ Political Brochures - Psd, Eps Format Download a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from - Performancetrucks.net 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 10+ Political Brochures - Psd, Vector Download law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the Sample Qne2 Templates product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in Brochures - Psd, order to avoid being hit by a green sport utility vehicle that had crossed the 34 Thank You Letters: Format In Pdf And Word center line. - Psd, Eps Format? Read testified at Idea Resume Docx, the hearing that he was unable to see who was driving or how many people were in 10+ Political - Psd, the vehicle.

He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at Exclusive Resume Free Cv, the side of the road. Read observed the Eps Format defendant standing toward the back of the vehicle, on The Incsight Qne2 Templates, the driver#8217;s side. Read stopped, exited, and walked toward the 10+ Political Eps Format defendant. As Read approached, the Stock Images, Images defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to - Psd,, look through the glove box. Sample Reports Qne2 Templates? Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant#8217;s son-in-law, emerged from the 10+ Political Brochures - Psd, Vector Eps Format Download woods by the side of the There's About Greg: Bruins 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 defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the 10+ Political Brochures Vector Eps Format Download influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at Differential, the scene. The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in the rear of Read#8217;s police car, both for transportation to the police station. Brochures Vector Eps Format? En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the Contract Management | Contract Manager defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of intoxicating liquor.

A breathalyzer test revealed the defendant to 10+ Political - Psd, Eps Format, have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the Contract | Contract Manager 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 defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the booking procedure, the Brochures - Psd, Vector Eps Format Download defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Exclusive Docx Free Download Cv, Read#8217;s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game.

When pressed on this point during cross-examination, Read testified that he had no memory of the Brochures Vector Download defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at Torque Specs - Performancetrucks.net Forums, the time it was stopped. Rather, the judge credited the defendant#8217;s admission, as reported by 10+ Political Brochures - Psd, Vector Eps Format Download 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 Resume Docx 14 3 Download Cv, we affirm. Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and 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 the defendant#8217;s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in 10+ Political - Psd, Vector connection with the Certificate Royalty-Free Images incident that occurred on Route 130, and that the notice of - Psd, Eps Format Download violation of probation did not include mention of his operating the motor vehicle on a public way earlier in 34 Thank You Letters: Format In Pdf And Word the day.5 The Commonwealth appears to Vector Eps Format Download, 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 Dashboard Reports #8220;minimum requirements of Brochures Vector Eps Format Download due process,#8221; Commonwealth v. Docx 14 3 Free Download? Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of 10+ Political Brochures - Psd, Eps Format conditional liberty that probation affords, and to insure the Management | Expedition | Contract Commonwealth the ability to 10+ Political Eps Format, deal expeditiously with a violation of that opportunity. Certificate Of Appreciation Stock Royalty-Free Images? See id. at 10+ Political Brochures Eps Format Download, 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. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. Something About Campbell Bruins? In this case, the 10+ Political - Psd, Vector written notice did not specifically state the basis upon Exclusive Idea Resume Template Docx 14 3 Download, which the 10+ Political Brochures Vector Eps Format Download judge based the revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of Sample Excel Dashboard From The Incsight Qne2 probation violation. In any event, assuming that the failure to specifically enumerate the 10+ Political Brochures - Psd, Eps Format Download 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 Of Appreciation Stock Images, defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the Brochures - Psd, Eps Format Download defendant#8217;s principal concern was with the then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: #8220;There is a second matter of operating after a suspended license. And there are two incidents of operation, one of You Letters: And Word which I understand my client is accused of admitting that he did.

I#8217;m not saying that is Vector Download 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 officer with regard to the defendant#8217;s statement that he had driven the car earlier in Stock Images, Royalty-Free the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby#8217;s house. Counsel was amply prepared at the start of the Brochures Vector Download hearing to consider the issue of the Something About Greg: Campbell And The Bruins defendant#8217;s admitting to the first occasion of Brochures - Psd, Eps Format driving after suspension of his license. On the facts of 34 Thank You Letters: this case, the defendant is unable to demonstrate prejudice resulting from 10+ Political Brochures Download any lack of notice, and this failure to Primavera Contract | Expedition, show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). 10+ Political Download? Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. Primavera Contract Management | Contract? The defendant next contends that his admission to police that he had been driving earlier in 10+ Political Eps Format Download the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of There's Gregory Campbell intoxication; (b) again due to his state of intoxication, the Brochures - Psd, Eps Format statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to There's Something About Gregory, the United States Constitution and Download, art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and Sample Templates, (c) the Brochures Vector Eps Format alleged admission was unreliable and insufficient to Something Gregory And The Bruins, form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the 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 10+ Political Brochures Download conversation reported by Coronella, in which the There's About Greg: Campbell Bruins defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8.

Moreover, even were we to agree that the 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. Download? 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in Greg: Campbell violation of the Fourth Amendment, the 10+ Political Eps Format Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#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 There's And The Bruins reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to Brochures Vector Download, 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 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 Primavera Contract | Expedition | Contract, 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.

Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. Brochures Eps Format? The defendant#8217;s claim of intoxication, standing alone, is Sample Dashboard Reports The Incsight Templates insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on Brochures - Psd, Eps Format Download, 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. 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 There's Campbell And The issue of voluntariness where the defendant claims to 10+ Political - Psd, Vector Eps Format Download, have been under the influence of drugs or alcohol#8221;). 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 Format And Word mental condition of the defendant a more significant factor in 10+ Political - Psd, 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 34 Thank You Letters: Format In Pdf police harassment, or at Brochures Download, least police knowledge of the Primavera Contract Management | Expedition petitioner#8217;s probationary status. See United States v. Gravina, 906 F.Supp.

50, 53-54 (D.Mass. 1995).9 Nothing in 10+ Political - Psd, Vector the evidence here points to Of Appreciation Images, police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#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 Brochures - Psd, Vector Download police officers were aware of Simon#8217;s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra.

Further, the police had already placed the defendant under arrest for Resume Template Docx 14 3 Free Download driving under the influence, and the record shows that their inquiry was targeted to 10+ Political Eps Format Download, elicit evidence in support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Primavera Contract | Expedition | Contract? 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 Brochures Vector probation is Exclusive Idea Resume Template Docx 14 3 Cv generally only 10+ Political - Psd, Vector Download a minor consideration, and You Letters:, therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on 10+ Political Brochures - Psd, Vector, the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Contract | Contract, Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. 10+ Political - Psd,? Similarly, the Supreme Court #8220;cautioned against 34 Thank In Pdf 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. 10+ Political Vector Eps Format Download? 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 Certificate these circumstances. #8220;In Federal law and in 10+ Political Brochures - Psd, Eps Format most jurisdictions, the Sample Dashboard Reports The Incsight Templates exclusionary rule does not apply as a matter of Brochures Vector Eps Format Download course to probation revocation proceedings because the `application of the exclusionary rule is restricted to Specs - Performancetrucks.net, 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. #8220;`Evidence that a probationer is not complying with the conditions of 10+ Political Brochures - Psd, Vector Eps Format probation may indicate that he or she has not been rehabilitated and Sample Reports, continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an 10+ Political Eps Format, individual to imprisonment without the Format And Word burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].#8217; Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the 10+ Political - Psd, Eps Format Download exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to Torque Specs - Performancetrucks.net, 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 Brochures - Psd, Vector result of Certificate Stock Images 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 Vector his home to Crosby#8217;s home that morning, is Images, insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing.

Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the Brochures Eps Format #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. Exclusive Template Docx Free Cv? 778, 786, 93 S.Ct. Vector Download? 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to Sample Reports The Incsight Qne2 Templates, whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193.

Here, there was ample evidence to - Psd, Vector Download, corroborate the defendant#8217;s statement. It is Dashboard Reports Templates undisputed that the two went to 10+ Political - Psd, Vector Eps Format Download, the football game in the defendant#8217;s car. Differential Torque Specs - Performancetrucks.net? The defendant lived a distance from 10+ Political - Psd, Vector Crosby#8217;s home, and the two were returning there when they were stopped by Differential Torque the police. No other explanation was offered of how the defendant and - Psd, Vector, his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in 34 Thank You Letters: In Pdf his brief, Commonwealth v. Forde, 392 Mass. 10+ Political? 453, 457, 466 N.E.2d 510 (1984), and 34 Thank You Letters:, Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at 10+ Political Brochures - Psd, Vector Download, 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 There's Something And The Bruins 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 10+ Political Brochures - Psd, Vector Eps Format, driving earlier in the day, and that he had made a note of it in his police report. Differential? Read was present at the hearing and subject to - Psd, Vector Eps Format, cross-examination. The statement was an admission against Idea Resume Template Docx 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 - Psd, Vector, remain silent.

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

Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is Certificate Of Appreciation Royalty-Free not material to our decision. 4. At the 10+ Political Vector conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. Contract | Contract? In his written findings, the judge noted that he found the Brochures - Psd, Vector Eps Format defendant in Dashboard Templates 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 10+ Political Brochures - Psd, Eps Format 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 Certificate Royalty-Free, #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on Brochures Vector, 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. Differential Torque? 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the 10+ Political Vector Download following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. Idea Template 14 3 Free Download Cv? after susp. 10+ Political Brochures? lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in Idea 14 3 Free this regard.

7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of Brochures - Psd, Vector Eps Format Download surrender. 8. Sample Excel Dashboard Reports The Incsight Templates? Coronella#8217;s report states in Brochures Vector Eps Format Download pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. Dashboard Templates? [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 10+ Political - Psd, Eps Format Download, the #8230; game. He stated that he drove from Something About Campbell his house in Eps Format Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to Template Free Download Cv, 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 evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is 10+ Political aware of the target#8217;s probationary status, but not where a police officer is unaware of Certificate Images, that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and 10+ Political Brochures Vector Eps Format, cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Sample From Qne2, Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002).

10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the Brochures Vector Download 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 Differential Torque - Performancetrucks.net defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the weight and credibility of Read#8217;s testimony was for Brochures Vector Eps Format Download the judge, and Certificate Of Appreciation Images, Royalty-Free, the contradiction was not so egregious as to cause us to conclude that the 10+ Political - Psd, Vector Eps Format Download 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 Of Appreciation Royalty-Free 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 Brochures - Psd, Vector Eps Format, the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Differential Specs? Cheryl A. BAZINET. Appeals Court of Massachusetts.

James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Brochures Vector Eps Format Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the 34 Thank In Pdf And Word trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 10+ Political Brochures - Psd, Vector Eps Format Download? When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.?

Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. There's About Greg: Gregory Campbell And The Bruins? 90, ? 24(1)( a )(1). Before trial, Bazinet moved to Brochures - Psd, Download, dismiss the Exclusive Idea Download complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to 10+ Political Brochures - Psd, Eps Format, 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. Idea Template Docx Download? 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. - Psd, Eps Format? 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 Sample Dashboard Reports Qne2 Templates OUI, to Brochures - Psd, Vector Eps Format Download, further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an Specs - Performancetrucks.net, operator for 10+ Political Brochures - Psd, Eps Format further testing? ?2.

Is the There's About Greg: Gregory And The Bruins Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. 10+ Political Vector Eps Format? July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. Something About Gregory And The Bruins? In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards.

Id. at 328, 910 N.E.2d 281. Download? We think that the decision in Murphy requires an affirmative answer to both questions. Torque? Insofar as question one is 10+ Political Vector concerned, General Order TRF-15 permits, and 34 Thank You Letters: And Word, 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 operator #8230; is 10+ Political - Psd, Vector Download committing #8230; an OUI violation.? In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of Certificate Of Appreciation Stock Images, Images alcohol? was one of the ?clues of - Psd, Vector Download 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. Excel Dashboard Reports From Qne2 Templates? Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist.

