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A Sample French Fries Business Plan Template. Are you about starting a French fries company? If YES, here is english a complete sample French fries business plan template feasibility report you can use for fishing FREE . Okay, so we have considered all the requirements for starting a French fries company. We also took it further by analyzing and drafting a sample French fries marketing plan template backed up by actionable guerrilla marketing ideas for essays French fries companies. So let#8217;s proceed to the business planning section. Why Start a French Fries Business? Since the arrival of fast food restaurants, a lot of entrepreneurs have become millionaires. Ready? If you are considering becoming a millionaire in the food industry, one of the coolest ways of regents essays making money is to open a French fries food production company. Although this type is profitable, but at persuasive characteristics the same time you can run at a loss if your business is essays not well positioned and managed. It is important to state that loads of food related business cum fast food restaurants close shops simple because they failed to conduct detailed market survey and feasibility studies before launching the business. Your ability to fishing thesis re – strategize and always ramp up your service deliveries will help you stay competitive.

It is important to point out that French Fries food business is one the businesses that can’t go out of fashion simply because people eat food on a daily basis. Regents Essays? Depending on the scale you want to start, the startup capital for this type of business can be considered to on friendship in of be moderate. As a matter of fact, you can start your own French fries’ food business and then grow it big within a short period of time by re – investing your profits back to the business. If you are ready to take a journey into this industry, then this type of english business is what you truly want to do after you must have done your findings. You will also need is to write a good business plan. Below is a sample French fries food restaurant business plan templates that will help you successfully write yours with little or no stress; A Sample French Fries Business Plan Template. French fries food business belongs to the Snacks Food Production industry and room, operators in this industry primarily produces snack foods such as potato and corn chips, pretzels, roasted and salted nuts, nut butters, popcorn and other related snacks.

Most players in this industry do not produce cookies, crackers, bakery products, cereal or granola bars et al. French fries are generally served hot, either soft or crispy, and are usually eaten as part of lunch or dinner or by themselves as a snack, and they generally appear on english regents the menus of fast food restaurants. If you are a close observer of happenings in the Snack Food Production industry, you will agree that the ready to buy, industry has profited from increased demand over the last half a decade. As the economy, has continued to english regents experience growth, discretionary income levels have ascended. Hence, renewed consumer spending has increased sales of potato and in of and men, tortilla chips, along with nuts and seeds. English? With improvement in ready to buy, the economic conditions, the industry is english regents essays expected to rake more revenue. Expected increases in essay in of mice and men, per capita disposable income will aid some consumers to trade up to premium brands and product segments, helping drive revenue growth. In addition, as consumers demand more healthy versions of existing snacks, players in the industry are expected to introduce a wider variety of products. The Snack Food Production industry is a thriving sector of the economy of the United States, United Kingdom, France, Italy, and Canada and in most country of the world. Statistics has it that in the United States of America, The Snack Food Production industry generates a whooping sum of well over $38 billion annually from english regents, more than 2,851 registered snack food production outlets / franchise scattered all around the optimization swarm thesis, United States of America. The industry is responsible for the employment of well over 53,204 people.

Experts project The Fast Food Restaurants industry to grow at a 3.6 percent annual rate from 2011 to 2016. ConAgra, Snyder’s Lance and PepsiCo are the leaders in regents, The Fast Food Restaurants industry; they have the lion market share in the industry. Over and above, the French fries food production line of business is a profitable industry and it is open for any aspiring entrepreneur to come in and establish his or her business; you can chose to start on a small scale in a street corner like the average mom and swarm, pop business or you can chose to start on english regents a large scale with several outlets in key cities all across the United States of America. French Fries Business Plan Executive Summary. Golden Fingers French Fries is a standard and essay, registered chain of fast food restaurant that with strong bias in the production of French fries that will be located in one of the busiest roads in Long Beach – California but hope to spread out via franchising to key cities in the United States with the first 5 years of operations. English Essays? We are at room the final stage of leasing a facility along a major road that is big enough to fit into the design of the kind of fast food restaurant that we intend launching and the facility is located in a corner piece directly opposite the largest residential estate in Long Beach – California. Golden Fingers French Fries will be involved in the sale of regents French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al in our restaurant and when customers order for it to ready thesis be delivered to them in english, any location around us. Basically, we will be involved in operating quick-service restaurants, operating fast food services, operating drive-thru and take-out facilities in our chains of fishing fast food outlets that will be scattered all across major cities in the United States and Canada. We are aware that there are several large and small scale French fries food business scattered all around Long Beach California, which is english regents essays why we spent time and resources to conduct our feasibility studies and market survey so as to offer much more than our competitors will be offering. Particle Swarm Thesis? We have delivery service options for our customers, and our outlet is well secured with the various payment options. Golden Fingers French Fries will ensure that all our customers are given first class treatment whenever they visit any of our chains of english regents fast food outlets.

We have a CRM software that will enable us manage a one on one relationship with our customers no matter how large the numbers of our customers’ base may grow to. We will ensure that we get our customers involved when making some business decisions that directly affect them. We are aware of the trend in the snacks food production / fast food industry and we are not only going to operate a system where our customers would have to come to our fast food restaurant to make purchase or whatever they want, but we will also operate an particle online fast food restaurant and our customers can place orders for our foods, snack and drinks online and they will get it delivered to their houses or any location they want us to deliver the english regents essays, goods to within Long Beach – California. Golden Fingers French Fries is a family business that is fishing statements owned by Jason Kennedy and his immediate family members. English Regents Essays? Jason Kennedy is a French fries specialist; he has a B.Sc. in Food Science and a Diploma in Business Administration, with well over 6 years of ready thesis experience in the restaurant and fast food industry, working for some of the leading brand in the United States. Although the business is launching out with just one outlet in essays, Long Beach California, but there is spanish vocab a plan to open other outlets via franchising all around California and in other key cities in the United States of America and english regents, Canada. Thesis To Buy? Golden Fingers French Fries is in the snacks production industry to service a wide range of regents essays clients and of course to make profits, which is why we will ensure we go all the way to make available a wide varieties of French fries and snacks in our outlets always. Ready Thesis To Buy? We will ensure that we do all that is permitted by the law of the United States to achieve our aim and ambition of starting the essays, business. Our product and thesis to buy, service offerings are listed below;

Operating quick-service restaurants Operating fast food services Operating drive-thru and take-out facilities Potato chips Nuts and seeds Peanut butter Tortilla and corn chips Other chips Other snacks Sale of Chicken and Chips Sale of beverages, such as water, juice and sodas. Our vision is to become the leading French fries food production company brand in Long Beach California. Our mission is to establish chains of fast food restaurants that will make available a wide variety of French fries, snacks and english regents, soft drinks at affordable prices to the residence of Long Beach – California and other cities in the United States of America and Canada where we intend opening our chains of swarm thesis French fries food outlets. Golden Fingers French Fries®, LLC do not intend to regents start a fast food restaurant business just like the usual mom and particle thesis, pop business around the street corner; our intention of starting a fast food restaurant business is to build a standard business in regents, Long Beach California. Although our French fries food outlet might not be as big as ConAgra, Snyder’s Lance and spanish vocab for essays, PepsiCo et al, but will ensure that we put the right structure in place that will support the kind of growth that we have in english regents essays, mind while setting up the business. We will ensure that we hire people that are qualified, honest, customer centric and fishing thesis statements, are ready to work to regents essays help us build a prosperous business that will benefit all the stake holders (the owners, workforce, and customers).

As a matter of persuasive characteristics fact, profit-sharing arrangement will be made available to all our senior management staff and it will be based on essays their performance for a period of ten years or more. In view of that, we have decided to hire qualified and spanish, competent hands to occupy the following positions; Chief Executive Officer (Owner) Restaurant Manager Human Resources and Admin Manager Chef / Kitchen Workers Sales and english, Marketing Manager Information Technologist Accountants / Cashiers Customer Services Executive Van Drivers / Deliverers Cleaners. Roles and characteristics, Responsibilities. English? Chief Executive Officer – CEO (Chief Florist): Heightens management’s effectiveness Accountable for fixing prices and signing business deals Liable for providing direction for the business Creates, communicating, and implementing the organization#8217;s vision, mission, and overall direction i.e. Ready Thesis? leading the development and english, implementation of the overall organization#8217;s strategy. Responsible for signing checks and documents on statements behalf of the company Evaluates the success of the organization Reports to the board. In control for regents essays overseeing the smooth running of HR and administrative tasks for the organization Preserves office supplies by checking stocks; placing and expediting orders; evaluating new products. Ensures operation of equipment by particle swarm thesis, completing preventive maintenance requirements; calling for repairs. Regents? Updates job knowledge by particle swarm thesis, participating in educational opportunities; reading professional publications; maintaining personal networks; participating in professional organizations. Defines positions for recruitment and managing interviewing process Transmits out staff induction for new team members Responsible for training, evaluation and assessment of employees Responsible for regents arranging travel, meetings and appointments Manages the smooth running of the daily office activities.

Responsible for managing the daily activities in the restaurant (kitchen inclusive) Ensures that the restaurant facility is in tip top shape and conducive enough to welcome customers Interfaces with third – party providers (vendors) Reports to the Chief Executive Officer Handle any other duty as assigned by the CEO. Responsible for producing French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks as supervised by the kitchen supervisor In authority of carrying out all casual or unskilled jobs in the restaurant Responsible for packaging French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks meant for delivery Handles any other duty as assigned by the restaurant manager. Sales and persuasive essays, Marketing Manager. Manages external research and english regents essays, coordinate all the internal sources of information to retain the organizations’ best customers and optimization particle swarm, attract new ones Models demographic information and analyze the volumes of transactional data generated by customer purchases Identifies development opportunities; follows up on development leads and contacts; participates in english, the structuring and financing of projects; assures the completion of development projects. Essay Mice And Men? Responsible for english essays supervising implementation, advocate for the customer’s needs, and communicate with clients Develops, executes and evaluates new plans for expanding increase sales Document all customer contact and statements, information Represent the company in strategic meetings.

Manages the organization website Handles ecommerce aspect of the english essays, business Responsible for installing and maintenance of computer software and hardware for the organization Manages logistics and supply chain software, Web servers, e-commerce software and POS (point of ready thesis sale) systems. Responsible for preparing financial reports, budgets, and financial statements for the organization Provides managements with financial analyses, development budgets, and accounting reports; analyzes financial feasibility for the most complex proposed projects; conducts market research to forecast trends and english essays, business conditions. Fishing Statements? Responsible for financial forecasting and regents, risks analysis. Performs cash management, general ledger accounting, and financial reporting Responsible for developing and managing financial systems and policies Responsible for administering payrolls Ensures compliance with taxation legislation Handles all financial transactions for the organization Serves as internal auditor for the organization. Promptly attends to customers in a friendly and professional manner Ensures that un-occupied tables are always set and ready for customers Pulls out chairs for fishing customers as they arrive Handle any other duty as assigned by the Chief Operating officer / restaurant manager. Van Drivers / Sandwich Deliverers: Delivers customer’s orders promptly Deliver correspondence for the restaurant Runs errand for the organization Any other duty as assigned by the floor / line manager. Responsible for cleaning the shop facility at all times Ensure that toiletries and supplies don’t run out of english stock Cleans both the interior and exterior of the store facility Handle any other duty as assigned by the shop manager.

French Fries Business Plan SWOT Analysis. Our intention of persuasive characteristics starting just one outlet of our fast food restaurant in Long Beach California is to test run the business for english essays a period of 2 to 5 years to know if we will invest more money, expand the business and persuasive essays, then open other outlets all over California and essays, Key Cities in the United States of America and about my favorite, Canada. We are quite aware that there are several fast food and english, French fries food outlets all over Long Beach California and even in the same location where we intend locating ours, which is why we are following the due process of establishing a business. We know that if a proper SWOT analysis is conducted for our business, we will be able to position our business to maximize our strength, leverage on the opportunities that will be available to us, mitigate our risks and be welled equipped to confront our threats. To Buy? French fries / potato chips, nuts and english regents essays, seeds, peanut butter, tortilla and corn chips, other chips, other snacks employed the services of an expert HR and Business Analyst with bias in fast food line of thesis business to essays help us conduct a thorough SWOT analysis and to thesis to buy help us create a business model that will help us achieve our business goals and objectives.

This is the summary of the SWOT analysis that was conducted for Golden Fingers French Fries. Our location, the business model we will be operating on regents essays (physical chains of fast food restaurants with active online presence), varieties of payment options, wide varieties of French fries, snacks and soft drinks and our excellent customer service culture will definitely count as a strong strength for Golden Fingers French Fries. Persuasive Characteristics? So also, we have a management team that has what it takes to grow startup business from survival to profitability within the shortest time – frame. Essays? A major weakness that may count against about room us is the fact that we are a new French fries food business and we don’t have the english regents, financial capacity to compete with multi – million dollars chains of fast food restaurants with strong bias for French fries like ConAgra, Snyder’s Lance and thesis, PepsiCo et al. The fact that we are going to be operating our fast food restaurant in one of the busiest streets in english essays, Long Beach – California, provides us with unlimited opportunities to sell our French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al to and men a large number of people.

We have been able to conduct thorough feasibility studies and market survey and we know what our potential clients will be looking for english regents essays when they visit our fast food restaurant; we are well positioned to take on fishing thesis the opportunities that will come our way. Just like any other business, one of the major threats that we are likely going to face is regents essays economic downturn. It is a fact that economic downturn affects purchasing / spending power. Another threat that may likely confront us is the arrival of a new French fries food production business or fast food restaurant in same location where ours is located. French Fries Business Plan MARKET ANALYSIS. In this era when the thesis statements, online community is growing rapidly, you would do your business a who if you create your own online presence. One of the easiest ways to essays get people to see you as an expert in your line of business is to blog constantly about French fries and fast foods generally. You may also want to leverage on essay on friendship mice social media platforms like Instagram, Facebook, and Twitter, and others to publicize your French fries food outlet. English? You can as well go ahead to open an online portal where people can place order from French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and essay on friendship in of mice, sodas et al. You must ensure that your delivery system is efficient if you intend to essays do well with your online fast food business. Ready? So also, keeping consumers#8217; appetites satisfied, fast food restaurants / franchises have created new menu options that capitalize on the trend of increasing awareness of the english, health risks associated with a high-fat diet.

The industry has also thrived by developing products at price points attractive enough to weather the slow recovery, resulting in strong revenue growth. As a result of this, these trends are expected to continue and contribute to persuasive revenue growth going forward. Regents? One thing about French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al is that you can hardly find someone who don’t patronize them. As a matter of fishing thesis statements fact, most fast food restaurants now have menu designed specifically for veg and others depending on their food preferences. In view of that, we have positioned our fast food restaurant to service the residence of Long Beach California and every other location where our chains of fast food outlets will be located in key cities all over the United States of America and Canada. English Essays? We have conducted our market research and for essays, we have ideas of what our target market would be expecting from english regents essays, us. We are in business to retail our products to the following groups of people; Event Planners Vegetarians Corporate Organizations Households Schools Corporate Executives Business People Sports Men and Women Students Tourists. Our Competitive Advantage. A close study of the snacks food production / fast food industry reveals that the market has become much more intensely competitive over the last decade.

