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MLA Format Papers: Step-by-step Tips for Writing Research Essays. 0.1) If you’ve been asked to submit a paper in MLA style, your instructor is asking you to format the page and present the content in a specific way. Just as football referees dress a certain way, and Japanese chefs cook a certain way, writers in english personal certain disciplines follow a certain set of conventions. This document will show you how to format an passchendaele film essay in MLA style. 0.2) If, instead of questions about putting the final formatting touches on your essay, you have questions about english personal, what to write, see instead my handouts on writing a short research paper, coming up with a good thesis statement, and using quotations in the body of of documentary your paper. (no comma between the author and page number; commas and periods go outside of inline quotes) Works Cited List. (lots of tricky details! sort alphabetically by author, not by the order the quotes appear in english statements your paper) For the is lawrence of arabia most complete information, check your campus library or writing center for the MLA Handbook for Writers of statements Research Papers , 8th ed.
MLA Style Format (First Page) How to format the Works Cited page of an definition MLA style paper. Your word processor comes with default settings (margin, line height, paragraph spacing, and typeface) that will likely need adjustment. For MLA style, you need: 1-inch margins all around 2.0 line height (double-space the whole paper, including title block and english personal statements Works Cited list) no extra spacing after the title, between paragraphs, or between bibliography items 12-point typeface (usually Times New Roman ) 1.1 Adjusting Document Settings in MS-Word (Windows) My copy of Microsoft Word for Windows defaults to.
1-inch margins all around 1.15 line height 10pt spacing between paragraphs Calibri 11-point typeface. Changing to MLA Style (Windows) The default margins in my test run were fine, but if you need to change them: Page Layout - Margins - Normal (1-inch all around) The default line height is too low. King. Change it to english statements, 2.0. CTRL-A (select all your text) Home - Line Spacing - Remove Space After Paragraph Change the typeface to Times New Roman 12-point. Home - Font Face Selector (change to Times New Roman) 1.2 Adjusting Document Settings in MS-Word (Mac) My copy of Microsoft Word for Mac defaults to. 1.25 inch left and passchendaele film right margins, 1 inch top and english personal bottom 1.0 line height no extra spacing after paragraphs Cambria 12-point typeface.
In my test run, the king left and english statements right margins are too big. To change them: Layout - Margins - Normal (1-inch all around) The default line height is too low. Change it to in lion king, 2.0. Home - Line Spacing - 2.0 My Mac copy of MS-Word does not add extra spaces after paragraphs. If yours does: Don’t add space between paragraphs of the same style (check this box) - OK The 12-point Cambria will probably be fine, but to change the personal statements typeface: Home - Font Face Selector (change to Times New Roman) In the top right of every page, use your word processor’s “Page Header” function add an automatic page number and your surname.
2.1 Adding the Electric Company Page Header in MS-Word (Windows) Insert - Page Number - Top of Page - (choose the english statements right-justified “Plain Number” option) The cursor will jump automatically to how long of arabia, the right place for english personal, you to t ype your surname . Click anywhere in the body of the paper to exit the header area. 2.2 Adding the Page Header in how long is lawrence of arabia MS-Word (Mac) Insert (in the top menu) - Page Numbers… - (Set “Position” to “Top of Page (header)” and “Alignment” to english personal, “Right”) Click just to the left of the passchendaele new page number, and type your surname . On my test document, my name was too far over to the left; grab the triangular tab adjuster just above your name, and drag it a notch to the right . In the upper left corner, type your name, your instructor’s name, the course number and section, and english personal statements today’s date. Definition. Centered on the next line, type an informative title that actually informs the reader of your main point (not just “English Paper” or “A Comparison between Hamlet and Macbeth”).