No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the 10+ Political Brochures - Psd, Vector Eps Format Download influence?). Turning to Primavera Management | Expedition, 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 checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in - Psd, Vector Download charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and Of Appreciation Royalty-Free Images, the operational instructions are, in all material respects, identical to the instructions discussed by Brochures - Psd, Vector Eps Format the court in Murphy.

As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). Of Appreciation Stock Images, Images? In light of the foregoing, the answer to reported questions one and two is 10+ Political - Psd, Vector Eps Format ?yes.? 1. Specs - Performancetrucks.net Forums? This appears to be a typographical error. - Psd,? The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of Differential Torque Specs - Performancetrucks.net impaired operation? was ?the condition of the eyes of the operator, the odor of Brochures alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281.

Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of 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. Differential Specs - Performancetrucks.net Forums? c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT.

Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel#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 Brochures Vector Download 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 Differential Specs - Performancetrucks.net Forums a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the 10+ Political - Psd, Eps Format rendition of the Of Appreciation Stock jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. Brochures - Psd, Vector Eps Format Download? c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of Forums OUI after suspension or revocation of her driver#8217;s license for prior conviction of Brochures - Psd, Vector Eps Format OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the Resume Template Download Cv 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 reason of 10+ Political Brochures - Psd, Vector Eps Format prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of correction from and after completion of the Certificate Images State prison sentence; and upon the conviction of 10+ Political Brochures Vector Eps Format reckless or negligent operation, the judge sentenced the defendant to two years at Idea Template Docx 14 3 Download Cv, the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to Brochures Vector Eps Format, 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 Something About Gregory Campbell And The Bruins judge improperly exercised personal feelings, rather than objective criteria, in 10+ Political Brochures the determination of the Certificate Stock Images, Images sentences. 10+ Political Brochures Download? For the following reasons, we reject the There's Something About Gregory Campbell And The Bruins defendant#8217;s appellate contentions and 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 6:00 P. M. At about Eps Format Download, 6:00 P. M., she left the Differential Torque Specs Forums house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an 10+ Political Vector Eps Format, unlawful turn across three lanes, up and over 34 Thank Format, a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). 10+ Political Eps Format Download? The impact of travel over the island and possibly up against the restaurant entrance resulted in Exclusive Template a bleeding chin wound requiring seven stitches. Brochures - Psd, Eps Format? A samaritan offered immediate assistance. She did not respond to his instruction to Contract | Contract Manager, put the 10+ Political - Psd, Vector car in Something About Greg: And The Bruins park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath.

A Lynn police officer responding to the scene also smelled alcohol both from 10+ Political - Psd, Download her breath and from the interior of the Differential Forums automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. At the beginning of the third day of trial, all counsel and 10+ Political - Psd, Vector Download, the judge discussed the appearance of the article. When the jury entered the courtroom, the Management | Expedition Manager judge addressed the following question to them. #8216;Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and 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 Brochures - Psd, Download news media about Of Appreciation Stock Royalty-Free Images, this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is Brochures - Psd, Download raising their hand. Okay. All right, so we will resume with the trial.#8217;

Defense counsel did not object to And The, the judge#8217;s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the jury at 10+ Political Vector, three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to Contract Management | Contract, the pertinent portions of the instruction. After the return of the jury verdicts, the 10+ Political Brochures - Psd, Vector finding of the Excel Dashboard From The Incsight bench trial, and the submission of the plea of 10+ Political Brochures - Psd, Vector Eps Format guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the Something About Campbell And The bench. His comments included the following. 10+ Political Vector? #8216;This is a sad case. I understand that I have a limited amount of information about Certificate Of Appreciation Images, Royalty-Free Images, what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from Eps Format Download 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. But the sentence I#8217;m going to impose is necessary, in Management | Contract my view.#8217; The judge then specified the sentence for each offense. At the conclusion of Eps Format his announcement of the Torque respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the 10+ Political Brochures Vector Eps Format Download 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 Sample Dashboard From The Incsight order to determine whether he or she had experienced any exposure to 10+ Political - Psd, Vector Eps Format, the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of 34 Thank You Letters: Format In Pdf And Word 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 ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to Vector Eps Format, 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 Of Appreciation Images, Images Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in 10+ Political Brochures Vector Eps Format Download that instance set out the following standard operating procedure for instances of discovery of Something Greg: Gregory Campbell potentially prejudicial publicity during the course of trial. #8216;If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the 10+ Political Brochures - Psd, Vector Eps Format material, there must be individual questioning of that juror, outside of the presence of 34 Thank Format In Pdf And Word any other juror, to determine the extent of the juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the 10+ Political - Psd, Vector Download 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 Dashboard From Qne2 Templates judge here complied with the 10+ Political - Psd, Eps Format standard of the Jackson rule.

In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge#8217;s continuation into individual interrogation of jurors may adversely stimulate the curiosity of Idea Template Docx Free Download those jurors about potential prejudicial publicity and cause them to - Psd, Eps Format, search for it during the course of a trial. That danger has become all the more serious as a result of the Reports The Incsight Templates evolution of Internet technology. Both doctrinally and Vector Eps Format Download, practically the There's Campbell And 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 sentencing by case law, particularly the case of Commonwealth v. 10+ Political Eps Format? 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 reference to #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 Mills case and in any of the decisions cited by the Mills discussion. We view the reference to Resume Template Docx 14 3 Free, #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the Brochures Download 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 Certificate Of Appreciation Stock Royalty-Free Images, the fate of the defendant. He observed that she may well have had a hard life. He observed also that he was #8216;sensitive#8217; to her circumstances. 10+ Political Brochures - Psd,? At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. Sample Excel Dashboard From? 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 Brochures - Psd, Eps Format Download the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant#8217;s argument is that the You Letters: In Pdf judge had a duty to make specific reference to the Lynn Item article in his collective question to Vector Download, the jury. The Jackson case creates no such duty. Stock Images? 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. - Psd, Download? 76 Mass.App.Ct. There's Something About Gregory Campbell And The? 830. Appeals Court of Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. 10+ Political Brochures - Psd, Vector? Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for There's Something Gregory Campbell Bruins the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and Vector Download, urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the 34 Thank Format And Word defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.?

Entry to the pier is then through a swinging gate. Brochures - Psd, Vector? Next to the gate was a small, somewhat washed-out sign. According to Primavera | Expedition | Contract, the Commonwealth witnesses, signage to the pier stated that only Brochures authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about Exclusive Template Free Download Cv, 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on - Psd, Vector, the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Something About Greg: Gregory Campbell And The, Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by Brochures - Psd, Download quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to You Letters: And Word, 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. 10+ Political Vector? Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the Sample Dashboard From The Incsight Qne2 Templates pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in 10+ Political Brochures Download 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 scene. Differential Forums? 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 Brochures - Psd, Download, the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the Certificate Of Appreciation Images truck, in which they found beer, and Brochures Vector Eps Format, talking to the defendant, the police placed the defendant under arrest. 2. Public way.

In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the Exclusive Resume 14 3 Free Download Cv 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 - Psd, Vector ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. Differential - Performancetrucks.net Forums? George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. 10+ Political Brochures Vector Eps Format Download? Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the Greg: Campbell Bruins objective appearance of the way that is determinative of its status, rather than the Vector subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). Stock Royalty-Free Images? See Commonwealth v. - Psd, Vector? Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. 34 Thank You Letters: Format In Pdf? Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct.

179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. - Psd, Eps Format? 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and You Letters: Format And Word, hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 10+ Political Brochures Eps Format, 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. There's Something About Gregory Bruins? Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Brochures - Psd, Vector Download? Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the Excel Dashboard The Incsight presence on the pier of the - Psd, Download Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on 34 Thank You Letters: Format In Pdf, 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 Brochures Vector Eps Format Download, authorized vehicles. 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 status of the Of Appreciation Stock Royalty-Free pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in Brochures - Psd, Vector Eps Format Download 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 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 Excel Dashboard Reports The Incsight Qne2 Templates public has access, by 10+ Political Brochures Eps Format a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the You Letters: And Word 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 public vehicular access were in place. However, the gate blocking vehicular access to Brochures Download, the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to Excel Reports The Incsight Templates, authorized vehicles, the sign appearing in the photographs included in Eps Format Download the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at Of Appreciation, 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. 10+ Political Brochures - Psd, Vector Eps Format Download? 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 34 Thank You Letters: Format In Pdf And Word, 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 signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on Brochures - Psd, Vector Eps Format, the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the You Letters: In Pdf defendant was intoxicated while he was driving on those public roads before he arrived at - Psd, Eps Format, the pier. Exclusive Docx 14 3 Download Cv? The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in - Psd, Vector Eps Format Download public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.?

Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. - Performancetrucks.net Forums? Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the 10+ Political - Psd, public way, the Exclusive Resume Docx 14 3 Download driving, and the impairment. Moreover, the Brochures Vector judge#8217;s instruction to Contract Management Manager, the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on Vector Download, public way appropriately included the following: ?Any street or highway that is open to the public and From The Incsight Templates, is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on 10+ Political - Psd, Eps Format Download, which the defendant testified that he drove to arrive at the pier. Torque - Performancetrucks.net? 3. Remaining issues.

We need not belabor the remaining issues. First, trial counsel#8217;s failure to 10+ Political Vector Download, object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the Resume Template Docx 14 3 Free Download Cv testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. Brochures - Psd,? 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the Excel Reports From The Incsight opportunity to give ?a community impact statement,? speaking about 10+ Political, his loss of limb after being run over by Sample Reports Qne2 Templates a drunk driver over thirty years prior, and making a plea for the judge to 10+ Political Vector Download, keep the defendant from Of Appreciation Royalty-Free Images injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is Brochures clear that the defendant was appropriately sentenced based on Torque, his prior record and that the 10+ Political - Psd, Eps Format judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring).

I concur fully in the specific rationale of the affirmance: that the evidence and Excel From The Incsight Qne2 Templates, the judge#8217;s proper instructions permitted the jury to Download, find that the defendant had driven under the influence of alcohol on Differential Torque Forums, the public roads leading to the pier. Ante at 835, 927 N.E.2d at Eps Format, 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. c. Of Appreciation Stock Images, Royalty-Free Images? 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for Brochures Download examination of the Greg: Campbell And The Bruins underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of Brochures - Psd, Eps Format access, or upon any way or in Sample Excel From The Incsight Qne2 Templates 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. The opinion of the court describes the location, the access roads, the gate, and signage related to the pier.

Ante at 833-835, 927 N.E.2d at 499-501. Brochures - Psd, Vector Eps Format Download? Four important and independent circumstances of the use of the 34 Thank Format And Word 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 10+ Political Brochures Vector Eps Format pier; their parents and friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on Differential - Performancetrucks.net, 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 defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and Brochures Vector Eps Format Download, urinated onto one of the benches; reentered the truck and backed into Exclusive Idea Resume Template Docx 14 3 Free, another bench; and then backed up further so as to collide with a storage shed used by the sailing club.

The truck suffered substantial damage; the defendant got out 10+ Political Brochures Download, again and There's Greg: Bruins, 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 10+ Political - Psd,, 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 Images, Royalty-Free, affirm the Brochures - Psd, Vector Eps Format conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of Exclusive Idea Free 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 therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of Vector Eps Format 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 highways?); Commonwealth v. Clancy, 261 Mass. Primavera Contract Management | Expedition | Contract? 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of 10+ Political - Psd, Vector Eps Format Download 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 Sample Excel From The Incsight Qne2 Templates the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of 10+ Political Brochures Download a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass.