So , you have to be highly creative, customer centric and proactive if you must survive in this industry. We are aware of the stiffer competition and we are well prepared to compete favorably with other chains of fast food restaurants in Long Beach California. Thesis Statements? Golden Fingers French Fries®, LLC is essays launching a standard French fries food production business that will indeed become the spanish for essays, preferred choice of residence of Long Beach California and other cities where we intend opening our chains of fast food outlets. Our fast food outlet is located in a corner piece property on regents a busy road directly opposite one of the largest residential estates in Long Beach California. We have enough parking spaces that can accommodate well over in of mice and men 20 cars per time. One thing is certain, we will ensure that we have a wide variety of French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al available in regents, our shop at spanish all times. It will be difficult for regents customers to visit our fast food outlets and vocab, not make a purchase of French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al. One of our business goals is to make Golden Fingers French Fries®, LLC a one stop fast food restaurant. Our excellent customer service culture, online options, various payment options and highly secured facility will serve as a competitive advantage for us. Lastly, our employees will be well taken care of, and their welfare package will be among the regents, best within our category (startups French fries food production / fast food restaurants) in the snacks food production / fast food industry, meaning that they will be more than willing to build the business with us and help deliver our set goals and essay on friendship and men, achieve all our aims and english regents essays, objectives. We will also give good working conditions and particle, commissions to regents freelance sales agents that we will recruit from time to time.

French Fries Business Plan SALES AND MARKETING STRATEGY. Golden Fingers French Fries is in operation to operate a standard and secured fast food restaurant business in Long Beach California. We are in the snacks food production / fast food industry to maximize profits and we are going to go all the way out to thesis to buy ensure that we achieve or business goals and objectives. In essence, our source of income will be the retailing of the following products at affordable prices / offering the english, following services; Operating quick-service restaurants Operating fast food services Operating drive-thru and take-out facilities Potato chips Nuts and seeds Peanut butter Tortilla and persuasive essays, corn chips Other chips Other snacks Sale of Chicken and Chips Sale of english essays beverages, such as water, juice and persuasive essays, sodas. One thing is certain when it comes to fast food restaurant business, if your fast food restaurant is centrally positioned, you will always attract customers cum sales and english, that will sure translate to increase in revenue generation for on friendship in of mice and men the business. We are well positioned to take on english essays the available market in Long Beach California and we are quite optimistic that we will meet our set target of generating enough income / profits from the first six month of operations and grow the business and our clientele base. We have been able to critically examine the snack food production / fast food industry and we have analyzed our chances in the industry and essay about my favorite, we have been able to come up with the regents essays, following sales forecast. The sales projections are based on information gathered on the field and some assumptions that are peculiar to similar startups in Long Beach – California. Below is the sales projection for Golden Fingers French Fries®, LLC, it is based on the location of our business and other factors as it relates to about my favorite French fries shop start – ups in the United States; N.B: This projection is done based on english regents essays what is obtainable in the industry and with the assumption that there won’t be any major economic meltdown and there won’t be any major competitor offering same products and customer care services as we do within same location. Please note that the above projection might be lower and at the same time it might be higher.

Before choosing a location for essays Golden Fingers French Fries, we carried out a detailed market survey and feasibility studies in order for us to be able to be able to penetrate the available market and english, become the essay on friendship in of and men, preferred choice for residence of Long Beach California. We have detailed information and data that we were able to utilize to structure our business to english essays attract the on friendship and men, numbers of customers we want to attract per time. English Essays? We hired experts who have good understanding of the snacks food production / fast food industry to help us develop marketing strategies that will help us achieve our business goal of essays winning a larger percentage of the available market in Long Beach California. In other to continue to be in business and essays, grow, we must continue to sell our French fries, snacks and drinks which is why we will go all out to ready to buy empower or sales and marketing team to deliver. In summary, Golden Fingers French Fries will adopt the following sales and marketing approach to win customers over; Open our French fries food production outlet in a grand style with a party for all. Introduce our French fries food production outlets by sending introductory letters alongside our brochure to essays corporate organizations, schools, event planners, households and key stake holders in Long Beach – California Ensure that we have a wide variety of French fries, snacks and soft drinks in our restaurant at all times. Make use of optimization swarm thesis attractive hand bills to create awareness and also to english regents give direction to our fast food restaurant Position our signage / flexi banners at strategic places around Long Beach California Position our greeters to welcome and direct potential customers Create a loyalty plan that will enable us reward our regular customers Engage on road shows within our neighborhood to create awareness for our fast food restaurant. Persuasive Characteristics? French Fries Business Plan Publicity and Advertising Strategy. Despite the essays, fact that our fast food restaurant is well located, we will still go ahead to intensify publicity for the business. We are going to explore all available means to promote Golden Fingers French Fries. Golden Fingers French Fries has a long-term plan of ready to buy opening chains of fast food outlets in various locations all around California and key cities in the United States and english, Canada which is why we will deliberately build our brand to be well accepted in Long Beach before venturing out.

As a matter of ready thesis fact, our publicity and advertising strategy is not solely for winning customers over but to english regents effectively communicate our brand. Here are the platforms we intend leveraging on to promote and particle, advertise Golden Fingers French Fries; Place adverts on english essays community based newspapers, radio stations and essays characteristics, TV stations. Encourage the use of word of regents essays mouth publicity from spanish vocab for essays, our loyal customers Leverage on the internet and social media platforms like; YouTube, Instagram, Facebook, Twitter, LinkedIn, Snapchat, Badoo, Google+ and other platforms to promote our business. Ensure that our we position our banners and billboards in strategic positions all around Long Beach California Distribute our fliers and handbills in target areas in and around our neighborhood Contact corporate organizations, households, religious centers, schools and event planners et al by calling them up and informing them of Golden Fingers French Fries®, LLC and the products we sell Advertise Golden Fingers French Fries®, LLC business in our official website and english regents, employ strategies that will help us pull traffic to the site Brand all our official cars and delivery vans and ensure that all our staff members and management staff wears our branded shirt or cap at regular intervals. Our Pricing Strategy.

Pricing is one of the key factors that gives leverage to fast food restaurants, it is normal for consumers to go to places where they can purchase / order French fries / potato chips, nuts and seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al at cheaper price which is essay about my favorite room why big players in the snacks food production / fast food industry will continue to english regents attract loads of consumers. Spanish For Essays? We know we don’t have the english, capacity to compete with bigger and well – established chains of snacks food production outlets like ConAgra, Snyder’s Lance and PepsiCo et al, but we will ensure that the prices of all the essay on friendship in of mice, products that are available in our fast food restaurant are competitive with what is obtainable amongst fast food restaurant within our level. We are aware that there are contracts for supply of english regents fast foods and ready, soft drinks by regents, government establishments, NGOs, corporate organizations or big religious organization; we will ensure that we abide by the bidding pricing template when we bid for such contracts. The payment policy adopted by Golden Fingers French Fries®, LLC is essay in of mice all inclusive because we are quite aware that different customers prefer different payment options as it suits them but at the same time, we will ensure that we abide by the financial rules and regulation of the United States of english America. Here are the payment options that Golden Fingers French Fries®, LLC will make available to her clients; Payment via bank transfer Payment with cash Payment via credit cards / Point of Sale Machines (POS Machines) Payment via online bank transfer Payment via check Payment via mobile money transfer Payment via bank draft. In view of the above, we have chosen banking platforms that will enable our client make payment for vocab for essays the purchase of products without any stress on their part. Our bank account numbers will be made available on english regents essays our website and statements, promotional materials to english essays clients who may want to deposit cash or make online transfer for our products and services. In setting up any business, the amount or cost will depend on the approach and scale you want to undertake. If you intend to go big by renting a place, then you would need a good amount of capital as you would need to ensure that your employees are well taken care of, and persuasive essays characteristics, that your facility is conducive enough for workers to essays be creative and spanish for essays, productive.

This means that the start-up can either be low or high depending on your goals, vision and aspirations for your business. The tools and equipment that will be used are nearly the same cost everywhere, and essays, any difference in prices would be minimal and can be overlooked. As for the detailed cost analysis for starting a French fries food outlet / fast food restaurant; it might differ in other countries due to the value of their money. Essay About Room? These are the key areas where we will spend our start – up capital; The total fee for registering the business in the United States of America $750. Legal expenses for english regents obtaining licenses and permits as well as the accounting services (software, P.O.S machines and other software) $1,300. Marketing promotion expenses for the grand opening of Golden Fingers French Fries®, LLC in the amount of $3,500 and as well as flyer printing (2,000 flyers at optimization particle swarm thesis $0.04 per copy) for english regents the total amount of particle swarm $3,580.

The cost for essays hiring Business Consultant – $2,500. Insurance (general liability, workers#8217; compensation and property casualty) coverage at a total premium $2,400. The cost for payment of rent for 12 month at $1.76 per square feet in the total amount of $105,600. The cost for construction of a fast food restaurant (kitchen inclusive) $100,000. Other start-up expenses including stationery ( $500 ) and phone and utility deposits ( $2,500 ). Operational cost for the first 3 months (salaries of employees, payments of bills et al) $100,000 The cost for Start-up inventory (food ingredients, drinks and packaging materials et al) $80,000 Storage hardware (bins, rack, shelves, food case) $3,720 The cost for counter area equipment (counter top, sink, ice machine, etc.) $9,500 Cost for store equipment (cash register, security, ventilation, signage) $13,750 Cost of purchase of distribution vans $50,000 The cost for the purchase of furniture and gadgets (Computers, Printers, Telephone, TVs, Sound System, tables and chairs et al) $4,000. To Buy? The cost of Launching a Website $600 The cost for our opening party $10,000 Miscellaneous $10,000. We would need an estimate of two hundred and fifty thousand dollars ( $250,000 ) to successfully set up our French fries food outlet in Long Beach California. Please note that this amount includes the salaries of the essays, entire staff member for essays characteristics the first month of operation and english regents, the amount could be more or lower. Generating Funds / Startup Capital for Golden Fingers French Fries®, LLC.

Golden Fingers French Fries®, LLC is a private business that is solely owned and financed by Jason Kennedy and spanish for essays, his immediate family members. They do not intend to welcome any external business partners which is why he has decided to restrict the sourcing of the start – up capital to 3 major sources. These are the areas we intend generating our start up capital; Generate part of the start – up capital from english regents, personal savings Source for soft loans from family members and for essays, friends Apply for loan from my Bank. N.B: We have been able to generate about $100,000 ( Personal savings $80,000 and soft loan from regents essays, family members $20,000 ) and fishing, we are at the final stages of obtaining a loan facility of $150,000 from our bank. Regents Essays? All the papers and document have been signed and submitted, the loan has been approved and thesis, any moment from now our account will be credited with the amount. French Fries Business Plan Sustainability and Expansion Strategy. The future of a business lies in the numbers of loyal customers that they have, the capacity and competence of the employees, their investment strategy and the business structure.

If all of these factors are missing from a business (company), then it won’t be too long before the regents essays, business close shop. One of our major goals of starting Golden Fingers French Fries®, LLC is to build a business that will survive off its own cash flow without the need for injecting finance from external sources once the spanish, business is officially running. We know that one of the regents, ways of gaining approval and winning customers over is to statements retail our French fries / potato chips, nuts and regents essays, seeds, peanut butter, tortilla and corn chips, other chips, other snacks, water, juice, and sodas et al a little bit cheaper than what is obtainable in the market and we are well prepared to survive on lower profit margin for thesis a while. Essays? Golden Fingers French Fries®, LLC will make sure that the right foundation, structures and processes are put in spanish, place to ensure that our staff welfare are well taken of. Our company’s corporate culture is english regents essays designed to drive our business to greater heights and training and ready thesis to buy, re – training of our workforce is at essays the top burner.

As a matter of fact, profit-sharing arrangement will be made available to all our management staff and it will be based on their performance for a period of three years or more. We know that if that is put in place, we will be able to successfully hire and retain the best hands we can get in spanish, the industry; they will be more committed to help us build the english essays, business of our dreams. Business Name Availability Check: Completed Business Registration: Completed Opening of Corporate Bank Accounts: Completed Securing Point of Sales (POS) Machines: Completed Opening Mobile Money Accounts: Completed Opening Online Payment Platforms: Completed Application and Obtaining Tax Payer’s ID: In Progress Application for fishing statements business license and permit: Completed Purchase of Insurance for the Business: Completed Leasing of facility and remodeling the english essays, restaurant (kitchen inclusive): In Progress Conducting Feasibility Studies: Completed Generating capital from family members: Completed Applications for my favorite room Loan from the bank: In Progress Writing of Business Plan: Completed Drafting of Employee’s Handbook: Completed Drafting of Contract Documents and other relevant Legal Documents: In Progress Design of english regents essays The Company’s Logo: Completed Graphic Designs and Printing of Packaging Marketing / Promotional Materials: In Progress Recruitment of employees: In Progress Purchase of the Needed furniture, racks, shelves, computers, electronic appliances, office appliances and CCTV: In progress Creating Official Website for the Company: In Progress Creating Awareness for the business both online and around the community: In Progress Health and Safety and Fire Safety Arrangement (License): Secured Opening party / launching party planning: In Progress Compilation of our list of about my favorite room products that will be available in our shop: Completed Establishing business relationship with vendors – suppliers of potato, ingredients, coffees and soft drinks: In Progress.

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my paradise essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the english essays, Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs.

According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is ready .08% or greater. Essays? If a driver is under the age of swarm 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the english, state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the optimization swarm, experience and skill to defend you in english essays, court. Essay Mice? Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to regents essays, a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and optimization particle the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Regents? Especially when asked to spanish, perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights.

We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of probation and, and regents you can get a hardship driver’s license within four days of the plea hearing. A second DUI is particle swarm thesis harsher, and essays often requires going to trial. Essay? A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF.

It is similar to, but not technically a guilty plea. (More info on regents a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to to buy, your insurance. •Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for english regents essays, by defendant. •License suspended for 45 to 90 days (not including any penalty for persuasive essays, 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 regents essays knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. Thesis Statements? In addition, a smart attorney will include all other charges in regents, the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at thesis to buy least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •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 english regents essays, your car at your own expense for 2 years as a condition of on friendship mice any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on english 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 vocab for essays, any second offense OUI conviction, but it is regents essays still a tough punishment to ready, accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to english regents essays, fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the persuasive, prior is in another state, or decades old, you will be forced to get an interlock device installed in regents, your car as a condition of license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is 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 thesis, 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 look for a chance to win and avoid jail time. It usually only makes sense to work out english essays, a deal if jail time is off the spanish for essays, table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on english third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of 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 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 thesis, OUI where someone is injured, you are almost certain to do jail time. Regents? The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and thesis to buy prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to regents, 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 on friendship mice, 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 by english regents, a fine of thesis statements not less than five hundred nor more than five thousand dollars or by english, imprisonment for not more than two and thesis statements 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 english essays granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.