Like all the other text in an MLA style paper, the title block is double-spaced . The title is in the same font as the personal statements rest of the paper — it is not boldface, or enlarged. There is rumba no extra space above or below the title. English. A truly informative title will include the general topic, and your precise opinion on that topic. (So, if you pan to compare Hamlet and Macbeth, your title should state the unique point you want to make about Hamlet and Macbeth. Reuse part of your thesis statement.) This handout presumes you already know why you should cite your sources (to establish your authority, to introduce persuasive evidence, to avoid plagiarism, etc.), These instructions focus on hyenas in lion king, how you format the page. (For a resource to help you determine how to cite a specific source, see the MLA Bibliography Builder). To fully cite a source requires two stages. The first happens in the body of your paper (the “in-text citation”) and the second happens on english statements, a separate page at the end of your paper (see “Works Cited List,” below.) 4.1 Citing a Block Quote (more than three lines) Long quotes can start to look like filler.
Only use a block quote if you have a very good reason to include the whole passage. (You can usually make your point with a shorter quote.) If you do have a good reason to quote a passage that is several lines long: Select the text and click the “ Increase Indent ” icon (see image, right). Place the The General Electric parenthetical citation (the author’s name and the page number) after the period . (This is different from inline quotes, below.) There is no comma between the statements author’s name and the page number. Definition Of Documentary. If the quotation runs across more than one page: (Wordsworth-Fuller 20-21) or (Wordsworth-Fuller 420-21). Skip wordy introductions such as, “In his informative guide The Amazing Writing Book , published by personal Elizabeth Mount College in 2010, the noted composition expert Maxwell Wordsworth-Fuller describes the importance of citations in badge of courage MLA style papers.” Cutting the filler leaves more room to develop your own original ideas. (See “Integrating Quotations.”) 4.2 Citing an Inline Quotation. When the passage you want to quote is less than three lines long, use inline style. Here we have two brief passages, taken from the same page of the same source, so we can handle both with a single parenthetical citation. The parenthetical citation appears outside the quoted material. The period that ends the sentence comes after the close parenthesis . (This is different from block quotes, above.) In this example, we have changed the first word a little, lowercasing it in order to english statements, fit it into our own sentence.
To let the reader know what we changed, we put  around it. Again, note the absence of a full sentence that explains who Wordsworth-Fuller is and where the film quote comes from. English. All that info will be in the Works Cited list, so we leave it out of the body of the paper. Let’s imagine we want to reference Wordsworth-Fuller’s general idea about rumba history, citation as a way to establish credibility, but we don’t need to include any of the technical details. We can save space, and make it much easier on our reader, if we paraphrase: Use paraphrasing for variety, or to make a passing reference without taking up much space. If we use an author’s idea, rephrased in our own words, we must still cite the idea. A research paper isn’t a research paper unless you end with full bibliographical details on every source you cited. This part can be tedious and tricky; leave yourself plenty of time to do it. Start a new page . MS-Word Wind: Insert - Page Break - New Page.
MS-Word Mac: Document Elements - Break - Page. Title your new page: Works Cited. MLA style calls for no extra spaces above or below the english personal statements page title; no special formatting. 5.1. How to Electric Company Essay example, Create an Individual Works Cited Entry. Exactly what goes into each item in statements your bibliography depends on what kind of item it is. The General Company Example. The following pages give you some questions to english statements, answer, then let you push a button to get an rumba individual works-cited entry. If you prefer a more narrative explanation, see Purdue OWL’s handouts for english personal statements, how to create a bibliography entry for a book, an article in a periodical (such as a journal or newspaper), or an the red badge of courage setting electronic source (such as an email, web page or a YouTube clip).
See also this list of other common sources (such as a personal interview or a movie). 5.2. How to Organize Your Works Cited list. Sort the entries alphabetically by the author ‘s last name. If the author is an english organization (such as a government agency or non-profit foundation), alphabetize according to how long is lawrence, the name of the organization . If you are citing a painting, or a composer, then obviously “author” has to be interpreted a little loosely. Unless your instructor ask you to organize your Works Cited list differently, everything should be alphabetized together, in a single list. MLA does not require that you separate works of different kinds, or that you cite works in the order that they appeared in your paper, or that you write annotations to go along with each item.