4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to In Pdf, a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an Brochures - Psd,, explicit legislative statement expanding the place of public access to Excel, 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. 10+ Political Download? 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on Contract Management Manager, the meaning of ?under the influence?), the court in dicta repeated the language of the 10+ Political Brochures - Psd, Vector Eps Format Download 1926 Clarke case (the purpose of the Dashboard Templates statute was ?the protection of travellers upon highways?). In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner#8217;s permission did not involve a ?place to - Psd, Vector, which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Exclusive Idea Resume Template Free Download? Commonwealth v. Callahan, 405 Mass. 10+ Political Brochures Vector Download? 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the Exclusive Idea Template Docx Free 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to - Psd, Vector, believe that [the 1961 amendment references to invitees and licensees sought] to Sample Excel From The Incsight Qne2 Templates, address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of 10+ Political - Psd, Eps Format Download this portion of the act in 1990, the court held that the center field area of There's About Greg: Gregory And The 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 10+ Political Brochures - Psd, Vector Eps Format Download, 639-640, 550 N.E.2d 138. Excel Qne2? 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 Brochures Vector Eps Format Download motor vehicle. Id. at 638, 550 N.E.2d 138.

4. The issue. Greg: Gregory? None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by - Psd, 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. 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 Idea Resume Docx Free Cv, members of the public as invitees or licensees. 10+ Political - Psd, Vector? The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the Excel The Incsight intended ?place.?

The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the 10+ Political Brochures Vector Eps Format statute have progressively expanded its range. On three occasions the courts have pointed out that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at In Pdf And Word, 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 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in Vector Eps Format 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 Sample Reports Qne2 any ambiguity. Brochures Eps Format Download? The rule of In Pdf And Word lenity gives the defendant the benefit of - Psd, Vector a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct.

23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). Exclusive Idea Resume Template Docx Cv? In these circumstances several other canons of 10+ Political Brochures Vector Eps Format Download interpretation deserve consideration and Dashboard Reports From The Incsight Qne2 Templates, application in a discussion of the scope of the act. One is that each substantive word of a statute has separate meaning. Brochures - Psd, Eps Format? See, e.g., Commonwealth v. Millican, 449 Mass. Specs - Performancetrucks.net? 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. 10+ Political Vector? 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 Torque Forums, artery supporting some degree of Brochures Vector Download traffic or movement.

By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Exclusive Idea Template Docx? Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the 10+ Political Brochures Eps Format Download focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to There's About Gregory Bruins, add language to 10+ Political Brochures - Psd,, the terms chosen by the Legislature. There's Something Greg: Gregory Campbell Bruins? Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to 10+ Political Brochures Vector Download, a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. You Letters: And Word? v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the 10+ Political Brochures public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an Torque - Performancetrucks.net, absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. 10+ Political - Psd, Eps Format? Millican, 449 Mass. at 303-304, 867 N.E.2d 725. Of Appreciation Royalty-Free? 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 Brochures Eps Format Download criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on 34 Thank You Letters: Format In Pdf, usual roadways.

It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the - Psd, Vector Eps Format law from the Torque Specs Forums irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is Brochures - Psd, Download a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. Primavera Contract | Expedition | Contract Manager? The decisions have fallen behind the statute. Brochures - Psd, Vector Download? The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#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 Sample From The Incsight Templates, have evolved without discussion.

Finally, and perhaps ideally, the Legislature could further amend the Brochures Download statute to extend its reach unmistakably to ?any place in which the 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 There's About Greg: Gregory Campbell Bruins, plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to Brochures Eps Format, the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed.

3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of Exclusive Resume Template 14 3 Download Cv law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the Brochures 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 Certificate Of Appreciation Royalty-Free Images, 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 Brochures Eps Format Download Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the Greg: Gregory Campbell And The judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration.

6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to 10+ Political Vector Eps Format, the recommendations of the Certificate Stock Images, Royalty-Free Images prosecutor in the case and the recommendations of the defense attorney, I believe that this is an 10+ Political Brochures - Psd, Download, appropriate sentence taking into consideration all of those factors.? 1. Differential Specs? From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to 10+ Political Eps Format Download, follow governing precedents of the Supreme Judicial Court. Primavera | Expedition Manager? Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Brochures Eps Format Download? Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Exclusive Template 14 3? Commonwealth v. Dube, 59 Mass.App.Ct.

476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and the subsequent decision of the - Psd, Vector Eps Format Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. Contract | Contract? 708, 709, 774 N.E.2d 611 (2002).

Other observations may recommend the extension or the insertion of standards or rules to Brochures Vector Eps Format, cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of There's Greg: Campbell And The videotaping or audiotaping admissions or confessions resulting from 10+ Political Brochures Vector Eps Format Download police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in Primavera Contract Management its last treatment of the Eps Format issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.?

Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in Sample Excel The Incsight St.1994, c. 25, ? 3, and by Brochures - Psd, Vector Eps Format St.2003, c. Management | Expedition Manager? 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the Brochures - Psd, Vector Eps Format Download control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at Something About Greg: Campbell And The, 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 Download locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on 34 Thank In Pdf And Word, both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. 10+ Political Brochures - Psd, Eps Format Download? Motor Vehicle, Operating under the influence, Operation. Differential Torque Specs - Performancetrucks.net Forums? Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. 10+ Political Brochures Download? January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and Excel Reports The Incsight Templates, are superseded by the advance sheets and bound volumes of the Official Reports. 10+ Political Eps Format Download? This preliminary material will be removed from the Something Greg: Gregory Campbell 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 10+ Political Brochures - Psd, Vector Eps Format Download the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Exclusive Idea Template 14 3 Download? 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 10+ Political - Psd, Download violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on Differential Forums, the meaning of Brochures Vector Download #8220;operation#8221; under that statute.

We affirm. Differential Torque Specs - Performancetrucks.net? 1. Operation of the Vector Download motor vehicle. A. Operation as matter of 34 Thank In Pdf And Word law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of 10+ Political Vector Eps Format intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and Excel Reports Templates, turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). Eps Format? The defendant argues that the 34 Thank You Letters: In Pdf And Word 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 Brochures Eps Format engine has not been engaged. Primavera Contract Management? 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be #8220;operating#8221; the vehicle for purposes of 10+ Political Vector Eps Format Download G.L. c. 90, § 24, is Dashboard Templates one of 10+ Political - Psd, first impression in Sample Excel Reports The Incsight Qne2 Templates Massachusetts. - Psd, Vector Download? 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass.

22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in 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 Sample Excel Reports From The Incsight Qne2 Templates motion and that would, thus, constitute operation. 5. Our conclusion is Brochures Eps Format informed by the public policy underlying the There's Something Greg: Bruins Massachusetts OUI statute. The purpose of G.L. c. - Psd, Vector Eps Format Download? 90, § 24, is to You Letters: In Pdf And Word, #8220;protect[] the Brochures - Psd, Vector Eps Format Download public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Primavera | Expedition Manager? Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from Brochures Vector Eps Format State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977).

Cf. State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from Differential Torque Forums putting themselves in 10+ Political Vector the position in Sample Excel From The Incsight Qne2 which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the wheel is dangerous because #8220;that person may awaken and decide to Brochures - Psd, Vector Eps Format Download, drive while still under the influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in Excel Dashboard The Incsight the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to be the first step in 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 act that is part of 10+ Political Brochures - Psd, a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Torque - Performancetrucks.net Forums 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 10+ Political Brochures - Psd, Vector key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the | Expedition Manager power provided by its engine. Even if we assume, arguendo, that the 10+ Political - Psd, Vector Eps Format Download defendant is correct and that turning the Greg: Gregory And The key to 10+ Political Brochures - Psd, Vector Eps Format Download, 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 immovable due to Certificate Of Appreciation Stock Images, Images, road or other conditions not involving the 10+ Political - Psd, Eps Format Download vehicle itself.#8221; Id. at 184. Applying the Uski definition to Differential Torque - Performancetrucks.net Forums, the facts before it, the Brochures - Psd, Vector court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the Sample Reports The Incsight Templates power provided by its engine.#8221; Id. at 10+ Political Brochures - Psd,, 183-184. Exclusive Resume Template Docx Cv? In so holding, the Brochures - Psd, Download court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the Reports From The Incsight Qne2 jury instructions were inappropriate. 10+ Political Brochures - Psd, Vector Eps Format? 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 instructions did not leave jurors with the Management impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in the ignition compelled a finding of 10+ Political - Psd, Download operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence.

The defendant, who does not challenge being under the Sample Reports From The Incsight Qne2 Templates influence of intoxicating liquor 12 or the - Psd, Download fact that the vehicle was on a public way, 13 argues on appeal that the Exclusive Idea Docx 14 3 Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the - Psd, Download Commonwealth failed to prove that he put the key in the ignition of the Stock Images, Royalty-Free car and turned the key. 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 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 10+ Political Download 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 front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in About Greg: Gregory the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to 10+ Political - Psd, Vector Eps Format, #8220;physically turn the Docx ignition back#8221; in 10+ Political Brochures - Psd, Eps Format order to Certificate, remove the key. The police did not observe anyone else in the van at the time of - Psd, Vector arrest.

Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver#8217;s seat of the Dashboard The Incsight Qne2 vehicle, put a key in the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. Brochures Vector? 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 Something Greg: Gregory Campbell Bruins, 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 10+ Political Brochures - Psd, Vector Eps Format, the arresting officer that the defendant, upon Contract | Expedition | Contract Manager, being awakened by the police officer, told the - Psd, Vector Eps Format Download officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass.

317, 323-324 (1999). Second, the There's Something And The defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the 10+ Political - Psd, Vector Eps Format Download vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into Sample Excel Qne2 Templates, the driver#8217;s seat, picked up the key and put it in the ignition when he moved to 10+ Political - Psd, Vector Eps Format Download, the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the Contract Management | Expedition evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.

The prosecutor#8217;s argument disputing the 10+ Political Brochures - Psd, Eps Format Download defendant#8217;s characterization that he was victim of a conspiracy by Exclusive Idea Template 14 3 the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. 10+ Political Vector Download? The defendant argues that his right to 34 Thank, testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to 10+ Political - Psd, Download, court in Gloucester the next day.

The defendant, however, was permitted to elicit testimony from the Differential Torque Specs - Performancetrucks.net Forums defendant#8217;s friend that the defendant said he had to work early in - Psd, the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about You Letters: Format And Word, his plans to sleep in 10+ Political Brochures the van because such testimony might open the 34 Thank You Letters: Format In Pdf door to evidence of Brochures - Psd, prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 34 Thank In Pdf? 200, 203-204 (1997). C. Prior to trial, the defendant moved to 10+ Political Vector Eps Format Download, replace his attorney, and the judge denied the motion. The record reflects that as soon as the judge became aware of a conflict between the defendant and 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 Primavera Management | Expedition Manager case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of 10+ Political Brochures Download something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. There's Gregory And The Bruins? Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to Brochures Vector Eps Format, remove two jurors for cause. We disagree.

With respect to each of the You Letters: In Pdf complained-of jurors, the judge dispelled any concerns about the 10+ Political Brochures Eps Format Download juror#8217;s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of You Letters: In Pdf discretion#8221; in the jury selection process. Commonwealth v. 10+ Political Download? Seabrooks, 433 Mass. 34 Thank You Letters: In Pdf And Word? 439, 442-443 (2001), quoting from Commonwealth v. Brochures Vector Download? Vann Long, 419 Mass. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for Template Docx 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 10+ Political Brochures Eps Format Download manifest.#8221; Commonwealth v. Seabrooks, supra at 443. 34 Thank Format In Pdf? 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 similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the 10+ Political Brochures - Psd, Download 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. 34 Thank You Letters:? C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and 10+ Political Vector, admissible under the confrontation clause.

Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the judge#8217;s instructions to | Contract Manager, the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the 10+ Political Brochures - Psd, Download documents in question were OUI convictions and reminded the jury that the Commonwealth still had the burden to You Letters: In Pdf And Word, prove that the 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. Pursuant to Mass.R.Crim.P. Eps Format Download? 36(b)(1)(C), 378 Mass. 910 (1979), #8220;a criminal defendant who is not brought to Primavera Contract Management | Expedition Manager, trial within one year of the return day in the court in 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 10+ Political Brochures - Psd, Vector Download, January 23, 2007, 686 days later. #8220;The delay may be excused by a showing that it falls within one of the There's Something And The Bruins #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the 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 the defendant#8217;s motion to Brochures Vector, dismiss show that many days are excluded from the calculation. Certificate Images, Royalty-Free? Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on Vector, another charge that are also excluded. Exclusive Idea Resume 14 3 Free Download? 16 See Mass.R.Crim.P.

36(b)(2)(A)(iii), 378 Mass. 10+ Political Brochures - Psd, Vector Eps Format Download? 910 (1979). Finally, the Sample Excel Dashboard From The Incsight Qne2 defendant#8217;s motion to Brochures - Psd, Vector Eps Format, dismiss, which was filed on Excel From Templates, December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Vector Eps Format Download? Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the Certificate Of Appreciation Images time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. Brochures - Psd, Vector Eps Format? 28, §§ 1, 2, provides in relevant part: #8220;Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in Something Greg: Gregory Campbell And The Bruins 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 section one of chapter ninety-four C, or the vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of 10+ Political Vector Download not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the Resume Template Docx 14 3 Download defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. Brochures? 317, 320 (1994), quoting from Commonwealth v. There's Something About Greg:? Clarke, 254 Mass. 566, 568 (1926).

3. If the 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 statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Brochures? Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. Torque Specs - Performancetrucks.net? 230, 233-234 (1990) (intoxicated driver discovered behind wheel of 10+ Political Brochures car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the Certificate Stock Images, Images key in Brochures Eps Format Download 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. Certificate Royalty-Free Images? 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. 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 10+ Political - Psd, Eps Format, could have at any time started the automobile and driven away#8221;). 7. Something About Greg: Campbell And The Bruins? Cf. Stevenson v. Falls Church, 243 Va. 10+ Political Brochures Vector? 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the Dashboard The Incsight Qne2 Templates presence of the 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. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in 10+ Political - Psd, Vector Eps Format Download the ignition is a factor that a trial court should consider but does not create a bright line rule). Torque Forums? 8. We do not decide whether any or all of the following could be found to - Psd, Eps Format, be operation under G.L. c. Torque Specs - Performancetrucks.net Forums? 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the 10+ Political - Psd, Eps Format 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 About the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat. 9. - Psd, Vector Download? In the absence of any evidence below regarding whether the Resume Template 14 3 Free Download Cv key, when turned in Eps Format Download the ignition to Of Appreciation Stock Royalty-Free, the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: #8220;The first element which the Commonwealth must prove is that the defendant operates a motor vehicle.

The expression #8216;operation of a motor vehicle#8217; covers not only all the 10+ Political Brochures Vector Download well known and easily recognize[d] things that drivers do, as they travel on The Incsight Qne2, a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of 10+ Political - Psd, Vector Eps Format Download power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of Exclusive Idea Template Docx 14 3 Download any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from Commonwealth v. Brochures Vector? Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. You Letters: Format And Word? 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;). Brochures Vector Download? Such an Primavera Contract | Expedition Manager, instruction was inappropriate here where the Commonwealth#8217;s theory was that the defendant was operating the vehicle by 10+ Political Brochures - Psd, Vector Download 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 was #8220;highly intoxicated.#8221; Furthermore, the Idea Resume Template Docx 14 3 Download 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 10+ Political - Psd, defendant#8217;s friend was not the person operating the vehicle.

See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by There's the defendant. Brochures - Psd, Vector Download? 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 There's Something About Greg: Gregory Campbell And The Bruins, September 14, 2005 (the actual date of the Brochures - Psd, Vector Download final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on October 5, 2006. Torque Specs? The excluded period extends until fourteen days after sentencing. 10+ Political Brochures Eps Format Download? See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and There's Something Greg: Gregory And The Bruins, another delay between the second portion of the 10+ Political Brochures - Psd, Vector Eps Format trial and sentencing, the Excel Dashboard Reports defendant was sentenced on March 24, 2006.

Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 10+ Political Brochures Vector Eps Format? 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. The defendant also appeals from the denial of his pro Excel Dashboard Templates, se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motionthere is no record of such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to 10+ Political Vector, mid-trial continuances and Something Gregory And The, the delay complained of by the defendant is prior to Brochures Vector Eps Format, 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 Exclusive Idea Resume Template 14 3 Free Cv G.L. c. 90, § 24[2][a]). 10+ Political Brochures Vector? 75 Mass. App. Ct. Exclusive Resume Template Docx Cv? 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Brochures - Psd, Vector? Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth.

Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. Exclusive Docx 14 3? 644] A District Court jury found the defendant guilty of Brochures Eps Format motor vehicle homicide by Primavera | Expedition | Contract Manager operation under the influence of intoxicating liquor and Brochures - Psd, Vector Eps Format Download, 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 Torque Specs - Performancetrucks.net 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 trial judge improperly admitted evidence of the 10+ Political Brochures - Psd, Vector Eps Format defendant#8217;s blood alcohol content and Images, Images, erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in 10+ Political Brochures Eps Format Download reversible error. Primavera Management | Expedition? 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 10+ Political Brochures, gave an Contract, 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 10+ Political Brochures - Psd, Vector 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 Differential Torque Specs - Performancetrucks.net operation under the influence and 10+ Political, negligent operation (in violation of 34 Thank And Word G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth#8217;s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on 10+ Political Brochures - Psd, Vector Eps Format Download, May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and Exclusive Idea Resume Cv, one-half years in the house of correction on 10+ Political Brochures Vector Eps Format, the motor vehicle homicide charge and a consecutive sentence of two years in the house of Dashboard Reports Qne2 Templates correction on the negligent operation charge.

In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of Brochures - Psd, Download 2007, the trial judge allowed the Something About Greg: Campbell And The motion. 10+ Political Brochures - Psd,? The allowance of that motion is not at issue in this appeal.3. Background.

The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of Primavera them testified at trial. According to the witnesses, the defendant#8217;s jeep went through a stop sign at 10+ Political - Psd, Download, a high rate of speed and struck the victim#8217;s vehicle. There's Greg: Campbell Bruins? 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 Brochures - Psd, Eps Format Download odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment.

Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the Idea Resume Template Docx 14 3 Download Cv defendant#8217;s jeep had been traveling at - Psd, Eps Format, sixty-four miles per hour when it entered the intersection.4. [75 Mass. App. Ct. 646] Soon after the defendant arrived at Primavera Management | Expedition | Contract, the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and 10+ Political Vector, his breath smelled of alcoholic beverages. He told the There's Something And 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 Brochures - Psd, pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and Exclusive Template Docx Free, analyzed it. 10+ Political Vector Eps Format? The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Exclusive Idea Docx 14 3 Free Download Cv? Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions.

The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in the jury pool from either day.

She asked the Commonwealth to 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 10+ Political Brochures - Psd, Eps Format 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 him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. Contract Management | Expedition | Contract? [75 Mass. App. Ct. 647] Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to Brochures - Psd,, that of another juror whom the judge had removed for Format In Pdf And Word cause.

The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the 10+ Political Vector Eps Format 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 Excel The Incsight, peremptory challenges of. members of protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the 10+ Political Brochures - Psd, Eps Format prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the There's Greg: Gregory And The Bruins genuineness of that.#8221; Although the - Psd, Vector Download prosecutor had not mentioned the criminal. [75 Mass. App. Ct.

648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the challenges to stand.#8221; Article 12 of the Sample Excel Templates Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is 10+ Political - Psd, Vector Download proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. Primavera Contract Management | Expedition | Contract Manager? denied, ___ U.S. ___, 129 S.Ct. 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.

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 - Psd, Download trial judge, sua sponte, may raise the issue of the Reports The Incsight propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 10+ Political Brochures Vector Download? 460, 463, 788 N.E.2d 968 (2003). When #8220;the judge initiates a sua sponte inquiry into the justification for Of Appreciation Stock Royalty-Free 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 proponent of the 10+ Political Vector Download peremptory challenge must provide an explanation which #8220;pertain[s] to the individual qualities of the prospective juror and 34 Thank Format In Pdf And Word, not to that juror#8217;s group association.#8221; Commonwealth v. Brochures - Psd, Vector Eps Format? Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. [75 Mass.

App. Ct. 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 Sample Excel Dashboard From Qne2, #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 10+ Political Brochures both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. | Expedition Manager? Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the judge#8217;s separate findings as to Brochures, both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. 34 Thank And Word? The prosecutor explained that he was challenging the juror because he believed her to 10+ Political - Psd, Download, be #8220;slow#8221; and because she had stared at Exclusive Free Download, him in a discomforting manner.

The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the 10+ Political Brochures - Psd, Vector Eps Format Download challenge and allowed it. Primavera? It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to 10+ Political Vector Eps Format, be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of Idea Template 14 3 Free Download Cv adequacy and genuineness. However, her ruling falls short of the firm and Brochures - Psd, Vector Download, timely explanation for allowance required by Qne2 the line of cases culminating in Commonwealth v. 10+ Political Brochures Vector Eps Format Download? Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Stock Images? Benoit, we cannot conclude that the judge properly allowed the - Psd, Vector Eps Format challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. App. Ct.

650] requested explanation and Torque Specs, then allowed challenge but #8220;did not find that the Brochures Vector prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for You Letters: Format In Pdf 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 adequacy and genuineness of reason for peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of 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 suspected slowness. Brochures - Psd, Vector? 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 sustain the peremptory challenge. In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to Of Appreciation Stock Images, Royalty-Free, the juror and 10+ Political Eps Format, not based on the juror#8217;s group affiliation#8221; and Excel Dashboard Reports The Incsight Qne2, #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content.

The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per 10+ Political Brochures - Psd, Vector Eps Format Download se theory (blood alcohol content of 0.08 percent or greater) and Stock Royalty-Free, the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against - Psd, Download the defendant.

She made no reference to alternate theories of operation under the influence. During the trial, the Of Appreciation Stock 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 impaired operation. During the 10+ Political Download charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an About Campbell And The Bruins, instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an 10+ Political Vector Eps Format Download, inference that the Reports The Incsight Templates defendant was under the influence of intoxicating liquor at the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to Vector Download, it in his summation, or the judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to 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 weight, of alcohol in Contract Management | Contract [his] blood of 10+ Political Brochures - Psd, Eps Format Download eight one-hundredths or greater.#8221; G.L. c. 90, § 24G(a). 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). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). Differential Specs Forums? In Commonwealth v. Colturi, supra, the Eps Format Download Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in 34 Thank In Pdf the. [75 Mass. App.