There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to about my favorite room, a finding of sufficient facts for operating a motor vehicle while under the influence of regents intoxicating liquor or under the influence of essay on friendship mice marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to english regents, waiver by the court for any reason. If a person against spanish vocab for essays whom a fine is assessed is regents essays sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to essays, 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 english regents, monies, from time to essays, time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of essays said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Spanish For Essays? Fees paid by an individual into the Victims of regents Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. Statements? 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 english, an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the persuasive essays characteristics, offense for which he has been convicted, the defendant shall be punished by english regents essays, a fine of essay on friendship in of mice and men not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for regents essays, good conduct until such person has served thirty days of such sentence; provided, further, that the ready thesis, commissioner of correction may, on the recommendation of the essays, warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the vocab for essays, recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of english 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 ready thesis to buy drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of regents essays 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 persuasive one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and regents one-half years nor more than five years; provided, however, that the persuasive essays characteristics, 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 english essays his sentence for good conduct until he shall have served one hundred and optimization particle swarm 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 regents essays, an offender committed under this subdivision a temporary release in thesis, the custody of an officer of such institution for regents essays, the following purposes only: to essay in of and men, attend the english essays, funeral of a relative, to visit a critically ill relative; to on friendship in of mice, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for regents essays, the purposes of an essay in of and men, aftercare program designed to support the english essays, recovery of an offender who has completed an thesis statements, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and regents essays provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for optimization particle, the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by english, a court of the vocab, commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by essays, imprisonment for not less than two years nor more than two and one-half years, or by vocab, a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in essays, 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 optimization swarm, probation, parole, or furlough or receive any deduction from his sentence for english essays, good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the on friendship mice and men, administrator of a county correctional institution, grant to essays, an offender committed under this subdivision a temporary release in to buy, the custody of an english, officer of such institution for the following purposes only: to attend the essay about room, funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an english, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to essay room, 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 an alcohol or controlled substance education, treatment or rehabilitation program by a court of the english, commonwealth or any other jurisdiction because of a like offense four or more times preceding the vocab, date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of regents essays not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon characteristics such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on english essays the recommendation of the warden, superintendent, or other person in charge of swarm thesis a correctional institution, or the english essays, 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 essay on friendship mice, the following purposes only: to essays, attend the funeral of thesis a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at english said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by essay room, the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on essays file or continued without a finding except for persuasive characteristics, dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on regents such complaint be transferred to another division of the on friendship, district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the english, commencement of my favorite a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for english, the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of optimization 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. If a new complaint is issued, the court shall dismiss the english regents, original complaint and for essays order that further proceedings on english essays the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and essay on friendship in of eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of regents essays 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 essay about room or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of 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 this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted.

(4) Notwithstanding the provisions of subparagraphs (1) and english regents essays (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to thesis statements, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the english regents, commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the about, offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the english regents essays, criminal record of the defendant, if any, and such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the essay about room, safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for english essays, such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for spanish vocab for essays, such offenders as provided or sanctioned by the division of alcoholism, pursuant to regents essays, regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of spanish vocab health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and english completed. Failure of the essay about my favorite room, 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 regents if the court finds that he has failed to attend or complete the residential alcohol treatment program before the characteristics, 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 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 regents essays, furlough or receive any reduction from his sentence for persuasive essays, good conduct until such person has served two days of such sentence; and 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 of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to english regents essays, attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for persuasive, 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 regents essays, pay; and provided, further, that such person files with the spanish for essays, court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and english essays that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of spanish vocab a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of english regents essays a like offense by a court of the commonwealth or any other jurisdiction preceding the and men, date of the commission of the english, offense for which he has been convicted, and said person qualifies for optimization particle swarm, disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to regents, stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to mice and men, the prosecuting officer who shall forward the same to the registrar.

The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by regents essays, the provisions of essay about my favorite room this section and sections twenty-four D and english 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 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 date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on 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 fishing thesis the registrar may, in english regents essays, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for essay on friendship in of mice, the purpose of requesting the essays, issuance of a new license on a limited basis on the grounds of hardship and a showing by spanish vocab, the person that the regents, causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the 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 on friendship in of and men, a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to essays, operate of such person unless the prosecution of vocab for essays such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the english regents essays, expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for essays, not more than an essays, 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 spanish vocab for essays 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 english, registrar for essay my favorite room, the purpose of requesting the issuance of english regents essays 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 particle swarm past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for regents essays, the duration of the optimization, hardship license. (3) Where the license or right to operate of english essays 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 thesis statements, 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 essays, license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the to buy, license or reinstate the regents, right to operate to thesis, such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for regents essays, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an fishing thesis statements, identical twelve hour period every day, on the grounds of hardship and a showing by the person that the causes of the english, present and vocab for essays past violations have been dealt with or brought under control and english regents essays the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and in of and men necessary; and provided, further, that such person may, after the expiration of four years from the regents, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of persuasive essays characteristics hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Regents Essays? A mandatory restriction on a hardship license granted by ready, 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 english regents essays, the licensee for essay on friendship, 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 english 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 thesis, license or reinstate the right to regents, operate of such person unless the prosecution of such person has been terminated in favor of the thesis, defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for essays, and shall be granted a hearing before the registrar for the purpose of requesting the persuasive characteristics, issuance of a new license for english, employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the essay about my favorite room, present and regents essays 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 optimization particle swarm, date of conviction, apply for and shall be granted a hearing before the registrar for essays, 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 ready, causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and essays each vehicle operated by the licensee for the duration of the hardship license.

(33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from fishing any order of the registrar of english motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the on friendship mice, defendant’s biographical and informational data from records of the department of english regents essays probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the essays characteristics, commonwealth or any other jurisdiction. English Regents Essays? Such documentation shall be self-authenticating and essay admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of essays subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on vocab probation without sentence or under a suspended sentence or the case was placed on file, and english 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 ready thesis, 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 essays, the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of ready his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and english regents essays deemed relevant to essay in of mice and men, the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and 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 essays, him; and provided, further, that blood shall not be withdrawn from any party for persuasive, 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. Regents? If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the about my favorite room, 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 regents any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is thesis to buy under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in regents essays, the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is spanish vocab for essays 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 essays, a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of ready thesis to buy alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon regents any way or in any place to which the on friendship in of mice and men, public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in english, the event that he is arrested for about room, operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to regents, have consented to a blood test unless such person has been brought for essay room, treatment to english regents, a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of essay on friendship intoxicating liquor. If the person arrested refuses to submit to essays, such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of fishing thesis 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the essays, influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of particle 2 such violations shall have his license or right to operate suspended forthwith for regents, a period of 5 years for fishing, 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 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 regents essays, 10 years.

If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of ready thesis to buy intoxicating liquor in violation of regents subsection (b) of thesis to buy said section 24G, or section 131/2 of regents 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 particle such person’s license or right to operate issued by english, the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the fishing thesis, costs for the towing, storage and maintenance of the vehicle to be borne by english regents, 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 spanish for essays 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’s belief that the person arrested had been operating a motor vehicle on essays a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to ready thesis to buy, 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. English Regents Essays? Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to essay my favorite room, suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to english regents, operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith.

The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the persuasive essays, 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 regents essays, police officer. A suspension for a refusal of either a chemical test or analysis of about room 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 defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of regents essays 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’s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the thesis, following: (i) immediately and on behalf of the registrar take custody of english such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of optimization particle swarm thesis suspension, in a format approved by the registrar; and.

(iii) immediately report action taken under this paragraph to regents essays, the registrar. Each report shall be made in a format approved by persuasive, the registrar and shall be made under the english essays, penalties of perjury by the police officer. Each report shall set forth the spanish vocab, grounds for the officer’s belief that the english essays, person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the essays, person was under 21 years of age at the time of the english essays, arrest and on friendship in of mice and men whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the regents essays, operator administering the test or analysis was trained and essay in of mice certified in english essays, the administration of the test or analysis, that the test was performed in accordance with the regulations and essays standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of english regents intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. Mice? A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to english essays, suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver’s license or permit issued by fishing thesis, the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’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’s blood pursuant to subparagraph (1). English Essays? Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Ready? Each such report shall set forth the grounds for the officer’s belief that the regents, person arrested had been operating a motor vehicle on a way or place while under the influence of fishing statements intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of english essays such test, that the test was performed in accordance with the regulations and standards promulgated by ready to buy, the secretary of english regents essays public safety, that the on friendship and men, equipment used for such test was regularly serviced and maintained, and that the english essays, 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 optimization particle thesis, the person authorized by him, and shall be sent to english, the registrar along with the persuasive essays characteristics, confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of essays suspension, be entitled to characteristics, a hearing before the essays, registrar which shall be limited to to buy, the following issues: (i) did the essays, police officer have reasonable grounds to on friendship, believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in essays, any place to which members of the about room, public have a right of english essays access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to ready to buy, submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to regents, operate. The registrar shall create and preserve a record at ready said hearing for judicial review.

Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in regents, the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the essay on friendship and men, court in which the underlying charges are pending or if the individual is under the regents essays, age of thesis statements twenty-one and there are no pending charges, in the district court having jurisdiction where the english regents essays, arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to 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 spanish, age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and regents shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of persuasive characteristics such restoration. [ Second paragraph of paragraph (g) of essays subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. Essay Mice? For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of regents paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to essay about my favorite, 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 english essays, the district court having jurisdiction where the persuasive, arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the english regents essays, court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the persuasive essays, age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to english regents, forthwith notify the department of criminal justice information services and the registrar of such restoration.

(h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for to buy, the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of regents essays 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 in of, which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and regents making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in essays, an application for such a license or learner’s permit, or whoever knowingly makes any false statement in english regents essays, an application for registration of a motor vehicle, shall be punished by essay about, a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by essays, both such fine and imprisonment; and essay on friendship in of and men 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 regents essays, a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for to buy, arrest upon english regents a complaint for a violation of any provision of this paragraph if in persuasive essays characteristics, the judgment of the court or justice receiving the complaint there is regents reason to essays characteristics, believe that the defendant will appear upon english regents essays a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. Essays Characteristics? 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 regents essays, which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of optimization particle swarm thesis his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to essays, be used by any person, or whoever makes false statements in to buy, an application for regents essays, such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by spanish for essays, operating said motor vehicle negligently so that the english, lives or safety of the public might be endangered, shall be punished by a fine of spanish for essays not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in english regents, the state prison for persuasive, 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 english regents, a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is statements found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of regents essays 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 persuasive characteristics, imprisonment for not less than six months nor more than two and one half years in regents essays, a house of correction or for not less than two and characteristics one half years nor more than five years in the state prison or by both fine and imprisonment. English Essays? A summons may be issued instead of a warrant for arrest upon a complaint for essay in of mice, a violation of english regents any provision of this paragraph if in the judgment of the court or justice receiving the my favorite, complaint there is reason to english regents essays, believe that the defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the commonwealth, is spanish convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of english essays operating a motor vehicle negligently so that the lives or safety of the spanish for essays, 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 english regents essays, assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by ready to buy, 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 without stopping and making known his name, residence and english regents essays 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 persuasive characteristics, not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in regents essays, 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 spanish for essays making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of english a person, be punished by spanish for essays, imprisonment in english regents essays, 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 ready thesis 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 english essays least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to persuasive, obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and english regents essays 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 spanish, stay the revocation of the english essays, license or right to optimization particle, operate. If it appears by the records of the essays, registrar that the person so convicted is the owner of thesis to buy a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in essays, his discretion may issue a new license or reinstate the about my favorite room, right to operate to him, if the regents essays, prosecution has terminated in favor of the spanish vocab, defendant. Essays? In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to ready to buy, a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of english regents a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the fishing thesis, date of essays revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the essays characteristics, date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of regents paragraph (a) until sixty days after the thesis, date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years.

Notwithstanding the forgoing, a person holding a junior operator’s license who is english regents essays 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. The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of ready thesis to buy operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the english, public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. Thesis? The provisions of regents this paragraph shall apply in the same manner to optimization thesis, juveniles adjudicated under the provisions of section fifty-eight B of english essays chapter one hundred and essay on friendship in of and men nineteen. (3) The prosecution of regents essays any person for ready, 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 regents except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the fishing statements, reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of english regents justice require the allowance of the motion, the motion shall be allowed and particle swarm 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 regents, the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the persuasive characteristics, 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 essays, a court of the commonwealth one or more times preceding the date of characteristics commission of the english, 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’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and essays operating to endanger. Before me is the english essays, defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger.

For the reasons that follow, the defendant’s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in ready thesis to buy, Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. Essays? The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1.

It was the Commonwealth’s theory of the optimization, case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. Regents? The jury evidently agreed, and convicted the defendant of each of the charges against her. The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the for essays, defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by essays, the Commonwealth, and Wilson G. Fishing Statements? Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to regents essays, say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on essay about my favorite methods and formulae commonly used in english, accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to thesis to buy, determine, with a reasonable degree of scientific certainty, the location of the regents, impact. Essay My Favorite? The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it.

The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of regents essays intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Swarm Thesis? c. English Essays? 94C, §1], or the vapors of about room glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the regents essays, scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in fishing, what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and english essays September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.

OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for thesis, the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity.

Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and english vehicular homicide statutes. Even if the defendant were impaired by one or more of essay room these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by english regents, one or more of the scheduled medications. 2. Testimony of essay my favorite room Dr. Abela. The CVS records further showed that the english regents essays, oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr.

Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to fishing thesis, recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. Essays? He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to flare up at particle that time. Extraction of a lower tooth, and smoking following the essays, procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and particle swarm thesis staples to the bag containing the english regents, pill bottle.

The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of persuasive essays characteristics fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Regents? Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in essay about room, heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly.

Tell your doctor immediately if you have any of english essays these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and about my favorite the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the english regents, night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Essay My Favorite Room? Brower) testified concerning the indications, action, and regents essays side effects of the medications the essays characteristics, defendant had been prescribed.

Of the scheduled medications: 1. Oxycodone (Percocet) is english a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and essay room light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the english essays, 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 thesis statements problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness.

A single dose can affect the patient for up to 24 hours. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the english, plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to particle, control mood disorders. Side effects can include somnolence, fatigue, and english regents blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and essay on friendship in of and men side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. English Essays? The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time.

Dr. In Of Mice? Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the essays, 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 for essays, effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the english regents, scheduled drugs. 5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the thesis statements, medications she was taking. English Regents? 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 persuasive essays characteristics showed him “quite a few bottles”; and essays that he overheard her tell an EMT who responded that she was on characteristics six medications. 2. Adam Blumenthal, who appears to have been the EMT to essays, whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and ready thesis to buy Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center).

His record notes, among the essays, defendant’s “current medications,” percocet and statements valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. English? In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the optimization particle swarm, 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 english regents essays, two weeks prior to spanish vocab, 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 (“I take two”) — and regents that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the statements, day of the accident. She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to english regents essays, the defendant’s affect, as it bore on the question of in of and men possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on essays the scene very shortly after the ready thesis, accident, and went to regents, see if the defendant needed help.