Use double-spaced line height. Personal Statements. (in my copy of Word, I select the text and choose Format - Paragraph - Line spacing - Double - OK.) Use hanging indent paragraph format. Is Lawrence. (In my copy of word, I select the text then choose Format - Paragraph - Indentation - Special - Hanging Indent.) 29 May 2011 — new document posted, replacing outdated handout written in 1999. 06 Jun 2011 — expanded section on organizing the Works Cited list, since several readers asked for clarification. 07 Jun 2011 — reorganized for emphasis. 19 Apr 2012 — added numbers to statements, more subheads. 30 Nov 2016 — added annotated Works Cited sample image. If your college instructor wants you to cite every fact or opinion you find in an outside source, how do you make room for your own opinion? Paraphrase, quote selectively, and passchendaele avoid summary.Dennis G. Jerz. MLA Works Cited Citation Builder. 0 thoughts on “ MLA Format Papers: Step-by-step Tips for english statements, Writing Research Essays ” I think you should add an explanation about page numbers.
That was what I was looking for, but I couldn’t find the significant area. Section 2 explains how to put page numbers in Company the header, and section 4 discusses page numbers in english personal citations. How do you in text cite a website? I didnt really see much about the red badge of courage, that. Very good information, I really needed this incite on research paper formats. It has such thorough details and that make it so much easier to understand. when you say page numbers (Wordworth-Fuller 20), are you referring to english statements, the page number within the MLA document or the page number the text appears on within the authors works?
That means the quote is from page 20 of the book or article written by of documentary Wordsworth-Fuller. Thank you for valuable information. Before my college year in America I didn’t know what MLA Format was, but with this delicate information I will survive my college year. Thank you for useful information about statements, how to write MLA format essay. Before my college year I didn’t know there were many different forms of passchendaele film essay. English. When my professor asked me to write MLA format I had no idea how to write it, but with your delicate information I think I will survive my college year. Thank you again. I’m glad to know you found this page helpful.
Most instructors will be happy to definition of documentary, help if you stop by during their office hours, and if your prof is too busy for personal statements, that most universities will have a writing center where you can get help at any stage of Electric Company Essay example any assignment involving writing. With your delicate information about to english statements, write MLA format essay in of documentary right way will lead me to successful college year. when you say page numbers (Wordworth-Fuller 20), are you referring to the page number within the MLA document or the page number the personal text appears on within the authors works? In this case, your paper would be referring to something you found on page 20 of the of documentary text by statements Wordsworth-Fuller. i think you should add an rumba dance history explanation about english personal, page header. that was what i was looking for. Is the Table of Contents double spaced – MLA? “@pretti_slimm: @Thyler_Jonzy http://t.co/QIf00vlgws try this site looks helpful”I just found a sample paper on Google.
Im in middle school and passchendaele film I have to do this. I have never heard of MLA Format and this helped ALOT. Thanks so much! Hopefully I get a good grade on this paper! I really find this useful (especially fudging the line spacing to english statements, 2.1). Setting. Good job! Can you put what information is supposed to be in each paragraph. Emma, I’m afraid I don’t understand the question. I feel like you’ve asked me what emotions are supposed to be in each verse of english statements a song, or what colors are supposed to be in a painting.
There are many different kinds of songs and paintings, created for different reasons; likewise, there are many different kinds of paragraphs, written for different reasons. that was beautiful. I am writing to request permission to link your webpage, “MLA Format Papers: Step-by-step Instructions for Writing Research Essays” to our website. Lansdale School of Business. I am glad you found this page helpful. Yes, you are welcome to how long of arabia, include a link and personal a brief extract. Thank you so much!! I love the Bib builder!! I’m glad to hear you found it helpful!
RT @DennisJerz: MLA Format Papers: Step-by-step Instructions for Writing Research Essays #mlastyle http://t.co/B6pGb3Pkeh. How do you add footnotes to an MLA style paper? Most word processors will have an Insert - Footnote or Insert - Note (footnote or endnote) option. Most short college papers don’t need footnotes. Passchendaele. (They aren’t for documenting sources — use an personal in-text citation and a Works Cited list instead.) I suggest you talk to your instructor about film, whether you really do need to use a footnote. When using MLA format, do you list the book title, the title of the article or both? For guidance on citing individual sources, see the link in item 4, above. This page is english personal statements about formatting the paper once you’ve already written it. I wrote a paper and it looks just like your example. I followed everything to the “t” and rumba dance my professor says that my header is statements indented and my paragraphs are double indented and hyenas in lion the page numbers are in wrong format.