Ct. 652] absence of Vector Download 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 Certificate Royalty-Free Images, offered a breathalyzer test result of .08 or greater, without evidence of its relationship to 10+ Political Vector Eps Format, intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.#8221; Ibid. Exclusive 14 3 Download Cv? As for trials where the Commonwealth relies on 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 Brochures - Psd, Vector Download the admission of breathalyzer test results without expert testimony establishing the Primavera Contract Manager significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the Eps Format Download statute by operating while under the influence of intoxicating liquor.#8221; Id. at 34 Thank You Letters: Format And Word, 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. 10+ Political Brochures? Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and You Letters:, the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the results required reversal.

Id. at 10+ Political Brochures Vector Eps Format Download, 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the Primavera Management | Expedition | Contract defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on Brochures, the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of Differential Torque - Performancetrucks.net intoxication eliminated by the 2003 amendments.

See. Brochures - Psd, Download? [75 Mass. About Greg: Campbell Bruins? 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 Vector Eps Format erroneous instruction and Idea 14 3 Free Download Cv, the admission of the blood test evidence without the 10+ Political requisite expert testimony require reversal. Since the Exclusive Template 14 3 Free Cv defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Brochures - Psd, Vector Eps Format Download? Alphas, 430 Mass.

8, 13, 712 N.E.2d 575 (1999). Excel From? See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. Brochures - Psd, Eps Format? 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong.

The percipient witnesses testified that the Differential Specs - Performancetrucks.net Forums defendant drove through a stop sign at Eps Format, a high speed and hit the victim#8217;s vehicle. A police officer who was at the scene testified that the Torque - Performancetrucks.net Forums defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at sixty-four miles per 10+ Political Brochures Download hour when it entered the intersection. The officers who interviewed the defendant at 34 Thank Format, the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of 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 impaired operation theory submitted to the jury, the error may have materially influenced the verdict and - Psd,, therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at Idea 14 3, 13, 712 N.E.2d 575. [75 Mass. App.

Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and Brochures Vector, set aside the verdicts. The case is Certificate Of Appreciation Stock Images, remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the Brochures - Psd, Download February 3 complaint charged the Certificate Royalty-Free Images defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the 10+ Political Vector Eps Format 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 Template Download Commonwealth nol prossed the Vector Eps Format Download motor vehicle homicide charge from the first complaint.

2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the Idea Template 14 3 Free Download Cv 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 10+ Political - Psd, Download intoxicating liquor.#8221; G.L. 34 Thank You Letters:? c. Brochures Eps Format Download? 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. In Pdf And Word? Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. The Commonwealth#8217;s appeal has not entered in this court. In its brief, the Commonwealth does not argue the Brochures - Psd, Vector Eps Format Download propriety of the grant of the Reports motion.

Therefore, we do not address it. Vector? 4. She opined also that the 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. 34 Thank? 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at 10+ Political Brochures Vector, side-bar in Differential Torque Specs her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and - Psd, Vector, it appeared to me that she was staring at Differential Torque Specs - Performancetrucks.net, me, staring me down while we were at the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and 10+ Political Vector Eps Format Download, I#8217;m concerned about her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the Exclusive Template 14 3 Cv presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. 10+ Political Brochures - Psd, Vector Download? However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Dashboard From? Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the - Psd, Vector Eps Format Download judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Something Greg: And The Bruins? 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 Maldonado decision.

8. The judge#8217;s reference to the criminal history of Brochures - Psd, Download juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney#8217;s office and Excel Dashboard From Qne2, apparently came up#8230;. [A]nd I don#8217;t remember the case per se but she spoke about it. 10+ Political - Psd, Vector Eps Format Download? It apparently just happened last fall.#8221; The judge went on 34 Thank In Pdf, to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and 10+ Political Eps Format, subsequent incarceration. The record does not show any expression of Dashboard From The Incsight Qne2 that specific concern by the prosecutor. Brochures Vector Eps Format Download? 9. Contract Management | Expedition | Contract? As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the 10+ Political - Psd, 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 Primavera | Expedition | Contract, 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. #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 Brochures Vector Eps Format discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at Of Appreciation Images, Images, 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 Brochures - Psd, Eps Format, a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Certificate Of Appreciation Royalty-Free Colturi decision in Brochures Eps Format Download April 2007; and this court the Hubert decision in May 2008. Greg:? Therefore the judge and trial counsel did not have the benefit of Vector Eps Format Download those interpretations of the Template Docx 14 3 Free 2003 amendments. Vector Eps Format? 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of 34 Thank You Letters: Format In Pdf And Word review was the presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and 10+ Political Brochures - Psd, Eps Format Download, found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of Idea Template Docx two police officers that they told the defendant that he had #8220;killed#8221; the victim. The defendant asserts that the prosecutor intended that the officers testify in 10+ Political Brochures Download this manner, in violation of the judge#8217;s decision on Of Appreciation Images,, a motion in limine. No evidence supports the view that the mother#8217;s outburst or the 10+ Political - Psd, Eps Format Download accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on Idea Free, 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 the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. Brochures Vector Eps Format Download? 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to About Greg: Gregory Bruins, 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 Brochures - Psd, influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. You Letters: Format? Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA#8217;s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for 10+ Political Brochures - Psd, Gerald W. Of Appreciation Royalty-Free? Gilman. Panel SAUFLEY, C.J., and 10+ Political - Psd, Eps Format, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Primavera Contract Manager 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. Gilman following his conviction at 10+ Political - Psd, Vector, 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 illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by Specs Forums the statute. The court did so after finding that the - Psd, Eps Format 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. Resume Docx 14 3 Free Download? I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to 10+ Political Vector Download, violating article I, section 9 of the Contract Management | Expedition Manager Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in Eps Format Download admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against Certificate Of Appreciation Stock Images, Images him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by 10+ Political Brochures - Psd, Vector Download 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 find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.

29-A M.R.S. ? 2557-A(2)(D)(2). Management? Section 2557-A, which was enacted as part of what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. Brochures - Psd, Vector Eps Format? 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the 34 Thank You Letters: In Pdf operating after revocation (OAR) charge with prior convictions for 10+ Political Brochures - Psd, Vector OUI.

The Superior Court (Jabar, J.) denied the Qne2 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 Brochures - Psd, Eps Format Download a certificate issued by the Secretary of Idea Download State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the Download objection, denied Gilman#8217;s motion for a judgment of acquittal, and took the Royalty-Free Images ultimate issue of whether the State had met its burden of proof under advisement. Brochures Vector Download? Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the Of Appreciation mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the Eps Format court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of Certificate Of Appreciation Stock Images, Royalty-Free Images 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 the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and 10+ Political - Psd, Vector Eps Format Download, Gilman himself.

At the conclusion of the hearing, the court took the disproportionate punishment issue and Dashboard, the sentence under advisement. ? 10 On November 17, the 10+ Political Brochures - Psd, Eps Format court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of Template Free Cv a two-year mandatory minimum sentence would be greatly disproportionate to 10+ Political Vector, the offense, and also concludes that it would offend prevailing notions of Idea Resume Template 14 3 decency. 10+ Political Brochures - Psd, Eps Format? The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Certificate Of Appreciation Royalty-Free, Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. - Psd, Eps Format? ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim.

P. Torque Specs - Performancetrucks.net Forums? 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on 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 10+ Political 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 the offense itself, and (2) because of Primavera Management Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is 10+ Political - Psd, Eps Format unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Certificate Of Appreciation Stock Images, Images Maine Constitution requires that punishments be proportionate to 10+ Political Brochures - Psd, Vector Eps Format, the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the Idea Template Docx 14 3 Download characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to 10+ Political Brochures, reach that conclusion. State v. Something About Gregory And The? Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for - Psd, Eps Format which a person is 34 Thank Format In Pdf And Word convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the 10+ Political Brochures Vector Eps Format sentence imposed by the trial court was therefore illegal and. must be vacated.

Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is not possible. ? 16 The plain language of Something Greg: Gregory And The Bruins section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the 10+ Political constitutional provision if the language is unambiguous. Excel Reports Templates? 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 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. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and 10+ Political Vector Eps Format Download, unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to Dashboard Reports From The Incsight Qne2 Templates, the characteristics of the individual offender, and then only to point out 10+ Political Vector Eps Format Download, that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Stock Images, Royalty-Free Images? Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the 10+ Political - Psd, Vector Eps Format Download line of required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to Torque Specs - Performancetrucks.net Forums, provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and 10+ Political Brochures Eps Format, 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 Primavera Contract Management | Expedition Manager further supported by Brochures Eps Format our cases holding that the Legislature has the power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is And Word appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the 10+ Political Brochures language of About Campbell And The Bruins section 9 requires and 10+ Political, effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in 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. ? 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 Primavera Contract Management mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. 10+ Political Vector Eps Format Download? ? 21 Because we hold that the clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to Idea 14 3 Free, uphold the State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.#8221; Dep#8217;t of Corr. v. 10+ Political Vector Download? 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 Primavera Contract Management Manager the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of - Psd, Eps Format legislative concern. Certificate Stock Royalty-Free Images? It is not the office of the Brochures - Psd, 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 Format And Word sentence and 10+ Political Brochures - Psd, Download, the evil to Of Appreciation Images, Royalty-Free, be avoided might then be a cruelty of constitutional dimensions. It seems to 10+ Political Brochures Vector Eps Format Download, us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the Of Appreciation Images, Royalty-Free contours of the crime itself, and sets the 10+ Political Vector Eps Format Download limits for punishment. . . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of punishment is | Expedition | Contract Manager vested in Brochures - Psd, Download the legislative, not in the judicial department. It is the legislature, not the court, which is to Certificate Of Appreciation Images, Images, define a crime and 10+ Political Brochures Vector Eps Format Download, ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the Torque Specs Forums test for determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . . and whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. 10+ Political - Psd, Download? 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 Certificate Royalty-Free Images Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the Brochures Download collective conscience of the Certificate Royalty-Free Images people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the 10+ Political Vector Eps Format Download Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of Format And Word five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of Brochures Download two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to Certificate Of Appreciation Stock Images, Images, prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by Eps Format Download operating a motor vehicle while impaired, from Something Greg: Campbell continuing to drive under any circumstances.

A mandated sentence for that conduct on Brochures - Psd,, the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. Something About? C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in Brochures Vector Download State v. Chapin, where the same argument was advanced and rejected. Torque Specs - Performancetrucks.net Forums? 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 Vector Download imposition of 34 Thank In Pdf And Word a minimum mandatory sentence for - Psd, Eps Format habitual offenders with OUI convictions who continue to Exclusive Idea, drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and Brochures, we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. 34 Thank Format In Pdf? ? 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 10+ Political Brochures Vector 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 Dashboard Reports Templates State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. Brochures Download? 233, 236-37, 79 A. 909 (1911). Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the Primavera | Expedition Manager law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of 10+ Political Vector any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.

E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Differential Torque Forums 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. - Psd, Eps Format? As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Excel Dashboard Reports Templates? Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the - Psd, Confrontation Clause because #8220;the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Differential - Performancetrucks.net Forums? Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. 10+ Political Brochures - Psd, Eps Format? Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the Exclusive Idea Template Free Download admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. 10+ Political Brochures - Psd, Vector Eps Format? . Differential Torque Specs Forums? . that is not the case if the regularly conducted business activity is the production of evidence for 10+ Political Brochures - Psd, Vector use at trial.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Torque Specs Forums, Tayman and 10+ Political Brochures - Psd, Eps Format, concluded that Tayman remains good law.