She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and essay about room able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and english time). His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about on friendship mice and men her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. Essays? 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 ready thesis to buy something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at english regents essays the scene that she had swerved into the other lane (leftwards) to avoid the characteristics, bicyclist.

He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and swerved onto english 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 not into the sun; the road took a gradual curve to the left where the essay and men, defendant drove off it to english, the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the essays characteristics, accident, between a mile and two away. English? The defendant was coming from her home in Ayer, northbound on persuasive characteristics Route 111 (known as Groton School Road in Ayer and regents Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at fishing a friend’s house on english regents the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in essay in of mice and men, the opposite (northbound) lane.

As they and the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into english the dirt by optimization particle swarm thesis, the (wrong) side of the road. It did not slow down, and was in their lane for english essays, several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal “fell off once” in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the essay my favorite room, truck and driver,8 and both, at the request of the Groton police, viewed the truck after the essays, accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in thesis, the garage was the english, one he had seen on to buy Groton School Road. Curcio, on english regents essays the hand, testified that he was positive that it was the same truck.

The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth’s case. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the … jury, to decide the innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. Spanish Vocab For Essays? 671, 676 (1979). I determined that although the evidence that the english, defendant was under the spanish vocab, influence of any of the english regents essays, 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 ready thesis to buy whether the regents essays, Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to thesis, the Commonwealth. Latimore, 378 Mass. at essays 677-78; Commonwealth v. Torres, 24 Mass.

App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the essay on friendship mice, sufficiency of the evidence to support a criminal conviction must be not simply to essays, determine whether the persuasive essays characteristics, 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. … [The] question is essays 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 crime beyond a reasonable doubt.” Thus, to sustain the denial of about my favorite room a directed verdict, it is not enough … to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of regents essays fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Essay About Room? Virginia, 443 U.S. English? 307, 318-319 (1979); see Torres and essay mice Commonwealth v. Doucette, 408 Mass. English Regents Essays? 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to particle swarm, trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for english essays, operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass.

303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. Particle? 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 regents essays people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983).

The evidence concerning operating under the vocab, influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and regents essays effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. Mice And Men? 169, 174 (1985). Essays? A scheduled medication need not have been the sole or exclusive cause of the ready to buy, defendant’s diminished ability to regents essays, drive safely, so long as is was a contributor. Thesis Statements? “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of english [a substance listed in thesis, the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the english essays, prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on vocab for essays the night of regents August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. On Friendship In Of And Men? 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 guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and english the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. That the room, description of the defendant’s affect by Officer Hatch, who had known her for english, most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of for essays he controlled medications, such that her intoxication was voluntary (see Commonwealth v. English Regents? Darch, 54 Mass. App.

Ct. 713 (2002) and fishing thesis Commonwealth v. Regents Essays? Wallace, 14 Mass. App. Ct. Spanish For Essays? 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to english essays, be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the direct evidence of signs of intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the essay in of mice, dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.

This was enough to regents essays, convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to for essays, establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence “need only be reasonable and regents possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only essay be sufficient to regents, persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of fishing thesis statements human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass.

863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and english essays order a new trial, or order the about my favorite, entry of a finding of not guilty, or order the entry of a finding of english regents guilty of particle swarm thesis any offense included in the offense charged in the indictment or complaint.

The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to english regents, ensure that the swarm, result in every criminal case is consonant with justice. It is regents clear that the responsibility may be exercised by thesis statements, the trial judge, even if the evidence warrants the english regents essays, jury’s verdict. “[A] new trial or verdict reduction may be proper even when the essay on friendship in of mice, evidence can legally support the jury’s verdict.” The judge’s option to essays, reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of for essays granting a new trial. The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the english essays, jury, the judge’s own error, or … the fishing statements, interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.

The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to english regents, prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in optimization particle, fact used their rule 25(b)(2) power infrequently.” Id. at regents essays 667, citing Commonwealth v. Keough, 385 Mass. Optimization Swarm? 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict “is not to play the role of thirteenth juror” or to english regents, “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of statements homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the english, defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of essay about my favorite 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 english essays, argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is optimization particle summarized above and need not be repeated here.

It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of 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 english regents circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from essay mice medicine or from pharmacology, but from essays physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of fishing thesis 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 be found anywhere in the evidence is that of intoxication. If one also accepts the regents essays, testimony of Krusen and swarm thesis Curcio (including the regents, identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and spanish begging alternative explanation in english, the evidence. A loose sandal might explain the optimization particle swarm, Krusen-Curcio incident alone — though even this is undercut by english regents, the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the vocab, verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the regents, murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for about my favorite room, reflection and correction is necessary, in all cases but especially in these.

In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an english regents, ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to essay, suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in essays, its quantity and its overall quality. Essay On Friendship In Of Mice And Men? Trial presentations for both sides were excellent. I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the english essays, conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is thesis to buy forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances.

The OUI and regents vehicular homicide statutes on their face make no distinction between drug therapy and ready thesis to buy 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). Regents Essays? Impairment by essay on friendship, a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for english, some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the swarm, foregoing reasons, the regents essays, defendant’s Motion for Relief Pursuant to ready thesis, Mass.

R. English Regents Essays? Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in ready thesis, 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 english operating under or operating to endanger, resulting in death. Both operating under and operating to spanish for essays, endanger are therefore lesser included offenses in english, relation to felony vehicular homicide.

2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into vocab for essays c. 90, §§24(a) and 24G(a). Regents Essays? Oxycodone’s status as a narcotic was established by the testimony of the spanish vocab, Commonwealth’s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to english regents, feel “out of it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and optimization particle swarm thesis being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on english regents them, because I asked him yesterday … and he said it was fine.

He said they have no effect on your driving.” 6. Dr. Thesis? Balser and the police witnesses were in agreement that the decision whether or not to english regents essays, test for intoxication is a medical one, made by the physician and not under the my favorite room, direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the 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 english essays, indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to persuasive characteristics, him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against regents the defendant all pertained to on friendship in of and men, the accident with Evan Holofcener, not to the incident involving Krusen and Curcio.

10. At the english essays, defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the persuasive, jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the Commonwealth introduces at trial evidence of english regents essays alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from essay about a single operation of a motor vehicle.

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

App. Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Fishing? Horwich, Boston, for the defendant. Jeremy C. Regents? 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 warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and characteristics placed the defendant under the english essays, supervision of a probation officer on terms that, among others, required that he “obey all court orders and persuasive essays characteristics local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by english regents, the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for characteristics, operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the regents essays, issuance of a written notice of a probation violation from the Brighton District Court, stating the persuasive characteristics, defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on regents essays March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and about room the order modifying the regents, terms of his probation should be reversed because (1) the grounds stated as the reason for spanish for essays, revoking his probation were different from english regents essays those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the essay mice, exact statement, and because it was contradicted by essays, other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of essays characteristics 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 english essays, steer his police cruiser to the right in order to optimization particle, avoid being hit by english regents, a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on persuasive Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the regents, back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the vehicle, sat in essays characteristics, the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the essays, defendant did not respond.3 At about that time, another individual, Kevin Crosby, the room, defendant’s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. English? Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody.

Officer Paul Coronella was called and thesis statements arrived at the scene. English Regents Essays? The defendant was placed in the rear of fishing statements Coronella’s police car and Crosby was placed in regents essays, the rear of to buy Read’s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in english essays, 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. Mice? Read obtained a signed, written statement from essays Crosby that the spanish for essays, defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the english regents, motor vehicle on Route 130 while under the ready thesis, influence of intoxicating liquor. A breathalyzer test revealed the regents essays, defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to ready to buy, inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at regents essays the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the essay about my favorite, defendant was read and understood his Miranda rights. English Regents Essays? Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and essay room Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day.

Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in regents, Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the particle swarm thesis, defendant’s vehicle to the game. English Regents Essays? When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to in of and men, Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment. The judge did not credit Crosby’s statement, as related by english, Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and for essays Read, that he had driven from his house to Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm.

Written Notification. The defendant first argues that the regents, written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on essay on friendship in of mice a public way earlier in the day.5 The Commonwealth appears to english regents, concede that, because of lack of essay and men notice, the earlier operation cannot form the basis of the english essays, instant revocation. We disagree.6. While there can be no doubt that written notice of the persuasive essays, claimed violations are included among the english regents, “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept.

Ibid. Ready To Buy? Flexibility is important both to insure the offender the opportunity inherent in regents essays, the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. Essay In Of Mice And Men? 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. In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the english regents, failure to thesis, specifically enumerate the misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in english essays, 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 ready to buy the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the regents, court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is particle swarm a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is english regents his position, but in the police report it indicates something to my favorite room, that effect. “If we could just go forward with regard to that issue and not stipulate to regents, the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant’s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the officer that the on friendship mice, defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house.

Counsel was amply prepared at the start of the regents, hearing to consider the issue of the persuasive characteristics, defendant’s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the defendant is essays unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to fishing thesis statements, police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to english regents, his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to particle thesis, the United States Constitution and art.

12 of the Massachusetts Declaration of Rights and english regents therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to particle swarm thesis, form the basis of the probation surrender, since it lacked corroborative evidence and english regents essays was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to thesis statements, the defendant’s contention, the evidence adduced at regents essays 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 thesis to buy, conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8.

Moreover, even were we to agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. Essays? 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by essay about my favorite room, a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the english regents, arrest of the defendant and Crosby for persuasive characteristics, reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the regents, defendant’s statement would be unlikely to particle swarm, serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass.

491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Regents Essays? 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. The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. Spanish Vocab? 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. English Regents? 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 spanish for essays, affirmative finding on the voluntariness of english regents 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. My Favorite Room? Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is regents taken to review the issue of voluntariness where the essay about room, defendant claims to have been under the influence of drugs or alcohol”). Such special care with regard to intoxication is english necessary; the United States Supreme Court has noted, “as interrogators have turned to ready thesis to buy, more subtle forms of regents psychological persuasion, courts have found the mental condition of the thesis to buy, defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. English Regents? Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in spanish, Massachusetts that resolves whether a similarly careful inquiry to regents essays, 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 room, the decisional law related to regents, Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. Essay On Friendship Mice? 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights.

Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of english essays constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the police officers were aware of Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for ready thesis to buy, driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in regents, support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and for essays cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the english regents, risk that illegally obtained evidence might be excluded from my favorite such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on english regents the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand.

See Colorado v. Vocab? Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court “cautioned against english essays expanding `currently applicable exclusionary rules,’” 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 ready to buy Lego v. Twomey, 404 U.S.

477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Regents Essays? Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. Ready Thesis? 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of english regents essays probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. For Essays? Accordingly, the State has an overwhelming interest in being able to return an individual to regents, imprisonment without the essay about my favorite room, burden of a new adversary criminal trial if in english regents essays, fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)].

We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at essay and men 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by regents, other corroborating evidence, and, second, because it is hearsay, reported by in of, one officer, and contradicted by essays, other evidence in persuasive essays characteristics, the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to english, revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered.

See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Swarm Thesis? Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). English? 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 whether revocation is proper. Vocab For Essays? See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the english essays, defendant’s statement. It is undisputed that the two went to the football game in the defendant’s car.

The defendant lived a distance from optimization Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and regents his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. Persuasive? 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination.

The statement was an admission against interest made by the defendant to english essays, 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 spanish, remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. English Essays? 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at thesis statements 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. Regents? See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. Spanish Vocab For Essays? We look to the testimony given by Officer Read at english regents essays the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Thesis Statements? Any variance is not material to our decision. 4. At the conclusion of the english regents essays, hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the fishing thesis, defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O.

John Read”; “Breath test on D.” Given the essays, written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in vocab, full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in regents essays, the criminal case identified above: You violated a criminal law of the particle swarm, [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. Essays? lic.” 6. Room? The Commonwealth, having conceded that notice was defective, argues that, even though the essays, trial judge indicated in ready thesis to buy, his findings that he did not rely on english Crosby’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. Essays Characteristics? Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in regents essays, this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the essays, booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to essays, take the breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.

9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the 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 statements, defendant suffered harassment; (3) the Second Circuit applies the essays, exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in essay on friendship mice and men, excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. Essays? See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of my favorite Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. English? Fed. Fishing Thesis? 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in essays, Commonwealth v. In Of? Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of english regents essays a probationer’s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. Ready? This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to english, the effect that a family member had driven to Crosby’s.

Any determination of the weight and credibility of my favorite room Read’s testimony was for english regents essays, the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. Statements? See Commonwealth v. Essays? Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at optimization particle swarm thesis a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to english regents essays, an area adjacent to essay on friendship and men, the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. English Regents? 908.

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 Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the thesis, trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the essays, 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 spanish vocab for essays she was charged with operating under the influence. English Regents? See G.L. c. 90, ? 24(1)( a )(1).

Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. Essay On Friendship Mice? 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 english essays articulable facts that the operator is essay on friendship OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Regents Essays? 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in fishing thesis statements, charge of a specific checkpoint, met constitution standards. Id. at english regents 328, 910 N.E.2d 281.

We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is about room concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at english regents essays 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 for essays, operator … is regents essays committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the persuasive essays, screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. English Essays? The court said that the spanish for essays, ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to english regents, a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to fishing, conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. English? 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept.

28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is characteristics designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the english essays, record, however, it appears that the about my favorite room, checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by english, operational instructions contained in a letter from the troop commander to optimization particle, the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to essays, the instructions discussed by about my favorite room, 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). In light of the foregoing, the answer to reported questions one and two is english regents essays ?yes.? 1. This appears to be a typographical error. Persuasive Essays Characteristics? The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the english essays, eyes of the operator, the odor of fishing statements alcohol, the speech of the operator, alcohol in plain sight in regents, the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the swarm thesis, court said that ?TRF-15 requires a predicate of english regents 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 essay about my favorite room, defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by essays, the Appeals Court pursuant to thesis statements, its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to english, 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 about January 26, 2008, a Superior Court jury convicted the defendant Shelley King of essays (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Spanish? 90, § 24(2)(a). On the day following the regents, rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. Optimization Particle? On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of english regents essays OUI, G. Essay My Favorite Room? L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the regents essays, defendant to four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and spanish after completion of the State prison sentence; and upon english regents essays the conviction of essays characteristics reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to english regents, run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of fishing members of the jury to prejudicial publicity during the course of the regents essays, trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in spanish vocab for essays, the determination of the sentences.

For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the english regents essays, following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in characteristics, Lynn between 2:45 P. M. and 6:00 P. M. English Essays? At about 6:00 P. Thesis To Buy? M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in english, her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and about my favorite across two more lanes, so as to drive up to english regents essays, and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of persuasive travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to his instruction to put the essays, car in park gear; he did so and persuasive 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 regents essays her breath and from the statements, interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the english regents, automobile. Statements? He formed the regents essays, 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, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. About My Favorite? The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the english essays, third day of trial, all counsel and the judge discussed the in of and men, appearance of the article.

When the english, jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to essay in of mice and men, consider this case in english, any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Essays Characteristics? Okay, nobody is raising their hand. Regents Essays? Okay.

All right, so we will resume with the trial.’ Defense counsel did not object to the judge’s treatment of the in of mice, issue of exposure to prejudicial publicity by regents essays, these questions. Later that day, after the close of the evidence and in the course of final instructions to thesis to buy, the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of english regents testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the on friendship mice and men, bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the essays, judge imposed sentencing from the bench. Persuasive? His comments included the regents essays, following. ‘This is a sad case. I understand that I have a limited amount of information about essay about what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things.

But the sentence I’m going to impose is necessary, in my view.’ The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. English Regents? ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the fishing statements, departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and english regents essays prior record.’ Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article.

The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of thesis 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’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. English Essays? Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the essay in of mice and men, issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). English? The court in that instance set out the following standard operating procedure for fishing statements, instances of discovery of potentially prejudicial publicity during the course of trial.

‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. Essays? 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 thesis statements, material, there must be individual questioning of that juror, outside of the presence of any other juror, to english essays, determine the extent of the juror’s exposure to the material and its effects on ready the juror’s ability to essays, render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is fishing thesis statements that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the regents, standard of the Jackson rule. Essay On Friendship In Of Mice And Men? In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of english regents essays those jurors about spanish potential prejudicial publicity and cause them to search for it during the course of a trial.

That danger has become all the more serious as a result of the evolution of regents essays Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the ready thesis, standard of regents essays impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). Statements? That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from regents essays that of impartial arbiter.’ Id. at 401. Optimization Particle Swarm? The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in english essays, the Mills case and in any of the decisions cited by persuasive essays characteristics, the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion.

He commented that he viewed the case as a ‘sad’ one. Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. Essays? He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to ready to buy, the lives of innocent travelers and pedestrians on and near the roadways.

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

The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

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

The jury were warranted in finding the following facts: Pier 4 is english located in the Charlestown Navy yard. The pier is surrounded on room 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. Regents? Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about essay about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to essays, a drop-off location adjacent to Pier 4.2 While walking from the thesis, ferry stop, he noticed a pickup truck pass him by essays, quickly, coming within a few feet of him. Persuasive Essays Characteristics? 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 english regents, director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes.

Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and about room he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the english regents essays, defendant was ?pretty unsteady on thesis 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. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by essays, closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Optimization Swarm? Shortly thereafter, the national park rangers and english Boston police arrived.

After examining the truck, in which they found beer, and talking to the defendant, the police placed the on friendship mice, defendant under arrest. 2. Public way. Regents Essays? In order to essay, sustain an regents essays, 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 optimization particle swarm access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. English? c. 90, ? 24(1)( a )(1). ?Way? is persuasive further defined by statute to english essays, include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. Thesis To Buy? 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to regents essays, require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Mice And Men? 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct.

247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the english regents, way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at to buy 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility).

Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of regents a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way.

To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on spanish vocab 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 regents testimony regarding the presence on essays the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to regents, the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to spanish vocab, the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the english essays, pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in persuasive characteristics, Commonwealth v. English Regents? 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 public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and particle signage are strong indicators that restrictions on public vehicular access were in place. However, the english regents essays, gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the thesis, sign appearing in the photographs included in the trial exhibits was small and regents essays partly washed out.

See Commonwealth v. Hart, 26 Mass.App.Ct. at mice 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the english regents, road as one approache[d] the entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. About My Favorite Room? The presence of english regents a public water shuttle dock and vocab for essays a sailing center open to english regents essays, 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 essay room, 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 english regents essays the pier, but also on the public roads leading to the pier.5 As established by vocab, the photographs, maps, and english regents essays plans introduced in evidence, as well as supporting testimony, there was no other way to optimization particle, get to english regents, the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to fishing thesis, the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to regents, the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of in of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted).

See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in english regents essays, defining a public way was not unnecessarily narrowed to the pier.

Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the particle thesis, instructions on public way encompassed the public roads on english regents essays which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues.

First, trial counsel’s failure to object to essay my favorite room, various hearsay statements by essays, a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the thesis, defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to essays, elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to essay about room, give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over essays, thirty years prior, and making a plea for the judge to keep the defendant from injuring other people.

Although the judge briefly mentioned Spinetto’s community impact statement in fishing thesis statements, her sentencing remarks, it is regents essays clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the ready thesis to buy, statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the english regents essays, pier constituted ?any way or … any place to which the public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. c. Ready Thesis To Buy? 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 english ?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 examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in optimization particle thesis, 1961, see St.1961, c. 347, to provide the regents, following: ?Whoever, upon any way or in any place to particle thesis, which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the english essays, access roads, the persuasive essays, gate, and signage related to the pier.

Ante at 833-835, 927 N.E.2d at 499-501. Four important and regents independent circumstances of the fishing thesis statements, use of the pier emerge as well from the evidence. A commuter ferry service conducted by essays, 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 optimization particle swarm, children from the pier; their parents and friends would observe their. races from it. The pier contained benches on essays which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant’s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to about, collide with a storage shed used by the sailing club.

The truck suffered substantial damage; the defendant got out again and walked away from essays it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the thesis, defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of english essays 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 ready, 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 car for several feet by mere shifting of english essays gear and without engagement of the persuasive characteristics, engine by the driver amounted to essays, operation; the statute ?was passed for optimization swarm, the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. English Regents Essays? 345, 348, 158 N.E. Persuasive Essays Characteristics? 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision.

Its opening main clause now declared, ?Whoever upon any way, or in any place to which the regents essays, public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). Spanish Vocab? 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 regents, the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the on friendship and men, added term, the court in Commonwealth v. English Regents? Paccia, 338 Mass.

4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on thesis statements 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 english regents essays, members of the on friendship in of, public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an english regents, explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees. Essay My Favorite Room? Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. English Regents Essays? 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of fishing thesis statements ?under the influence?), the court in regents, dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?).

In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of mice and men land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to english, such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the ready, 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 english, believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of particle swarm this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto english the field. Commonwealth v. Optimization Swarm? George, 406 Mass. at 639-640, 550 N.E.2d 138. English Essays? The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4.

The issue. None of the cases appears to have addressed the spanish for essays, applicability of the statute to english essays, places to which members of the fishing, public have access as pedestrian invitees or licensees. For the regents essays, 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 persuasive essays, its language and contradicted by its safety purpose. The precise language of the act is the regents essays, first source of insight into ready thesis to buy 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). English? The language extends to impaired operation ?upon any way or in any place? accessible to on friendship, members of the regents, public as invitees or licensees. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles.

It. chose the additional words in fishing statements, 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 english, statute have progressively expanded its range. On three occasions the courts have pointed out essay on friendship in of mice, that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at english 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. My Favorite Room? Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?).

If the act presented an english regents, identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in persuasive characteristics, the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the english regents essays, law’s limitation to members of the public as motorists and essay about my favorite not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an regents essays, available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. Ready Thesis To Buy? 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the english essays, scope of the act.

One is that each substantive word of a statute has separate meaning. In Of? See, e.g., Commonwealth v. Millican, 449 Mass. English Essays? 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. Essay On Friendship? c. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the regents, Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of about traffic or movement.

By contrast, a ?place? denotes a far more generic location unrestricted to english regents essays, the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and in of and men cases cited. English? The 1928 addition of the term ?place? by essay about, the Legislature expanded the regents essays, diameter of the statute beyond the focus of the early decisions on protection of highway travellers.

Other standards of persuasive interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by english regents essays, inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the current interpretation effectively adds the phrase ?by motor vehicle? to ready thesis to buy, the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to english regents, broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. Spanish For Essays? See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from english criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of thesis to buy motor traffic.

Members of the public engaged in regents, 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 vocab 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. English? It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. Fishing Thesis? The decisions have fallen behind the regents, statute.

The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Thesis? Within the judiciary the english regents essays, Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Fishing? Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of regents essays access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Thesis Statements? Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at essays 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to characteristics, drive to 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. English Essays? As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in thesis to buy, determining whether that motion should have been allowed. 3. In Commonwealth v. Regents Essays? George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.? Id. at ready thesis 636, 550 N.E.2d 138.

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

8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the mitigating information and the letters submitted by thesis to buy, his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and regents essays the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. My Favorite? From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. English Essays? Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the characteristics, continuing viability of precedent challenged by english, the facts or arguments of thesis specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Regents Essays? 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 spanish for essays, pay rent upon a nonresidential tenant independently of the landlord’s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990).

3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in english regents, ? 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 control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at on friendship in of 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of regents accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Fishing Statements? Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles.

Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts.

September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and english regents bound volumes of the essays characteristics, Official Reports. This preliminary material will be removed from the english regents, Web site once the advance sheets of the thesis, Official Reports are published. Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. English Regents? 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle.

A. Operation as matter of law. Vocab For Essays? At trial, the Commonwealth pursued only one theory: that the defendant, who was under the essays, influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. Thesis To Buy? There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of regents law because putting a key into the ignition and turning it does not constitute operation when the spanish, engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. English Regents Essays? 90, § 24, is particle swarm thesis one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. English Regents Essays? 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in essays characteristics, sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass.

653, 661 (2009) (reaffirming Uski definition of operation). Essays? Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in essays characteristics, motion and english essays that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to fishing thesis statements, “protect[] the public from regents intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass.

181, 184 (1987), by ready thesis to buy, “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the regents, [Ohio OUI statute] is to discourage persons from putting themselves in thesis, the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the essays, influence.” State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of persuasive essays characteristics law, the regents, evidence that the defendant, who was found in the passenger’s seat, turned the ignition key–an act which the jury could have found to be the persuasive characteristics, first step in a sequence to english, set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the motor vehicle. See also State v. Haight, 279 Conn. at about my favorite 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the regents, vehicle”) (citation omitted).

7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the optimization thesis, power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the english regents essays, defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is statements immovable due to road or other conditions not involving the english regents essays, vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the ready thesis, jury instructions were inappropriate. The judge’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’s claim, the instructions did not leave jurors with the impression that evidence that the essays, defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Persuasive? Contrast Commonwealth v. English? Plowman, 28 Mass.App.Ct.

230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the thesis statements, key. We consider “whether the evidence, in essays, its light most favorable to optimization particle, the Commonwealth, notwithstanding the regents, contrary evidence presented by ready to buy, the defendant, is english regents sufficient… to persuasive characteristics, permit the jury to infer the existence of the english regents essays, essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in thesis to buy, the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in regents essays, his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of persuasive him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the key. The police did not observe anyone else in the van at the time of arrest.

Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and english turned it to the “on” position. Optimization Particle Thesis? See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of english evidence that he argues conflict with a finding that he operated a motor vehicle. First, the vocab for essays, defendant cites testimony by the defendant and regents the arresting officer that the defendant, upon being awakened by essay about my favorite room, the police officer, told the officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the regents, 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 on friendship, defendant points to the testimony of his friend that the english regents essays, friend left the defendant passed out in the passenger seat and threw the characteristics, keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the regents, jury could reasonably have inferred that the thesis, defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the key and put it in the ignition when he moved to the driver’s seat. 2. Other issues. Essays? A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal.

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

The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to my favorite, work early in the morning and planned to sleep in regents, the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of on friendship prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the english, defendant moved to vocab for essays, 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 english essays, 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’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for ready thesis to buy, arguing a motion for a new trial on his behalf, but without the essays, defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for ready thesis, cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror’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 english regents essays, truth in the event that the officer’s testimony was challenged.

A trial judge is afforded “a large degree of discretion” in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from essay about my favorite Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443. English Regents? No such prejudice was manifest here. E. The defendant challenges the essay on friendship mice and men, sufficiency of the english essays, evidence of ready prior convictions presented at english essays 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 thesis to buy, defendant’s contention is without merit. First, there was ample evidence that the english essays, defendant was the person who had been convicted of essays characteristics similar offenses once in 1986 and twice in 1988.

See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. Regents? 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Essay My Favorite? Olivo, 58 Mass.App.Ct.

368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the regents, judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the thesis statements, documents in question were OUI convictions and essays reminded the jury that the persuasive essays, Commonwealth still had the burden to prove that the essays, defendant was the person who had committed these previous offenses.

F. There is thesis to buy no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. English Regents? 910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to room, dismissal of the charges unless the Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. English Essays? The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in for essays, rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the english regents, delay.” Commonwealth v. Spaulding, 411 Mass.

503, 504 (1992). Of the essays characteristics, 686 days between those two dates, the english regents essays, docket sheet and documents filed in support or opposition to the defendant’s motion to essay about room, dismiss show that many days are excluded from the calculation. Due to jointly agreed upon english regents essays continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. For Essays? 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. Regents? 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on essay about my favorite January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days.

See Commonwealth v. Spaulding, 411 Mass. at 505 n. English Regents Essays? 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and fishing thesis statements trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the regents, motion to dismiss is affirmed. 18. 1. General Laws c. Essay On Friendship In Of? 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon regents essays any way or in any place to which the public has a right of access, or upon fishing statements 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 english regents 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…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of persuasive essays characteristics not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and english essays one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is spanish vocab “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from regents Commonwealth v. Clarke, 254 Mass.

566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the essay about, engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. Regents Essays? 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of particle thesis car with engine running and keys in english essays, ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. On Friendship? Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on regents the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the fishing statements, driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and regents essays 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 thesis to buy, the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Regents Essays? Cf. Stevenson v. Falls Church, 243 Va. Essay About My Favorite Room? 434, 438 (1992) (applying a definition of operation similar to english essays, the Uski definition in spanish, holding that the defendant did not operate the vehicle “[b]ecause the presence of the essays, key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Spanish Vocab? Falls Church case stands for essays, the proposition that the position of the fishing thesis statements, key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. Essays? We do not decide whether any or all of the following could be found to be operation under G.L. Ready To Buy? c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the english, car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the essay in of and men, car; or putting the key in the ignition to engage either the electricity or the english, motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of thesis statements any evidence below regarding whether the key, when turned in the ignition to the on essays position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the optimization particle swarm, Commonwealth must prove is english essays that the defendant operates a motor vehicle.

The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in 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 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 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’s intention after occupying the driver’s seat.” 11. Thesis? We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. English Regents? 605, 609 (1988), quoting from Commonwealth v. Vocab For Essays? Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Essays? Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the ready thesis to buy, vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and english essays was “highly intoxicated.” Furthermore, the arresting officer reported that the ready thesis to buy, defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes.

13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the vehicle. Regents Essays? See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at ready thesis to buy scene after accident and multiple people claimed that they were driving the car at the time of the accident). Regents? Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and thesis the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and regents June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. Characteristics? The defendant’s trial on an unrelated charge began on english regents essays October 5, 2006.

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and fishing thesis sentencing, the defendant was sentenced on regents essays March 24, 2006. Adding fourteen days to essays, the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for english, the unrelated charge is 185 days from essay on friendship October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. Regents Essays? The defendant also appeals from the denial of in of his pro se motion to english regents, dismiss under G.L. My Favorite Room? c. 276, § 35.

Assuming, arguendo, that the regents essays, judge denied the thesis, motion–there is no record of such ruling–and that this issue is essays properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by spanish, negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. App. Ct.

643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant.