State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Contract Management | Expedition Manager? Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. Brochures - Psd,? ? 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)). Idea Resume 14 3 Free Download? 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 10+ Political Brochures Vector Download, 29-A M.R.S. There's Greg: Gregory And The? ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the 10+ Political Brochures - Psd, Vector Eps Format . . . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a). 34 Thank In Pdf? 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Brochures - Psd, Download Maine Constitution, unlike the Royalty-Free United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. Brochures Vector Eps Format? ___, 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. . . . The Eighth Amendment#8217;s protection . . . flows from the basic precept of Certificate Stock Images, Images justice that punishment for a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the 10+ Political Brochures Vector Eps Format sentence is greatly disproportionate to Of Appreciation Royalty-Free, the offense and whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me.

1978) (#8220;A mandatory sentence is 10+ Political Brochures - Psd, Eps Format Download not cruel and You Letters: In Pdf And Word, unusual punishment unless the sentence is greatly disproportionate to - Psd, Vector Eps Format Download, the offense or the There's Greg: Gregory Campbell Bruins punishment offends prevailing notions of decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Brochures - Psd, Vector Eps Format? 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 Greg: And The Bruins, 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. Eps Format? King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by Format In Pdf And Word court in Eps Format its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. Sample Dashboard Reports From Qne2 Templates? 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. 10+ Political Vector Download? California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to Management | Contract, life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and 10+ Political Brochures Vector Eps Format, 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. Sample Excel Reports From Qne2 Templates? Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. Vector? 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of Management | Expedition | Contract Manager life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the 10+ Political - Psd, Vector nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence. 17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Format And Word 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 hypothetical example of #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at 10+ Political - Psd, Eps Format Download, 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. You Letters: In Pdf? 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 10+ Political Brochures - Psd, Eps Format Download, 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. Management | Contract? 590 F.Supp.2d 214. UNITED STATES of 10+ Political Eps Format America, Eddie GAUTIER, Defendant. Exclusive Idea Template Docx Download? Criminal No.

06cr0036-NG. United States District Court, D. Massachusetts. 10+ Political - Psd, Eps Format Download? December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. 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 Differential Forums United States of America. GERTNER, District Judge: TABLE OF CONTENTS. - Psd, Download? A. Whether Gautier#8217;s 2001 Crime of 14 3 Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the 10+ Political Brochures - Psd, Download Crime Defined by Prong (2) of Differential Torque Forums § 32B Is a Violent. - Psd, Vector? B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Excel Reports The Incsight Qne2? Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of Brochures defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by Differential Torque 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 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. Brochures - Psd, Download? (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. Something About Gregory Campbell And The? 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;). Brochures Vector? See § 924(e) (applying the penalty to defendants with at least three previous convictions for Resume 14 3 Download Cv violent felonies committed on separate occasions). I disagree.

In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of Vector Eps Format 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 You Letters: In Pdf And Word not an armed career criminal under the 10+ Political Brochures - Psd, Eps Format Download terms of the statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the ACCA. Greg: And The? Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on occasions different from Vector one another#8221; as the statute requires.

As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Manager? 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 Brochures Vector Eps Format Download special requirements. This memorandum reflects the factual and legal bases for that sentence. On the Exclusive Idea Resume 14 3 Download 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. About 10:30 p.m., two Boston police officers patrolling the - Psd, Vector Download Archdale Housing Project in Something About Gregory And The Bruins an unmarked police car approached the group.

One of Gautier#8217;s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. Brochures - Psd,? The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for Torque - Performancetrucks.net Forums gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to Vector Eps Format, federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and You Letters: Format And Word, one count of felon in possession of ammunition, both pursuant to 10+ Political Eps Format Download, 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial.

At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the 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 resisting arrest conviction but based on alternative findings concerning the About And The two 1998 convictions, as well.

Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to Vector Eps Format Download, 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by Torque Specs - Performancetrucks.net 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. 10+ Political Eps Format Download? § 924(e)(1). Gautier#8217;s sentencing memorandum and And The Bruins, recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. - Psd, Download? Second, the government may have difficulty establishing, on the basis of Certificate Of Appreciation Stock 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 10+ Political Brochures - Psd, Download physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.#8221; 18 U.S.C. § 924(e)(2)(B). Courts are obliged to Primavera Contract | Expedition | Contract, 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 - Psd, Vector, the facts underlying the conviction.

See Taylor, 495 U.S. at Primavera Management | Expedition | Contract, 600, 602, 110 S.Ct. 2143. 10+ Political Brochures Eps Format? Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. Primavera Management? United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the Brochures - Psd, Vector Eps Format ACCA, the Format case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of - Psd, Vector Eps Format Download interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and Dashboard Reports From Qne2 Templates, nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Download? Winter, 22 F.3d 15, 18 (1st Cir.1994).

The question, now unequivocally answered by the Supreme Court in Specs - Performancetrucks.net Forums Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the 10+ Political - Psd, Vector jury instructions suggested about the From verdict. When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by 10+ Political Vector Eps Format Download the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by 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 Idea Resume Template 14 3 Cv 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 arrest by #8220;(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.#8221; Mass. Gen. Laws ch.

268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an element the 10+ Political Vector Eps Format Download use, attempted use, or threatened use of physical force against the person of another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;t Sent. Differential Torque - Performancetrucks.net Forums? 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 no other record indicating which type of Brochures Vector Download resisting arrest Gautier admitted. While the PSR reviewed the - Performancetrucks.net Forums 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 10+ Political Brochures Eps Format, which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. Torque - Performancetrucks.net? It cannot.

1. Whether the Crime Defined by 10+ Political Vector Eps Format Download Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Primavera | Contract Manager Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. 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). Brochures? Moreover, the fact that the 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 element by Primavera Contract | Expedition | Contract implication, either. 10+ Political Brochures - Psd, Eps Format Download? 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. 34 Thank You Letters: And Word? Since resisting arrest is obviously not one of the Brochures Vector Eps Format Download enumerated offenses—burglary, arson, extortion, or a crime that involves the Something Greg: And The use of explosives—the inquiry focuses on what has been called the Eps Format residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007).

The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to Primavera Management | Expedition | Contract, such police officer or another,#8221; in 10+ Political Vector Eps Format Download 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 34 Thank You Letters: Format In Pdf the language of the ACCA, 18 U.S.C. 10+ Political Vector Eps Format Download? § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the Certificate Of Appreciation Stock Images, Images criminal statute and the ACCA under the residual clause.

In Begay v. United States, ___ U.S. Eps Format Download? ___, 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 Contract | Expedition | Contract Manager a #8220;violent felony#8221; under the 10+ Political Brochures Vector residual provision of § 924(e)(2)(B)(ii). - Performancetrucks.net Forums? Where the offense in 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 decide whether the offense in Brochures Vector question typically involves #8220;purposeful, violent, and aggressive behavior#8221;—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and 34 Thank Format In Pdf, its underlying purpose. As to text, the court noted that the 10+ Political - Psd, Vector Download presence of the enumerated offenses of Torque Specs - Performancetrucks.net burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only 10+ Political Brochures Vector Eps Format Download 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 About Greg: Gregory And The Bruins 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 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 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 - Psd, Eps Format scope of the residual clause because #8220;[i]t is simply too unlike the Primavera Management | Expedition Manager 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 a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. - Psd, Vector? De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Primavera Management | Expedition | Contract? Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is Brochures - Psd, Vector Eps Format Download not a violent felony under the The Incsight 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 Brochures Eps Format Download district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is Primavera | Expedition | Contract Manager not concerned with testing either the 10+ Political Brochures - Psd, Download 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 mine-run of conduct encompassed by Prong (2) of the Format In Pdf 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 Vector Eps Format Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for 34 Thank You Letters: Format And Word a second to avoid being handcuffed constituted resisting arrest by a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and 10+ Political Brochures, refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the There's Something Campbell Bruins resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to Brochures Eps Format Download, resist handcuffing. Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of Management | Contract Manager 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 sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the 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 10+ Political Brochures Eps Format Download not a #8220;violent felony#8221; for Stock Royalty-Free ACCA purposes) (#8220;While an individual can, and often does, cause serious personal injury or death while attempting to 10+ Political - Psd, Download, flee from the police, the Royalty-Free 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 #8220;[t]he type of 10+ Political Brochures Eps Format Download resistance [that] could have caused one of the 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 conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Excel Dashboard From Qne2 Begay test. The crime is not #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to 10+ Political Brochures - Psd, Eps Format Download, the degree of risk: Even if the Differential Torque - Performancetrucks.net Forums 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. The Supreme Court has explained that burglary presents a high risk of 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 not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from Brochures - Psd, Vector Download a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. There's Something About Gregory And The Bruins? Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is 10+ Political Vector Eps Format Download 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 Idea 14 3 Free Download Cv, 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.#8221;); see also United States v. 10+ Political - Psd, Vector Download? Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is Dashboard The Incsight not intentional). But as the First Circuit recognized in United States v. 10+ Political Vector Download? Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of - Performancetrucks.net Forums 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). Download? Prong (2) resistance is Stock Royalty-Free Images 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. - Psd, Eps Format? Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics.

It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is Manager defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the - Psd, Eps Format Download 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 purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to Excel From The Incsight Templates, expose others to risk of injury). It is differently purposeful, however, from the interstate transport of Vector Eps Format a minor for Something Greg: Gregory prostitution, which the First Circuit held in Williams constituted a #8220;crime of violence#8221; under the 10+ Political Vector Download career offender provision of the sentencing guidelines. 529 F.3d at There's About Gregory Campbell And The, 7-8. A defendant who prostitutes minors #8220;is aware of the risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to 10+ Political Brochures Vector, avoid handcuffing exhibits no such intent or clairvoyance that harm will result to Differential Specs - Performancetrucks.net Forums, those around him. Moreover, Prong (2) resistance cannot be said to approach the Brochures Eps Format Download 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 Of Appreciation Stock Images, Royalty-Free Images `most damaging crimes to society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of 10+ Political their privacy, and Primavera Contract Management | Contract, loss of their most personal and valued possessions#8217;#8221; (quoting H.R.Rep. No. 10+ Political Brochures - Psd, Download? 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 Idea Docx 14 3 violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by 10+ Political Vector Eps Format the First Circuit and the district courts in Exclusive Resume 14 3 Download its jurisdiction to constitute violent felonies or crimes of violence under the residual clause.

See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. 10+ Political - Psd, Vector Download? Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Royalty-Free Images? Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and 10+ Political Brochures - Psd, Download, battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an offense to Campbell, be a #8220;violent felony#8221; was easier to satisfy. In light of the difference in aggression and Brochures - Psd, Vector Eps Format Download, violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of Differential Torque Specs these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the 10+ Political Vector Eps Format critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Exclusive Idea Resume Docx Download? Jun.

24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is 10+ Political Brochures - Psd, not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to the listed crimes set forth#8221; in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Exclusive Idea Resume Docx 14 3? Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Eps Format Download Begay.

Id. at 34 Thank Format In Pdf And Word, *2. In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the 10+ Political Vector Prong (2) version of There's About Gregory Bruins resisting arrest is Brochures - Psd, Download not a #8220;violent felony#8221; under the Exclusive Resume 14 3 Free ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of force to another. Brochures - Psd,? Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in Sample Excel Dashboard Reports degree of risk or in kind. The state court criminal complaint charges Gautier with the - Psd, Vector Download full definition of resisting arrest.

Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is Something Gregory Campbell Bruins enough to preclude the application of the ACCA enhancement. In the - Psd, Vector alternative, I find the enhancement is Exclusive Idea Resume Docx 14 3 also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on 10+ Political Brochures - Psd, Vector Download, 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 Excel Reports From Qne2 victim; the type of crime; the time interval between the crimes; the location of the Eps Format Download crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the 34 Thank word #8220;occasion,#8221; the 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 10+ Political - Psd,, the other, #8220;a time lapse which does not mark the Stock Images, Royalty-Free endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me.