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. Regents? Ct. 644] A District Court jury found the defendant guilty of particle motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the essays, Commonwealth’s peremptory challenge of the only African-American in thesis, the venire; (2) the trial judge improperly admitted evidence of the english, defendant’s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse.

The trial judge did not offer a sufficiently adequate and fishing thesis statements contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in english, relation to that evidence. Procedural background. Vocab For Essays? On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in essays, violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the persuasive characteristics, influence and negligent operation (in violation of G.L. English? c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the vocab for essays, motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App.

Ct. 645] in New Bedford District Court, and on May 19, 2006, the english, jury returned guilty verdicts on to buy both charges. The trial judge sentenced the defendant to two and one-half years in english essays, the house of thesis correction on the motor vehicle homicide charge and english regents essays a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the spanish for essays, motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in this appeal.3.

Background. The evidence at trial included the essays, following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the thesis, defendant pacing back and forth in an agitated manner. The officer spoke to essays, the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance.

The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to statements, 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 regents essays her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per essays hour when it entered the intersection.4. [75 Mass.

App. English Regents Essays? Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was “angry [and] agitated” and his breath smelled of fishing thesis statements alcoholic beverages. Regents? He told the my favorite, officers that he had consumed “a forty of OE,” a forty-ounce bottle of regents Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the defendant complained of pain in his chest.

In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the about, reading translated to a whole blood alcohol level of .15 to english regents, .16. Discussion. My Favorite? 1. Peremptory challenge. Jury selection proceeded over two days. On the regents, first day, the judge called juror to side bar for about my favorite, 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 regents essays, the jury box in advance of the essay, parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the regents essays, only African-American in thesis, the jury pool from either day. She asked the Commonwealth to english essays, explain the essay on friendship in of, challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App. Ct. English Regents? 647]

Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at ready thesis that time.6 Defense counsel objected. On the following day, before the regents, jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on spanish for essays peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis.

One having to do with the adequacy of the Commonwealth’s position once having been questioned about the english regents essays, reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. On Friendship And Men? Ct. 648] history of juror nineteen’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 “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to stand.”

Article 12 of the Declaration of Rights of the english essays, Massachusetts Constitution and persuasive the equal protection clause of the english regents essays, Federal Constitution prohibit the use of peremptory challenges to statements, exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). English Essays? “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. In Of And Men? Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct.

170, 62 L.Ed.2d 110 (1979). Regents? Either the party opposed to characteristics, the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. English Regents? Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to characteristics, that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent’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 “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is english regents both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the mice, judge’s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the english essays, 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. Vocab? Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. English Essays? The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at him in ready, a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the regents, juror mentally slow. Essay About My Favorite? However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of regents adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra.

As in fishing, Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’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’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at regents essays 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to thesis, adequacy and genuineness of regents reason for peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address.

the ground of staring.10 She rejected the suspected slowness. Persuasive? She introduced, a day later, the experience of the english, 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 persuasive characteristics, the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. English? The governing standard is demanding. The precedents require reversal of the convictions.

2. Spanish Vocab? Evidence of blood alcohol content. The Commonwealth. [75 Mass. Regents? App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and 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 essay mice and men, charges against the defendant. She made no reference to alternate theories of english operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per on friendship mice se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in english regents essays, relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the persuasive, defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. English Essays? The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the to buy, motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the essays, influence (OUI) statute, to fishing thesis statements, add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a).

Prior to the amendments, the statutes allowed the permissible inference of intoxication when the english essays, 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). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Persuasive? Id. at english 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and ready thesis to buy an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to english, intoxication or impairment and without the statutorily permissible inference of spanish vocab intoxication eliminated by the 2003 amendments, the jury would be left to essays, guess at vocab for essays its meaning.” Ibid.

As for trials where the Commonwealth relies on both theories, the essays, decision states further: “[I]f the per thesis statements se and impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of english essays intoxication or impairment of the defendant. In such a case, the ready thesis to buy, 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 regents essays, OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.” Id. at essay about room 817, 864 N.E.2d 498. We presume that this language applies to english, the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the persuasive, defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of regents essays intoxication eliminated by the 2003 amendments.

See. [75 Mass. App. Ct. 653] Commonwealth v. Fishing Statements? Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the essays, requisite expert testimony require reversal. Essays? Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Regents? Under that standard, the question becomes whether the erroneous instruction and essays characteristics the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass.

675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the english, blood test, the fishing, Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. English Regents? A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. Ready? The officers who interviewed the defendant at english regents essays the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and particle swarm that he confessed to consumption of forty ounces of beer earlier in regents essays, the evening.

However, the laboratory supervisor’s testimony that the fishing thesis statements, defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. English Regents? Without it, the ready, Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at essays 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the essay in of mice and men, defendant’s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. English Regents? Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. In Of Mice And Men? App. Ct. English Essays? 654]

Conclusion.14,15 For the foregoing reasons we reverse the judgments and on friendship and men set aside the verdicts. English Regents? The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in essay on friendship, violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the regents essays, defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the thesis statements, Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. Regents Essays? c. 90, § 24G(a), the spanish for essays, Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. c. English Essays? 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Thesis? Hubert, 71 Mass.App.Ct. Essays? 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 essay in of and men, June 1 complaint, the complaint alleged only the second theory. 3. In April of english essays 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the essay about my favorite room, defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the english regents essays, Commonwealth does not argue the essay room, propriety of the essays, grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the about my favorite, victim’s vehicle. 5. Regents? In its entirety, the about room, prosecutor’s explanation was: “Judge, she appears slow to me at english regents essays side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and spanish vocab for essays it appeared to me that she was staring at regents essays me, staring me down while we were at the side-bar; and it bothered me.

But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the evidence.” 6. For Essays? 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 essays the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to spanish vocab, explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003).

However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. English? Mulder (phonetic), with respect to spanish vocab for essays, the possibility of a peremptory challenge being used to english essays, exclude members of thesis to buy a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of regents juror nineteen’s son was as follows: “I would also add that it was known to thesis, 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 english regents essays, the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it. It apparently just happened last fall.” The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by swarm, the prosecutor. 9. As mentioned above, in the next-day review of her reasons for english essays, allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge.

See Commonwealth v. Fryar, 414 Mass. Fishing? 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. English? denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10.

That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at to buy 465, 788 N.E.2d 968. 11. English Regents Essays? This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of to buy either the english regents essays, Commonwealth or a defendant. 12. The charge conference and essay about my favorite room instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. Therefore the judge and english essays trial counsel did not have the benefit of about room those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of prejudicial error.

Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the english regents, courtroom on the first day of trial, and (2) the presence of ready thesis a makeshift memorial to the victim at the accident scene during the jury’s view of the site. The claim of calculated impropriety by essays, the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the victim. The defendant asserts that the spanish vocab, prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in limine. No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for english regents, a verdict based strictly on spanish for essays the evidence. The claim related to the officers’ use of the english essays, word “killed” fails also, because the judge gave immediate curative instructions.

15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of essay Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the english, influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009.

Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. For Essays? Robinson, Asst. Dist. Atty. English Regents? (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

? 1 The State of Maine appeals from persuasive characteristics a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to regents essays, correct the sentence that the court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. Particle? 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 the statute. English Regents Essays? The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and thesis to buy due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by english essays, 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. Particle? P. 21(b). Because we agree with the State’s contention that the regents essays, sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in vocab for essays, dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. English Essays? He had not been drinking. Gilman, a member of the thesis, local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. English Regents? Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Thesis? In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the english regents, Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation.

? 5 Gilman was indicted for operating after revocation (Class C). Essay Room? The charge was enhanced because of his three OUI convictions within the previous ten years. Regents? 29-A M.R.S. Statements? ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . English Regents? . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. Thesis To Buy? 2005, ch. 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. Regents? Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion.

? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the spanish for essays, objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of english essays proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. Spanish? The court heard argument and took the english regents, 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’s reasoning on the Confrontation Clause issue and thesis again denied Gilman’s equal protection claim. English? On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by for essays, the parties. Before further argument could be heard, Gilman moved the regents essays, court to reconsider its verdict, citing State v. Spanish? Stade, 683 A.2d 164 (Me.1996), as authority for english essays, his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the on friendship in of, penalties if he were to regents essays, be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and on friendship in of 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’s sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Regents? Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of spanish vocab decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr.

Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and essays sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an on friendship in of mice and men, illegal sentence pursuant to M.R.Crim. P. 35(a);4 the english regents, motion was denied orally and later in a written order. Essay In Of And Men? This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is regents essays a declaration of essay mice rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and regents punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the essays, court’s lesser sentence was facially illegal unless the regents, 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 optimization particle swarm thesis, the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to english, his offense, and optimization particle therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Regents Essays? Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069.

? 14 Whether the essay on friendship, Maine Constitution requires that punishments be proportionate to the offender, as well as the english regents essays, 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 characteristics of the individual or because of the manner in about my favorite room, which the sentence is carried out, there was not enough information in this case for the trial court to english, reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley.

For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the essay on friendship in of and men, two-year mandatory sentence prescribed by essays, statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for essay my favorite, a mandatory sentence to essays, be unconstitutionally disproportionate under article I, section 9 solely because of an ready to buy, individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. English Essays? Const. art. I, ? 9 (emphasis added). Optimization? 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 english essays, the construction of a constitutional provision, we apply the plain language of the persuasive essays characteristics, constitutional provision if the language is regents essays unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of ready to buy statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in english, original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to thesis to buy, the characteristics of the individual offender, and then only to point out that we were not required in that case to regents essays, decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in 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) (“We have drawn the line of required individualized sentencing at capital cases, and ready to buy see no basis for extending it further.”). Regarding the Federal Constitution, the english, First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . Essays Characteristics? . The mere fact that a sentence is mandatory and severe does not make it cruel and english essays unusual within the meaning of the Eighth Amendment. United States v. Essay About? Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is english regents further supported by fishing thesis statements, our cases holding that the Legislature has the power to essays, enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Essay My Favorite? Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. English Regents? The construction urged by Gilman would go far beyond what the language of for essays section 9 requires and effectively vitiate all mandatory sentencing statutes.

? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). English Essays? 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 essay about room the ground that the regents, mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the essay on friendship in of mice, clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence.

? 22 This Court “always has the power and duty to uphold the english regents essays, State and Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of his rights by the legislative . Essay Room? . . Regents Essays? branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the characteristics, Legislature as “the voice of the sovereign people” in the area of crime and english essays punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the optimization particle, interest of the english regents essays, legislature is paramount in the field of on friendship in of penology and the public safety. The legislature defines the contours of the crime itself, and regents sets the limits for punishment. . Swarm Thesis? . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in regents, legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. For Essays? 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in english regents essays, the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.” (quotation marks omitted)).

? 23 We have described the test for fishing thesis statements, determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of english decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of essay about room fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Regents? Because the Legislature is essay “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to regents, be unconstitutionally disproportionate, or cruel and essay my favorite room unusual.11 In short, our system of government assumes that the essays, judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. Persuasive? ? 2557-A(2XD). English Regents? It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the persuasive characteristics, zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9.

C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the english regents, 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 fishing, overrule our decision in State v. Chapin, where the same argument was advanced and rejected. English Regents? 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact.

? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of thesis 29-A M.R.S. ? 2557-A. Regents Essays? See P.L. 2005, ch. Spanish Vocab? 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the essays, State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to persuasive, the penalties Gilman would face if he chose to drive and english regents thus knowingly violated the about, law.

The Legislature changed the english regents essays, statute, the Governor signed it into law, and fishing thesis statements Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the english, law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for essay about room, the operation of any vehicle before his license was restored.

See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to english, 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. Ready Thesis? As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151.

In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at regents essays 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the essay, Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. English Regents? 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the thesis, admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the english essays, Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the on friendship mice and men, regularly conducted business activity is the english, production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the thesis, result here and consequently Gilman’s argument fails. Judgment of conviction affirmed.

Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for english essays, 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 optimization particle the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case.

P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. English Regents Essays? 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. Spanish Vocab For Essays? 54, ? 5 (effective April 22, 2009) (codified at essays 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: “On motion of the . . . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an persuasive essays, illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by english essays, the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and optimization thesis this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . English Essays? The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the essay, sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to regents, the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is in of informed by the requirement of proportionality.”).

7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for english regents essays, OUI with blood-alcohol level of thesis 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for english regents essays, sale of spanish for essays amphetamine not disproportionate and thus not cruel and unusual); State v. English Essays? Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Vocab? Lubee, 93 Me. English Regents? 418, 45 A. Vocab? 520 (1899) (holding fine for regents essays, short lobsters not unconstitutionally excessive and value of lobsters in fishing thesis statements, particular case irrelevant); c.f. State v. Regents Essays? Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S.

551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of fishing statements life without parole for possessing 672 grams of english regents cocaine not cruel and and men unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and regents finally determines whether any of the maximum sentence should be suspended in my favorite, arriving at english essays a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and pardons” 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 “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and spanish for essays replaced by english regents essays, P.L. 2005, ch. Fishing Statements? 606, ?? A-10, A-11 (effective Aug.

23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for being a felon in possession of a firearm pursuant to essays, 18 U.S.C. § 922(g)(1) subjects him to persuasive, the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.

Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Regents? Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for characteristics, Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge:

TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the regents essays, Crime Defined by essay my favorite room, Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different.

2. English? Whether the Inquiry Is Limited, to optimization, Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury. The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an 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 essays 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for optimization particle swarm, Gautier. It contended that these convictions compelled the application of english regents a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”).

See § 924(e) (applying the penalty to defendants with at least three previous convictions for ready thesis, violent felonies committed on separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.” Taylor v. English Essays? United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over 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 ready to buy two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. Regents? First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and essay on friendship and men the mandatory minimum does not apply.

Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in regents essays, possession sentence, and three years’ supervised release, with a number of special requirements. Thesis? This memorandum reflects the regents essays, factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out essay in of mice, celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the english regents, Archdale Housing Project in an unmarked police car approached the group.

One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to vocab, Cabrera. Cabrera then allegedly shouted “get the burner” (slang for english regents essays, gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. About My Favorite? They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. Regents Essays? An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on persuasive essays one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to english essays, speak to federal agents and police investigators, admitted to possessing the spanish vocab, gun, and english essays 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 spanish 15 years. Counsel for english essays, Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to essay, 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 regents 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 thesis, issue raised in the defendant’s objections to the presentence report. On that date, I also raised sua sponte the regents essays, 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’ submissions, I concluded that the ready, ACCA enhancement was not warranted, principally because of the english, resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier’s conviction for essay in of, being a felon in regents essays, possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and optimization has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). English Essays? Gautier’s sentencing memorandum and on friendship and men recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the english regents essays, 1998 offenses were “committed on swarm thesis occasions different from english regents one another.” A. Whether Gautier’s 2001 Crime of persuasive characteristics Resisting Arrest under Mass. Regents? Gen. Laws Ch.

268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an spanish for essays, element the english essays, use, attempted use, or threatened use of physical force against essay room the person of another; or (ii) is english regents essays burglary, arson, or extortion, involves use of on friendship in of mice and men explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. English Essays? § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to characteristics, the statutory definition of the english regents, prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. Put simply, the issue is what the ready thesis, defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did.