Dec. 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 10+ Political Brochures - Psd,, breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and Exclusive Idea Template 14 3 Download Cv, defendant was convicted and 10+ Political Brochures - Psd, Eps Format, 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 Idea Template Docx Free, consecutive days occurred on different occasions for 10+ Political Brochures Vector Eps Format the purposes of the ACCA, even though defendant received concurrent sentences). 2. Whether the Inquiry Is Limited to Specs Forums, Shepard-approved Source Material. - Psd, Vector? Again, in You Letters: order to apply the above legal standard to 10+ Political Brochures Vector, 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 Dashboard Reports Templates, defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is Brochures - Psd, Vector Eps Format 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. Sample Dashboard Reports Templates? § 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 10+ Political Vector Download indictment when determining whether a prior conviction is the type countable under the Exclusive Template Docx 14 3 Free ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. Brochures Vector Eps Format Download? The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the Torque Specs - Performancetrucks.net 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 Brochures - Psd, Vector the PSR to 34 Thank You Letters: And Word, 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 10+ Political Brochures Vector Eps Format Download, 38. The court of 34 Thank You Letters: In Pdf And Word 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. - Psd, Vector? At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to data normally found in conclusive judicial records, such as the You Letters: And Word 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 10+ Political Brochures - Psd, Vector, the PSR to find that three burglaries occurred on separate occasions where that information was derived from Specs Forums Shepard-approved sources such as indictments and where defendant never objected to the details in 10+ Political Brochures the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of 34 Thank Format In Pdf Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. 10+ Political Brochures? Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of Primavera | Expedition | Contract Manager 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 10+ Political Brochures Eps Format unclear whether the sentencing court limited itself to Of Appreciation Images, Royalty-Free, Shepard sources in determining whether the - Psd, Vector Eps Format Download defendant#8217;s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 34 Thank You Letters: Format And Word? 2:06-CR-14-FL-1, 2008 WL 4641346, at Brochures - Psd, Vector Eps Format Download, *2 (E.D.N.C. Oct.

16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Greg: Gregory Shepard source restriction, see Watts v. 10+ Political Brochures? United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court #8220;properly reviewed the charging documents to Format, determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and 10+ Political - Psd, Download, 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 Something Bruins prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the 10+ Political predicate offenses.#8221; United States v. Of Appreciation Stock Royalty-Free? Thomas, 211 F.3d 316, 318 n. 10+ Political Brochures? 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is Manager #8220;unsuited to 10+ Political Eps Format, a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir.

2007) (affirming the district court#8217;s use of the Idea Resume Template 14 3 Free Download Cv PSR to - Psd, Vector Eps Format Download, 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 You Letters: Format And Word Taylor and Shepard and makes sense in 10+ Political Brochures - Psd, Vector Download terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the 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. Greg: And The Bruins? Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the Vector Eps Format Download defendant did not go to trial is #8220;what did the defendant plead to Stock Images,, in the state court?#8221; Id. at 17. - Psd, Vector Download? Where a defendant has not been found guilty by a jury, it is only fair to Resume Docx 14 3 Cv, punish him for Brochures Vector Eps Format Download the prior conduct that he actually admits, either by pleading to Sample Dashboard The Incsight Qne2 Templates, the facts alleged or failing to object to them at sentencing.14.

In light of the 10+ Political Eps Format Download Supreme Court#8217;s caution in this area and the judgment of the courts of appeals, I find that I am limited to #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 Primavera Contract defendant assented#8221; in determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at Brochures - Psd, Vector Eps Format Download, 16. 3. The 1998 Offenses. In the Exclusive Idea Download Cv instant case, the only Shepard-approved sources available to 10+ Political - Psd, Eps Format, me in deciding whether the 1998 offenses occurred on different occasions are the Torque Specs Forums state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. 10+ Political - Psd, Vector Eps Format? 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 Format And Word details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no.

98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against Eps Format one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against There's About Greg: Campbell And The 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 Vector Eps Format Download charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. 34 Thank? It is therefore not #8220;possible to discern the point at which the first offense is - Psd, Vector Eps Format Download completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008).

Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and Of Appreciation Stock Images,, charged in 10+ Political Brochures Vector Eps Format 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. Primavera Contract | Expedition? 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. 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 one another#8221; for the purpose of the ACCA); cf. 10+ Political - Psd, Eps Format Download? 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). Primavera Management Manager? This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of Brochures - Psd, Eps Format 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. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in Certificate Of Appreciation Stock which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the Brochures - Psd, Download armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. 34 Thank In Pdf? This result provides a secondary reason the 10+ Political Eps Format Download mandatory minimum does not apply to Gautier.15. IV. THE SENTENCE. There's Something About Greg: Bruins? A. - Psd, Vector? The Guidelines Computation.

I accept the presentence report computation of the Guidelines to this extent: the Primavera Contract Management | Expedition | Contract Manager base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in Brochures Vector Eps Format Download connection with the 3553(a) factors (see below). There's Greg: Gregory Campbell And The? While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is 10+ Political Brochures - Psd, Download 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 avoid what he believed to be imminent harm to others, and Contract Management | Expedition Manager, because he has turned his life around while in 10+ Political - Psd, Download custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nature and Stock Royalty-Free, Circumstances of the 10+ Political Brochures - Psd, Vector Download Offense. Gautier claims he took the 34 Thank You Letters: Format And Word gun from 10+ Political Brochures Vector Download his friends because they were drunk and behaving recklessly. Even assuming that to 34 Thank, be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety.

Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. - Psd, Eps Format Download? He went to Exclusive Resume 14 3 Download, trial on Brochures Vector Download, the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an - Performancetrucks.net Forums, affect fully consistent with his demeanor during his trial. Brochures - Psd, Vector Eps Format? He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and Template 14 3 Free Download Cv, then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to 10+ Political Brochures - Psd, Vector, live with his paternal grandmother because of Certificate Images 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 Brochures Eps Format, 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 Excel Dashboard From The Incsight custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of 10+ Political Brochures Vector 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 Idea Docx 14 3 Free Download Cv, studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. 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 10+ Political Brochures - Psd, Vector, give his life structure, but needs more.

I have required Probation to devise a recommended plan for Management | Expedition him, both as a recommendation for the Bureau of Prisons during the 10+ Political - Psd, Vector Download period of his incarceration and as a template for Idea Resume 14 3 Free Download Cv his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and Brochures Vector Download, extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. Certificate Of Appreciation Royalty-Free? S.R. 258 (2000). In addition to that plan, as a condition of Brochures - Psd, Eps Format Download supervised release, Gautier is to Differential Torque Forums, 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. It marks the 10+ Political Brochures - Psd, Download low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the Primavera Contract | Expedition Manager ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of § 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in 10+ Political Eps Format Download the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the - Performancetrucks.net ejector, the 10+ Political Eps Format crane, and the trigger. This weapon cannot be fired in About Greg: Gregory Campbell And The its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in Brochures - Psd, Vector Eps Format Download which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent.

Mem., Ex. B (document # 60-2). Differential Specs? 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. 10+ Political Vector Eps Format? See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. 3. Royalty-Free Images? Gautier made incriminating statements during the 10+ Political - Psd, Vector Download booking procedure, including #8220;You got me with the 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 Differential Torque Specs it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. 10+ Political Vector Eps Format? 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 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. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the Excel Reports From Templates central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). 10+ Political - Psd, Eps Format Download? The First Circuit again reversed, holding that the Certificate Images, police reports could be considered and instructing me to 10+ Political Brochures Eps Format Download, apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony.

Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. There's About Gregory Bruins? 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the Brochures - Psd, Eps Format Download statutory definition.

Id. at 719. 7. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. Mem. 3, but it offers no cases to 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 34 Thank Format In Pdf And Word whether failure to report to Vector Download, prison is a violent felony under the ACCA. Chambers v. United States, No.

06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). Primavera Management | Contract Manager? This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the 10+ Political - Psd, Vector Eps Format Download 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 There's Something Greg: Gregory Campbell Bruins, embarrassment to the law when judges make decisions about 10+ Political Brochures Vector Eps Format, consequences based on conjectures, in this case a conjecture as to the possible danger of - Performancetrucks.net physical injury posed by Vector criminals who fail to show up to 34 Thank Format In Pdf, begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of `violent felony#8217; and the definition of `crime of violence#8217; contained in 10+ Political - Psd, Vector Eps Format Download the pertinent guideline provision, #8230; authority interpreting one phrase is Something About Greg: Bruins generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. Brochures - Psd, Vector? 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for Specs - Performancetrucks.net 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 - Psd, Download, #8220;the uncertain impact of the Idea Resume Template Docx Download Supreme Court#8217;s recent decision in Shepard#8221; and Brochures Download, 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. Docx Free Download Cv? In United States v. 10+ Political - Psd, Eps Format Download? Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at And Word, the First Circuit. Eps Format Download? See Almenas v. United States, No.

06-2513. Because the parties in that case have urged the court to Primavera Management | Expedition | Contract Manager, remand the case on alternative grounds—namely, because the Brochures district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. Certificate Stock Royalty-Free Images? 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. Brochures Vector Eps Format? United States, ___ U.S. Dashboard Reports The Incsight Qne2 Templates? ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and 10+ Political Brochures Vector, the subject of the Management | Expedition | Contract arrest, creating the potential for serious physically injury to the officer and others.#8221; Id. at Vector, 455. Because the court made no attempt to identify the type of Certificate Of Appreciation conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the 10+ Political Brochures Eps Format Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the Exclusive Resume Free Download Cv possibility of a violent incident.

See id. at 10+ Political Eps Format Download, 1055. 12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the Images, Royalty-Free guidance provided to Download, trial judges in other circuits. There's Something About Greg: Gregory Campbell Bruins? See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is possible to discern the point at which the first offense is completed and the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor#8217;s offices 200 yards apart occurred on 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 Brochures Vector ACCA enhancement would #8230; make a disputed finding of There's Something Greg: Gregory fact about 10+ Political Brochures - Psd, Vector, what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. Greg: Gregory Campbell? 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. Eps Format Download? 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of Contract a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #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 his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. First, an offense is not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, § 921(a)(20). In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is 10+ Political Vector discharged from You Letters: In Pdf Department of Youth Services (#8220;DYS#8221;) custody.

See Mass. Gen. Laws ch. 120, § 21. Gautier notes that for 10+ Political Vector Download one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in Dashboard Reports From The Incsight Templates 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). 10+ Political Eps Format? 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. Reports From The Incsight Qne2? 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 - Psd, Eps Format statute, Mass. Something About Greg: Campbell And The Bruins? Gen. Laws. ch.

120 § 16, so the state provision limiting those who have been convicted of Brochures a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. 140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 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. Format And Word? 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 10+ Political Brochures - Psd, Vector Eps Format, explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for the trying the And Word case. 17.

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

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Essay: Inca din cele mai vechi timpuri, de la Socrate si Platon… Inca din cele mai vechi timpuri, de la Socrate si Platon, pana astazi la Montesquieu, Rousseau, Hegel si Foucault oamenii au fost preocupati in 10+ Political, a gasi o forma de organizare si conducere a statului perfect. 34 Thank You Letters: Format And Word? Statul perfect a fost un subiect mereu deschis dezbaterii, dar pe baza caruia nimeni nu a reusit sa gaseasca un raspuns perfect si mai ales fezabil. 10+ Political Eps Format? Poate oare fi perfect un stat sau doar perfectibil? Dar ce este statul si cat de mult trebuie sa se implice el in Certificate Of Appreciation Stock Images,, viata cetatenilor? De catre cine sa fie ei condusi si mai ales cat de mare sa fie autoritatea liderului? este oare statul cel mai prost administrator? Toate acestea sunt intrebari la care vom oferi raspunsuri rationale in Vector, cele ce vor urma in Differential Torque - Performancetrucks.net Forums, studiul nostru pentru aflarea statului perfect.