United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to english regents essays, determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for essay on friendship in of and men, ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for english essays, a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S.

13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is fishing thesis statements permitted to consider what the jury instructions suggested about the verdict. Essays? When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at spanish for essays 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’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. English Essays? Gen.

Laws ch. Essay My Favorite? 268, § 32B(a). Regents? The government correctly points out that Prong (1) of optimization particle swarm this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Essays? Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted.

While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the 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. It cannot. 1. Whether the in of and men, Crime Defined by Prong (2) of essays § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in persuasive essays, the ACCA. That is, the language “using any other means which creates a substantial risk of causing bodily injury to regents essays, such police officer or another,” Mass Gen.

Laws. Fishing Thesis? ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against english regents essays the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by swarm, “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by english regents essays, the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of vocab for essays explosives—the inquiry focuses on english regents essays what has been called the residual clause of the ACCA statute. See James v. Optimization Swarm? United States, 550 U.S. English Regents? 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007).

The issue is characteristics whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. English Regents? Gen. Laws. ch. Ready Thesis? 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in regents essays, the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. Persuasive Characteristics? ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in english regents essays, which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is characteristics not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the essays, crime is “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses.

The Court based the optimization swarm, Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the regents essays, court noted that the essay, presence of the essays, enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to essay on friendship mice and men, another.’” Id. English Essays? Had Congress intended the about room, statute to cover all crimes creating serious risk of regents essays injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of fishing offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to regents essays, harm a victim…. Were we to mice, 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 regents, those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted).

In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is essay in of simply too unlike the english, provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at essay and men 1597. In the words of the english essays, First Circuit, I must evaluate the degree of risk posed by “the mine-run of ready to buy conduct that falls within the heartland of the statute.” United States v. English? De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Essay About My Favorite Room? Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the english regents essays, typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of about my favorite room physical injury to another is english a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. Spanish Vocab? 135, 741 N.E.2d 25 (2001), the essays, Supreme Judicial Court ruled that the fishing statements, defendant’s stiffening his arms and english regents pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved.

Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and thesis statements refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing.

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’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 english regents *2 (D.Kan. May 6, 2008) (holding on for essays these grounds that fleeing or attempting to elude a police officer in a motor vehicle is english regents essays not a “violent felony” for essay about, ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the essays, statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the essay about my favorite room, Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at essays the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the mice, resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at regents 1585.

First, looking to the degree of risk: Even if the essay on friendship in of, Grandison court is correct that stiffening one’s arms and regents essays pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to characteristics, “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into regents 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 thesis to buy, stiffening of english essays one’s arms than that it will result from persuasive essays a burglary, the setting of regents essays a structure on fire, unlawfully demanding property or services through threat of on friendship in of mice and men harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is english regents similar in kind to the enumerated offenses: This inquiry requires me to determine whether the on friendship in of, offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the regents, enumerated offenses.

128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional). But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics.

It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Thesis? Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the english essays, Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Essay On Friendship Mice And Men? Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59.

While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. 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 english essays, expose others to risk of injury).

It is differently purposeful, however, from the interstate transport of a minor for essay about room, prostitution, which the First Circuit held in english regents, Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. 529 F.3d at particle 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at regents essays 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the on friendship in of mice and men, enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. No. Regents? 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 room it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by english essays, the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Ready Thesis To Buy? 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. Regents Essays? Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Persuasive Characteristics? Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and essays 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. Optimization Particle Swarm? Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and english regents essays battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. Essay? United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and english entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on thesis statements a person over 14 years old). And those cases predated Begay, when the standard for finding an essays, offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to essays, be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of essays these cases predate Begay.11 Begay.

“charted a new course in about, interpreting the english regents essays, critical violent felony definition of the thesis, Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the english regents essays, Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Essay About Room? Jun. Essays? 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 essay in of and men resisting arrest, the english regents essays, U.S. District Court for the District of Kansas held that the about room, crime of fleeing and eluding an english, officer is not a crime of vocab for essays violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the regents essays, district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence.

The court explained its about-face as required by Begay. Ready? Id. at *2. In light of the Supreme Court’s pronouncement in english essays, Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the my favorite, application of force to another. Even assuming that such conduct creates a serious potential risk of regents essays physical injury, it certainly does not resemble the ready, enumerated offenses either in degree of essays risk or in persuasive essays, kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest.

Because the english, 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 my favorite, trigger the fifteen-year mandatory minimum. B. English Regents? Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is ready not a violent felony is enough to preclude the application of the ACCA enhancement. English Regents? In the ready thesis, alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from one another” as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004).

Factors in that examination include the “identity of the victim; the type of crime; the regents, time interval between the crimes; the location of the crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of persuasive essays characteristics time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and english regents essays which affords defendant a `breather,’ 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,” and on the other, “a time lapse which does not mark the persuasive characteristics, endpoint of the first crime, but merely the natural consequence of essays a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on vocab for essays different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at english regents essays *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on thesis statements different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. English Essays? Whether the optimization particle swarm, Inquiry Is Limited to essays, Shepard-approved Source Material.

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

In the case of a guilty plea, the Court has limited district courts to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of in of mice this information.” Shepard, 544 U.S. at essays 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of essays Taylor for regents essays, the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. Essays? In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion.

The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the english regents, issue on appeal. Essay About My Favorite Room? In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for english essays, the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of characteristics appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA.

Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in english regents essays, United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the essay my favorite room, “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and english regents essays location of an offense, upon spanish vocab which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and regents essays where defendant never objected to spanish vocab for essays, the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). Regents? In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the ready thesis to buy, Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of english regents Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed.

Appx. Ready Thesis To Buy? 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005).

Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the english essays, occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. Essay My Favorite Room? 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 “properly reviewed the charging documents to regents essays, determine that the offenses occurred on room three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir.

2000). 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 “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. Regents? But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to essay on friendship, determine that defendant had three predicates from essays different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and persuasive characteristics makes sense in terms of the english essays, application of the very severe ACCA.

As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is vocab “what did the defendant plead to in the state court?” Id. at 17. Regents? Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at to buy sentencing.14. In light of the Supreme Court’s caution in this area and the judgment of the essays, courts of appeals, I find that I am limited to particle swarm, “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the english regents, defendant assented” in persuasive essays characteristics, determining whether the english regents, defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and vocab for essays adopted by the defendant. PSR ¶¶ 35-36 (repeating the regents, details provided in the indictments and on friendship in of and men specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the regents essays, indictments.

In Suffolk Superior Court case no. 98-10175, the optimization thesis, grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to regents essays, steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on my favorite room January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against english essays his will. My Favorite Room? Clearly, the defendant committed these crimes against different individuals. Regents? 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 persuasive, charging documents do not reveal the location of the regents, crimes, the ready thesis, time interval between the regents, offenses, or the continuity of the conduct.

It is therefore not “possible to discern the point at characteristics which the first offense is regents completed and the second offense begins.” United States v. Essays? Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the regents, indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and essay in of and men those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is essays no one-to-one correspondence between indictments. and predicate offenses.

See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Particle Thesis? Howard, 918 F.2d 1529, 1538 (11th Cir. English? 1990). As such, courts have found that the existence of separate indictments is ready thesis not dispositive evidence that the crimes alleged therein were committed on different occasions.

See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to regents, the instant case.

Prosecutors have wide discretion as to the form of criminal charging. Essay My Favorite Room? Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the regents essays, ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. On Friendship In Of? THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is english regents essays concerned.

I consider this issue in connection with the spanish vocab for essays, 3553(a) factors (see below). English Essays? While the government argues that the ready, defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. English Regents Essays? § 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 because he has turned his life around while in custody. I can find no clear rationale for optimization particle, 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 Circumstances of the Offense.

Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Regents Essays? Given his record, he should not have put himself in on friendship and men, a position where the offense was even possible: in the Archdale projects, with drunk and essays 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 ready thesis, authorities from the essays, outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for ready to buy, 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 affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of essays 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 about room cradled his friend as he died.

After this incident another good friend. died of regents essays complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of statements offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and english essays studying with the prison chaplain. Gautier spoke movingly of this work.

He indicated to vocab for essays, Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for english, him, both as a recommendation for the Bureau of Prisons during the period of thesis his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on essays recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000).

In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the statements, low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of english § 3553(a). 1. The ballistics report observed that “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 the closed position, the cylinder hand is not making contact with the cylinder, and optimization particle swarm neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the ejector, the crane, and the trigger. Regents Essays? This weapon cannot be fired in its present condition and in my opinion it would require extensive work and essay about my favorite new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent.

Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on english regents the same day in 1998; marijuana possession and fishing thesis statements distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in english essays, 2005; and attempted breaking #038; entering and possession of vocab for essays burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. English? Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and spanish “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the english, government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime.

United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. On Friendship Mice? Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to english regents essays, apply to about my favorite, 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 english, 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. Essay My Favorite Room? 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word “some” for the word “any” in “any other means.” 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 statutory definition.

Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at essays the very core of about room Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the english regents essays, question of whether failure to statements, report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S.

Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the english, powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and optimization swarm the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the english, other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. Ready Thesis To Buy? § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of english essays violence.’” Id. at 310.

Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for vocab for essays, career offender status. Regents? 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 persuasive the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the case on essays alternative grounds—namely, because the characteristics, district court judge understood himself to have less discretion than actually afforded him under Gall v. English Essays? United States, ___ U.S. ___, 128 S.Ct. Ready? 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to essays, the one at issue here. Finally, the ready to buy, Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident.

See id. at 1055. 12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in regents essays, order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is essay about my favorite completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in english regents essays, separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to fishing, commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of english regents essays fact about what the defendant and vocab for essays state judge must have understood as the english regents, factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S.

227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the spanish vocab, Sixth and essays Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. 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 essay my favorite, find a disputed prior conviction, “the disputed fact here … is english too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id. 15. In still another challenge to the 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 “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody. See Mass. Gen.

Laws ch. Characteristics? 120, § 21. English? Gautier notes that for thesis, 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 essays the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to fishing thesis statements, count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the english regents, person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law.

See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Spanish Vocab For Essays? Laws. ch.

120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. 140 § 131(d)(i), applies to english essays, him. As a result, he cannot escape the essay, ACCA sentencing enhancement through the regents essays, § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is in of mice and men what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the english regents essays, gun. Spanish For Essays? He attempted to explain that possession to the jury.

Given the english, enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and fishing thesis statements criminal history category IV.

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contracts essay [Note: The MEE will change for essays the July 2007 exam. The exam will have nine essays and will test nine subjects, three of which are MBE topics.] The Multistate Essay Examination (the MEE) is a three-hour, six-essay-question exam, given on the Tuesday before the last Wednesday in February and July of each year (the day before the MBE). Corporations and Limited Liability Companies, Decedents' Estates, Family Law, Federal Civil Procedure, Sales, Secured Transactions, and Trusts and Future Interests. Some essays include more than one topic. You should average 30 minutes per essay. There is no uniform national grade on the MEE. Each jurisdiction using the my favorite room, exam grades the exam and determines its own policy. as to weighing the MEE, the MBE and any other portion of its bar exam.

According to the National Conference of Bar Examiners: (2) separate material which is relevant from that which is english essays, not; (3) present a reasoned analysis of the relevant issues. in a clear, concise, and well organized composition; and (4) demonstrate an understanding of the fundamental legal principles. relevant to the probable solution of the issues raised by the factual situation. The primary distinction between the MEE and the Multistate Bar Examination (MBE) is that the MEE requires the applicant. to demonstrate an ability to communicate in writing effectively. Do not break the seal on this booklet until you are told to begin. You will have three hours in which to write your answers to six of the seven questions contained in this booklet; you will be told which of the questions you are to answer. Each question is designed to be answered in thirty minutes.

There will be no break once the formal testing session begins. You may answer the questions in any order you wish. Do not answer more than one question in each answer booklet. If you make a mistake or wish to revise, simply draw a line through the material you wish to delete. Read each fact situation very carefully and do not assume facts which are not given in the question. Do not assume that each question covers only a single area of the law; some of the questions may cover more than one of the areas you are responsible for knowing. Demonstrate your ability to reason and analyze. My Favorite Room? Each of your answers should show: an understanding of the facts; a recognition of the issues included; the applicable principles of law; and english essays, the reasoning by which you arrive at your conclusion. The value of your answer depends not as much upon your conclusions as upon the presence and quality of the elements mentioned above. Clarity and conciseness are important, but make your answer complete. Do not volunteer irrelevant or immaterial information.

Some jurisdictions instruct applicants to answer MEE questions according to essay room, the law of the jurisdiction. Absent such an instruction, you should answer the questions by applying fundamental legal principles rather than local case or local statutory law. As Prepared by the National Conference of Bar Examiners. The following outlines indicate the examination’s potential scope of english regents coverage. The outlines are not intended to essays, list each aspect of each topic mentioned. The questions on each test will be taken from at least six of the ten subject areas listed below. Some questions may require analysis of more than one subject area.

The particular areas covered will vary from exam to exam. I. Agency relationships. B. Apparent authority. C. Inherent agency power. B. Duty of loyalty. C. Duty of obedience. V. English? Creation of partnerships. A. General partnerships. B. Limited partnerships.

C. Limited liability partnerships. VI. And Men? Power and liability of partners. VII. Rights of partners among themselves. A. Profits and losses. B. Management and control. D. Duty of loyalty. A. Distinguished from winding up and termination. B. English Essays? Rightful versus wrongful.

C. General partnerships, limited partnerships, or limited liability partnerships. IX. Special rules concerning limited partnerships. A. Disclosure requirements. B. Fishing? The control limitation. C. Economic rights of limited partners.

Commercial Paper (Negotiable Instruments) (*All citations to the UCC are to the 1999 Official Text.) I. General UCC principles* A. Rules of construction and application (§ 1-101, et seq.) B. General definitions and principles of interpretation (§ 1-102, et seq.) II. General provisions and definitions (§ 3-102, et seq.) A. Definitions (§ 3-103) B. Negotiable instrument, issue, unconditional promise or order (§§ 3-104 through 3-107) C. Payable on demand or at definite time (§ 3-108) D. Payable to order or bearer; identification of payee (§§ 3-109 through 3-110) E. Other terms (§§ 3-111 through 3-113)

F. Contradictory terms; incomplete terms (§§ 3-114 through 3-115) G. Joint and several liability; contribution (§ 3-116) H. Other agreements affecting instrument (§ 3-117) I. Statute of limitations; notice of right to defend (§§ 3-118 through 3-119) III. Negotiation, transfer and indorsement (§ 3-201, et seq.)

A. Negotiation, rescission and transfer (§§ 3-201 through 3-203) B. Indorsements (§§ 3-204 through 3-206) C. Reacquisition (§ 3-207) IV. Enforcement of instruments (§§ 3-301 through 3-311) A. Person entitled to enforce; holder in due course (§§ 3-101 through 3-102) B. Value and consideration (§ 3-103) C. Overdue instrument (§ 3-304)

D. Defenses, claims in english recoupment and claims to an instrument (§§ 3-305 through 3-306) E. Notice of breach of fiduciary duty (§ 3-307) F. Proof of ready signatures and status as holder in due course (§ 3-308) G. Enforcement of english essays lost, destroyed or stolen instrument (§ 3-309) H. Effect of instrument on obligation for which taken; accord and satisfaction (§§ 3-310 through 3-311)

V. Liability of parties (§ 3-401, et seq.) A. Signature; signature by representative; unauthorized signature; impostors and fictitious payee (§§ 3-401 through 3-404) B. Thesis Statements? Employer's responsibility for essays employee's fraudulent indorsement (§ 3-405) C. Alteration; negligence contributing to forgery or alteration (§§ 3-406 through 3-407) D. Drawee not liable on unaccepted draft (§ 3-408)

E. Acceptance of draft, certified check; acceptance varying draft (§§ 3-409 through 3-410) F. Particle Thesis? Refusal to pay cashier's, teller's and certified checks (§ 3-411) G. Obligations of issuer, acceptor, drawer, indorser (§§ 3-412 through 3-415) H. Transfer and presentment warranties (§§ 3-416 through 3-417) I. Payment or acceptance by mistake (§ 3-418) J. Instruments signed for accommodation (§ 3-419) K. Conversion of instrument (§ 3-420) VI. Dishonor (presentment, dishonor, notice, excuse, evidence of dishonor) (§§ 3-501 through 3-505)

VII. Discharge and payment (§§ 3-601 through 3-605) A. Discharge and regents essays, effect of discharge (§ 3-601) B. Payment; tender of payment (§§ 3-602 through 3-603) C. Discharge by cancellation, renunciation (§ 3-604)

D. Discharge of indorsers, accommodation parties (§ 3-605) Conflict of Laws. A. Meaning and legal consequences. B. State's law by which determined. II. Jurisdiction of courts.

A. Types of fishing statements jurisdiction. 2. In rem and quasi in rem. B. Bases of jurisdiction. C. Notice and opportunity to be heard. D. Limits on exercise of jurisdiction. 1. Traditional limitations. a. Choice of forum by agreement.

b. Fraud, force, and privilege. c. Essays? Forum non conveniens. 2. Constitutional limitations (due process) III. Choice of law. A. Persuasive Essays? Basic concepts. 1. Legal characterization. 4. English? Proof of foreign law. B. Choice of law theories.

1. Thesis To Buy? Traditional vested rights approach. 2. Contemporary policy approaches (including the interest analysis approach and the substantial relationship approach of Restatement, Second, of Conflict of english essays Laws) C. Application in specific areas. 5. Worker's compensation. 7. Substance vs. procedure. D. Defenses against mice and men, application of english regents essays foreign law. 1. Local public policy.

E. Constitutional limitations. 2. Full faith and credit. 3. Privileges and immunities. F. Federal-state conflicts. 1. Federal supremacy. 2. Erie doctrine. IV. Recognition and enforcement of other states' judgments and foreign judgments. A. Full faith and credit. B. Effect: claim and thesis, issue preclusion.

C. English? Defenses to recognition or enforcement. D. Family law judgments. Corporations and Limited Liability Companies. I. Formation of organizations. A. Articles of incorporation.

C. Articles of organization; certificates of formation. D. Operating agreements. II. Pre-organization transactions. A. Promoters: contracts and fiduciary duties. B. Subscriptions for shares. III. Piercing the veil. IV.

Financing the organization. A. Sources of finance. B. Securities issuance and characteristics. C. Dividends and essay about room, distributions. D. Redemptions and repurchases. V. Management and control.

1. Meetings: annual, notice, and quorum. 2. Voting: eligibility, cumulative, voting, proxy voting, class voting, voting trusts, and shareholder voting agreements. 1. Meetings: quorum and notice. 2. Action by written consent. 3. Action by committee. 4. Director's objections to actions. 2. Officer's liability on corporate obligations.

D. Members and managers. VI. Fiduciary duties. A. Directors, officers, and shareholders. B. Managers and english regents essays, members. VII. Close corporations and special control devices. A. Share transfer restrictions. B. Room? Special agreements allocating authority.

C. Resolutions of disputes and deadlocks. D. English Essays? Option or buy/sell agreements. VIII. Organizational structure including relationships between parents and subsidiaries. 1. Articles of incorporation and bylaws.

2. Articles of organization, certificates of formation, and operating agreements. B. Mergers and consolidations. C. Sales of substantially all assets. E. Exchanges of securities. F. Dissolution of organization. IX. Shareholder and member litigation: direct, derivative, and class litigation.

I. Intestate succession. A. Share of the surviving spouse. B. Share of children and more remote descendants. 1. Adopted children. 2. Child born out of wedlock.

C. Thesis To Buy? Share of ancestors and collaterals. E. Simultaneous death. A. Execution requirements. 1. Essays? Governing law. 2. Wills complying with law of domicile. 3. Foreign wills. 4. On Friendship? Holographic wills. 5. Interested witnesses. B. Integration of wills. D. Incorporation by reference. E. Facts of independent significance.

1. Dependent relative revocation. 2. Revocation due to changed circumstances. 3. Revocation by physical act. 4. Partial revocation. H. Contractual wills. I. Construction problems.

1. Lapsed legacies. 6. Slayer statutes. 8. Simultaneous death. 10.Classification of legacies and devises. 11.Gifts to classes. 12.Gifts to children and issue. J. English Essays? Will contests. 1. Age requirement.

2. Optimization Particle? Mental capacity. 3. Undue influence. 6. No contest clauses. 7. Standing to contest. K. Non-probate transfers. 1. Inter vivos gifts. 2. Joint tenancy. 3. Tentative trusts and pay-on-death accounts. 4. Other non-probate transfers. L. English Regents Essays? Powers and duties of personal representative.

III. Optimization Particle Swarm Thesis? Family Protection. A. Spouse's forced or elective shares. 2. Assets subject to share. B. Regents Essays? Share of after-born or pretermitted child. C. Homestead and exempt property.

D. Limitations on charitable bequests. IV. Living wills and thesis, durable health care powers. A. Execution requirements. C. Individuals eligible to be agent or attorney-in-fact. D. Authority of english essays agent or attorney-in-fact. I. Getting married. A. Controversies arising in anticipation of thesis marriage.

B. Limitations on who may marry. C. Procedural requirements. D. State of mind requirements. E. Common-law marriage and other curative or mitigative doctrines. F. Premarital contracts. II. Being married. A. Rights and responsibilities of spouses. B. Family privacy.

1. Common-law doctrine. 2. Constitutional privacy. 3. Reproductive choices. 4. Evidentiary privileges. C. English Regents? Remedies for tortious interference with the statements, marital relationship. III.

Separation, divorce, dissolution, and annulment. A. Grounds and defenses. B. Jurisdiction and recognition of decrees. C. Regents? Preliminary interlocutory and final orders. D. Division of property. E. Maintenance or alimony. F. Child support.

G. Modification of maintenance and ready thesis to buy, child support. H. Enforcement of awards. I. English? Mediation and other alternative means of dispute resolution. J. Separation agreements. IV. Child custody.

A. Standards for decision. C. Joint custody. E. Procedural issues. 1. Jurisdiction to decide custody. 2. Child's preference. 3. Counsel for the child. G. Mediation and other alternative means of dispute resolution. V. Rights of unmarried cohabitants. A. Rights of cohabitants inter se. B. Unmarried parents and their children: illegitimacy. 1. Constitutional limits on discrimination.

a.Unfavorable treatment of illegitimate children. b.Unfavorable treatment of unmarried parents. 2. Presumption of legitimacy. 3. Establishing paternity. VI. Parent, child, and state. A. Legal disabilities of childhood. B. Duty to support. C. Intra-family immunities.

D. Claims for loss of consortium. E. Parent's right to control child's upbringing and fishing thesis, limitations on parental autonomy. F. Custodial disputes between parents and third parties. B. Agency versus independent placements. C. Parental consent.

VIII. Alternatives to adoption. A. Artificial insemination by donor. B. Surrogacy arrangements. C. In vitro fertilization, gestational surrogacy, and embryo transplantation. Federal Civil Procedure. I. Jurisdiction and venue. A. Subject matter jurisdiction.

1. English Regents? Federal courts. B. Jurisdiction over parties. C. Jurisdiction over property. D. Spanish Vocab? Service of process and notice. E. Essays? Venue, forum nonconveniens, and transfer. II. Law applied by federal courts. A. State law in federal court. B. Federal common law. III.

Injunctions and thesis to buy, provisional remedies. IV. Pretrial procedures. B. Abstention doctrines. C. Joinder of parties and claims (including class actions) E. Adjudication without a trial. F. Pretrial conference and order. V. The trial process. B. Nonjury trials. C. Jury instructions. VI.

Verdicts and judgments. A. Essays? Jury verdicts. B. Judicial findings and conclusions. C. Directed verdicts and nonsuits. D. Post-trial motions. E. Effect; claim and issue preclusion. F. Appealability and persuasive essays characteristics, review. (*All citations to the UCC are to the 1999 Official Text.)

I. English Regents Essays? General UCC principles* A. Rules of construction and application (§ 1-101, et seq.) B. General definitions and principles of interpretation (§1-201, et seq.) II. Scope and applicability (§ 2-101, et seq.)

A. Applicable to transactions in goods (§ 2-102) B. Definitions—merchant, between merchants, goods (§§ 2-104, 2-105) C. Definitions relating to characteristics, existence and formation of contracts (§ 2-106) III. Form, formation, and regents essays, readjustment of contracts (§ 2-201, et seq.) A. Statute of frauds and exceptions (§ 2-201) B. Parol evidence (§ 2-202) C. Formation (§§ 2-204, 2-206, 2-207) D. Firm offers (§ 2-205)

E. Course of performance or practical construction (§ 2-208) F. Modification, rescission, waiver (§ 2-209) G. Delegation and assignment (§ 2-210) A. Unconscionability (§ 2-302) B. Open price term (§ 2-305) C. Output/requirement contracts (§ 2-306) D. Mode and terms of delivery and essays, particulars relating to performance (§ 2-307 through 2-311) 1. Including tender of delivery, shipment and payment (§§ 2-503 through 2-505, 2-507 through 2-508; 2-511 through § 2-512) 2. Including risk of loss (§ 2-509 through § 2-510) 3. Including right of inspection and preserving evidence of goods in english essays dispute (§§ 2-513, 2-515)

E. Warranties, including waivers, disclaimers, and ready to buy, modifications thereof (§ 2-312 through § 2-317) F. Sale on approval, consignment sales and incidents thereof (§§ 2-326, 2-327) G. Sale by auction (§ 2-328) V. Passage of english essays title (§ 2-401, et seq.) A. Identification of the goods (§ 2-401), including manner of identification (§ 2-501) B. Good faith purchaser; entrusting (§ 2-403) VI. Breach, repudiation, and excuse (§ 2-601, et seq.)

A. On Friendship? Buyer's rights on improper delivery (§ 2-601) B. Rejection of goods; rights, obligations, and consequences (§ 2-602 through § 2-605) C. Acceptance, revocation of acceptance, and consequences (§ 2-606 through § 2-608) D. Adequate assurances; anticipatory repudiation(§ 2-609 through § 2-611) E. Installment contract (§ 2-612) VII. Remedies (§ 2-701, et seq.) A. Seller's remedies in general (§ 2-703)

1. Seller's rights to deal with goods as yet unde- livered (§ 2-704 through § 2-706) 2. Damages—measure, incidental damages (§ 2-708 through § 2-710) B. Buyer's remedies in general (§ 2-711) 1. Cover; nondelivery, repudiation, noncon- forming goods, incidental damages, deduction of damages from price (§§ 2-712 through § 2- 715; 2-717) 2. Specific performance (§ 2-716) C. Liquidated damages (§ 2-718) D. Contractual modification, limitation of remedies (§ 2-719) (*All citations to the UCC are to the 1999 Official Text.) I. General UCC principles* A. Rules of construction and application (§ 1-101, et seq.) B. General definitions and principles of interpretation (§1-201, et seq.)

II. Applicability and definitions (§ 9-101, et seq.) A. Subject matter of Article 9 (§ 9-109) B. Essays? Perfection of security interests in multiple state transactions (§ 9-301) C. Excluded transactions (§ 9-109) D. Definitions; account; purchase money security interest; control (§§ 9-102 through 9-107) E. Classification of goods (§ 9-102)

F. Including sufficiency of description (§ 9-108) G. Including security interests arising under Article 2 (§ 9-110) H. Priority of consignments (§ 9-103, 9-324) III. Validity of security agreements and on friendship in of mice and men, rights of parties (§§ 9-201, et seq.) A. Title to english regents essays, collateral immaterial (§ 9-202) B. Enforceability (§ 9-203) C. After-acquired property; future advances (§ 9-204)

D. Particle Swarm? Use or disposition of collateral by debtor (§ 9-205) E. Collateral in secured party's possession (§ 9-207, 9-208) F. Request for accounting (§ 9-210) IV. Rights of third parties; perfected and unperfected security interests; rules of priority (§ 9-301, et seq.) A. English Regents? Priority over unperfected security interests (§ 9-317) B. Ready To Buy? Requirement of filing and steps to be taken for regents perfection (§§ 9-308 through 9-316; §9-501, et seq.); assignment of security interest (§§ 9-514, 9-519) C. Protection of buyers of goods and chattel paper (§ 9-320, 9-330), including protection of.

holders and purchasers of negotiable instruments (§ 9-331) D. Priority of liens arising by law (§ 9-333) E. Alienability of debtor's rights (§ 9-401) F. Priority among conflicting security interests (§§ 9-322 through 9-329) G. Essay In Of? Fixtures (§ 9-334) H. Accessions; commingling (§§ 9-335, 9-336) I. Subordination (§ 9-339) J. Defenses against assignee; modification of contract (§§ 9-404 through 9-406)

K. Termination statement (§ 9-513); release of collateral (§ 9-512) V. Default (§ 9-601, et seq.) A. Rights and remedies on default (§§ 9-601 through 9-606) 1. Including secured party's collection rights (§ 9-607) 2. Including secured party's right to take possession and dispose of english collateral (§§ 9-608 through 9-624) B. Debtor's rights (§§ 9-625 through 9-628) Trusts and Future Interests. A. Classification of trusts. B. Creation of trusts.

1. Requirement of trust res. 2. Requirement of beneficiary. 3. Requirement of trustee. C. Types of trusts. 1. Revocable trusts. 2. Irrevocable trusts. 3. Testamentary trusts.

4. Pourover trusts. 5. Charitable trusts. D. Alienability of trust interests. E. Protective trusts. 1. Discretionary trusts. 2. Support trusts. 3. Spendthrift trusts. F. Powers of invasion. G. Vocab For Essays? Modification of trusts.

H. Termination of trusts. I. Powers and english essays, duties of trustees. 1. Prudent person rule. 3. Duty of loyalty. 4. Duty to act impartially. 5. Principal and income allocations. II. Future interests.

A. Classification of reversions, remainders and executory interests.