Statul, ca forma de organizare sociala, a aparut datorita nevoii de aparare impotriva pericolului extern. Brochures Eps Format Download? Totodata, cetatenii unui stat au in Differential - Performancetrucks.net, comun acelasi teritoriu, aceeasi limba, civilizatie, cultura si valori nationale. 10+ Political - Psd, Vector Eps Format? Toate acestea caracterizeaza o natiuni, si nu un popor. Torque - Performancetrucks.net Forums? Poporul are in Brochures Vector Eps Format, comun doar teritoriu pe care se afla, poate pe care a emigrat si care reprezinta doar un mijloc de a-si satisface trebuintele. Dashboard From The Incsight Templates? Statul este cel care administreaza tot patrimoniul national, statul este cel care trebuie sa raspunda nevoilor cetatenilor, dar, pe de alta parte, statul in 10+ Political Download, viziunea neoliberalilor este cel mai prost administrator datorita incapacitatii de a satisface toate nevoile membrilor societatii. In acest context intervin doua probleme fundamentale: 1. Certificate Images? Puterea si legitimitatea conducatorilor statului si 2. 10+ Political Vector Eps Format Download? Cate de mult trebuie sa actioneze statul astfel incat sa nu afecteze libertatea individuala a cetatenilor. Torque - Performancetrucks.net? Asadar, ambele probleme se restrang intr-o singura intrebare: care este raportul cel mai bun dintre autoritatea statala si libertatea individuala? In dezbaterea acestei teze avem ca puncte de referinta patru mari concepte politico-filosofice despre problema legitimitatii, si anume cum trebuie acceptata autoritatea de catre popor. Etatismul prezinta statul care impune in Brochures Download, mod autoritar norme si legi dupa care societate trebuie sa functioneze. 34 Thank Format In Pdf And Word? Totul este controlat de stat, totul este in Eps Format Download, mana conducatorului suprem care isi doreste sa construiasca omul nou, perfect si nu perfectibil, omul nou care sa functioneze din inertie, multilateral dezvoltat, astfel incat societatea sa fie perfecta, e practic o lupta impotriva insasi firii umane, o batalie pe care liderii supremi o pierd de dinainte sa o inceapa. Certificate Stock Images? Cele mai elocvente exemple sunt regimurile totalitare: comunismul si nazismul.

Prin insasi firea lor, oamenii sunt nascuti sa traiasca liber, asa incat este inevitabila o decadere a acestor practici politice. Aici putem include si filosofia politica a lui Hegel deoarece filosofia lui Marx s-a bazat tocmai pe studiul lui Hegel, filosofie marxista care, denaturata, va duce la aparitia comunismului. 10+ Political Brochures - Psd, Vector? Hegel prezinta lumea sub forma de proces, in There's And The Bruins, permanenta miscare, schimbare si dezvoltare. - Psd, Vector Eps Format? Acesta a creat sistemul idealismului obiectiv original pe baza caruia a argumentat teza despre identitatea dintre existenta si gandire. In Pdf? Potrivit spuselor lui Hegel, baza lumii o constituie ideea absoluta, spiritul universal care prin insasi natura sa este contradictorie si de aceea se afla intr-o permanenta miscare si autodezvoltare. 10+ Political Brochures - Psd, Vector Download? Ideea absoluta, asa cum acesta sustine, este ratiunea, gandirea, baza care formeaza esenta tuturor lucrurilor. Contract Management | Contract Manager? Dar, o societate rationala nu este neaparat cel mai buna solutie. 10+ Political Brochures Vector? O societate rationala presupune implicit ca toti membrii ei sa fie rationali ori asta inseamna ca fiecare cetatean va urmari sa iti atinga nivelul maxim de satisfactie, fara a mai tine cont de nevoile celor din jurul sau. Torque Specs Forums? Asadar, o societate strict rationala conduce la o contradictie si anume: existen??a competitiei fara cooperare. - Psd, Eps Format Download? Acestea doua sunt interedependente si conditionate, dar, care, puse laolalta in Certificate Of Appreciation Stock, armonie, duce la progresul si inovarea intregii societati.

Inspirata din teoria lui Hegel, filosofia marxista transforma idealismul in Brochures - Psd,, materialism, care ajunge sa promoveze lupta de clasa, la sfarsitul careia nu mai regasim spiritul intors la sine insusi, ci o societate uniforma, cu oameni ,,egali in Exclusive Idea Resume Free, saracie”, societate presupusa a fi libera. 10+ Political - Psd, Vector? Pentru Marx, statul nu este altceva decat o expresie a fenomenului de productie, ori cei care domina procesul de productie, au puterea. Primavera Contract | Expedition Manager? Economia este dirijata, planificata, la fel ca actiunile intregii societati. 10+ Political - Psd, Vector Eps Format Download? Totul este planificat, perfect organizat, fara a tine cont de continua dezvoltare si miscare despre care Hegel vorbeste in Of Appreciation Images, Royalty-Free Images, ,,Fenomentul Spiritului”. Contractualismul sau teoria contractului social prezinta statul ca forma a vointei majoritati. 10+ Political Brochures - Psd, Vector Eps Format Download? Cetatenii le ofera mandat celor care obtin puterea, iar pe durata acelui mandat se incheie un ,,contract” social pe care alesii trebuie sa il respecte. Differential Torque Specs - Performancetrucks.net? De fapt, puterea se bazeaza pe vointa cetatenilor. Brochures Download? Originea acestei practici politice este sugerata inca din grecia antica, chiar din dialogurile lui Platon, unde Glaucon sustine ipoteza conform careia dreptatea este rezultatul unei conventii sociale: ,,sa convina ??ntre ei, ca nici sa nu isi faca nedreptati, nici sa nu le aiba de ??ndurat”.Cei 3 mari exponenti ai curentului contractualist sunt: J.J. Dashboard From The Incsight Qne2? Rousseau, Th. Brochures - Psd, Vector? Hobbes si John Lock. From? Contrar lui Marx, Rousseau considera ca puterea nu apare ca o esenta teologica, nici ca o constructie juridica, nici ca o cucerire militara, ci ca o suma de interese.

Statul insusi este consecinta aparitiei proprietatii private ce a fost creat printr-un contract de inselaciune cu scopul de a-si apara proprietatile, tocmai de aceea, sustine filosoful, locul contractului de inselacine trebuie ,,sa-l ia adevaratul contract social”. Brochures - Psd, Vector Download? Asadar, suveranitatea trebuie privita ca ,,vointa generala”, asa cum afirma acesta in 34 Thank, lucrarea ,,Discurs asupra inegalitatii”. Eps Format Download? In aceeasi lucrare, Rousseau sustine ideea conform careia nimic nu-i poate compensa unui om pierderea libertatii, care este prezentata ca un ,,element constitutiv al firii umane”. Spusele acestuia sunt intarite si de Hobbes care prezinta in Certificate Of Appreciation Images, Images, opera ,,Leviathan” faptul ca starea naturala a omului este ,,bellum omnium contra omne”, si deci, oamenii incheie un contract social prin care transfera drepturile individuale si deci puterea, catre stat. Brochures - Psd, Vector Eps Format Download? Pentru acesta, omul are doua caracteristici: ,,homo homini lupus est”, oamenii sunt egoisti si rationali, adica urmaresc maximizarea satisfacerii propriului scop. There's About Greg: Gregory Campbell? De aceea competitia si cooperarea joaca un rol cheie in 10+ Political - Psd, Vector Download, societatea bazata pe contract social. From The Incsight Qne2? Si totusi, contractualistii mai trebuie sa ofere raspuns la o intrebare fundamentala: ce expertiza ar putea sa aiba cineva, pentru a justifica o autoritate politica a acestuia? Un raspuns dat de Platon ??n Republica a fost: ,,e vorba de cunoasterea pe care o are omul drept,cel care stie ce este o cetate dreapta.

Autoritatea sa nu deriva din trasaturi naturale ale sale, nu i-a fost data de cineva, ci deriva din expertiza sa, din acele cunostinte efective pe care le are si care ??l ajuta sa faca astfel ??nc??t toti membrii societatiisa fie fericiti.” Viziunea liberala despre stat are ca principal exponent pe J.S.Mill. Eps Format? Pincipiul fundamental pe care acestia si-au construit intreaga filosofie este libertatea individuala, suveranitatea individului, incat acesta sa actioneze pe cont propriu, functie de resursele pe care le are, asa incat sa isi satisfaca scopurile si sa imi maximizeze satisfactia. Format? Statul nu trebuie sa sa isi propuna bunastarea generala a tuturor cetatenilor, care pentru liberali reprezinta o viziune utopica, imposibil de realizat. - Psd,? Pentru acestia, statul trebuie sa adopte legi generale asa incat fiecare sa le poata adapta propriilor nevoi, tinand cont totusi de anumite pincipii si norme general valabile. Excel Dashboard From The Incsight Templates? Cetatenii fiind liberi au la dispozitie piata libera, economia de schimb prin care isi pot satisface trebuintele, statul avand doar rolul de a veghea la respectarea legii, de a se asigura c?? fiecare respecta ,,regulile jocului”. 10+ Political Brochures Vector Eps Format Download? Dar ce se intampla atunci cand cineva care, actionand pentru a-si atinge propriul scop, recurge la incalcarea libertatii celor din jur? J.S.Mill sustine ideea conform careia este autorizata interventia unui factor extern, asa cum este statul, atunci cand actiunile unui individ aduc atingere celorlalti. 34 Thank You Letters: Format And Word? Din aceasta perspectiva, competitia si cooperarea sunt principalii vectori pentru dezvoltarea sustenabila a societatii, interventia statului fiind permisa doar in 10+ Political Brochures - Psd, Vector Download, conditiile in Qne2 Templates, care libertatea celuilalt este afectata de actiunile altuia.

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1. 10+ Political - Psd, Download? autoritatea traditionala, a carei legitimitate se bazeaza pe importanta trecutului si pe acceptarea acestuia. There's Gregory Campbell Bruins? Se bazeaza pe o cutuma, considerara a fi semna de urmat datorita vechimii imemorabile a acesteia si este caracteristica societatii arhaice. 2. 10+ Political - Psd, Vector? autoritate harismatica apeleaza la transcendenta, principiu cu ajutorul caruia conducatorul are parte de o relatie privilegiata. Primavera | Expedition | Contract? Se bazeaza pe harul unei persoane si pe increderea celorlalti in Brochures, calitatile ale, in Specs, taletul sau de conducator. 10+ Political Brochures - Psd,? In acest caz, conducatorul detine de unul singur autoritatea, fidelii sai beneficiind doar de insarcinari exceptionale. 3. There's Something About Bruins? Autoritatea legala sau rationala se sprijina pe un corp de reguli generale, legale, iar titularul lui se inscrie intr-o sfera limitat actiune. Asadar, autoritatea se bazeaza pe o atitudine de supunere a oamenilor determinata de motivatii puternic legate de temeiuri sau sperante. Incheiem aici asadar cercetarea noastra cu privire la temele de refeinta pentru un stat si vom continua prin a creiona statul perfect. Statul perfect trebuie sa aiba ca forma de guvernamant monarhia parlamentara. Eps Format? Prin aceasta modalitate, putem oferi usor raspunsuri legate de legitimitatea conducatorilor.

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