What can I do? Winston, I suggest you talk to your professor. I have been teaching from thiis handout for years, and when a student makes a formatting error on personal statements, a rough draft, I just ask them to fix it for the revision. But your instructor is the one who designed the assignment and who evaluates your submissions, so he or she is the person to approach with questions. I agree. .let me ask you this. Are your headers indented? The screenshot was taken from a page that I created following the instructions for using MS-Word with a MacBook Pro. I followed the instructions that are on The General Electric Company Essay example, the page. But surely your instructor gave you guidelines, in a handout or an assigned textbook, which is why I encourage you to have this conversation with your instructor. Whether your instructor does or does not agree with the information on this page really doesn’t matter, since your instructor created the assignment and evaluates it according to his or her own criteria.
I suggest you let your your teacher know you are confused about what you did wrong, and ask for an opportunity to make minor formatting changes to a paper that, we hope, met all the major criteria. We get asked often about what “format” the college application essay should be in. Although not generally… http://t.co/v1TTNxtE4e. seems easy enough. Dennis, what lends itself to science in personal the APA system? And what lends itself to the Humanities with the king MLA? TIA. As compared to MLA papers, APA papers tend to be shorter, and english personal divided up into The General Electric sections. Authors who use APA style tend to english personal statements, publish more frequently, because their knowledge goes out of date more quickly; so the date is rumba prominent in APA citations, and statements page numbers are rare.
By contrast, people who use MLA style tend to write longer essays that aren’t divided up into standard sections like “procedure” and “conclusions.” Humanities scholarship generally doesn’t go out of date quickly. Passchendaele. Instead of conducting experiments, humanists read and write a lot of longer essays and books, re-interpreting and quoting passages from them. MLA style makes the page numbers prominent, so that other scholars can easily find and re-read those same passages for english, themselves, and further the work of scholarship as it is conducted in of arabia the humanities. Thanks for the reply. What do you mean by english ” MLA style tend to write longer essays that aren’t divided up into standard sections like “procedure” and the red badge “conclusions.”?
Are we not suppose to english statements, use conclusions in MLA format? In my English class, we use MLA with conclusions, but what do you mean by Company Essay “procedure” and “conclusions”? I understand each instructor is different but is it right to use conclusions in english personal statements an MLA paper…or am I getting confused? Typically papers written in MLA style DO have a conclusion, but it would not be set off in a separate section under the subheading “Conclusion.” MLA papers tend NOT to The General Electric Company Essay example, follow a standard, particular structure. Papers written in personal statements the sciences DO have a fairly rigid set of sections, with separate subheadings. But it’s best for you to rumba dance, talk to personal, your teacher about the specifics of any asisgnment. Ok, thanks. I just wanted to ask and clarify it. Of Documentary. Also, doesn’t the word “humanist” means something else entirely? The Humanist term today implies ‘human’ and is often used for english, atheists, for example… or am I wrong?
I used the term “humanist” to mean “a person who studies the culture of humans,” without intending the more specific meaning you mention. At my school, the passchendaele humanities division includes theologians. this was very helpful i got an A 95 percent. hi my name is Jessie i have to english personal statements, writ a 2 pages Essay about MLA can someone help me. thank u i got an A 97 percent. u a real nigga dennis. This wasn’t helpful at all. Shavez, what were you looking for? This page is about formatting a paper you have already written. The first section includes links to pages about in lion, how to write essays. Thank you very much for this useful information.
As a freshman in english highschool, my biology teacher asked for me to hyenas in lion king, write an english statements essay in mLA format about evolution. I had no clue what mLA format was,so I searched it up and Essay it brought me here. In middle school I never wrote an essay in english this format before,but I feel very confident to type my first mLA essay and I’m excited to of documentary, do so! (Right after I finish my draft .) thank you very much! (???)? I’m using a book title and author as my paper heading. How is personal that formatted?
I would tell my own students that a book title and the name of an definition author is not a good paper title, and I would ask them to english, write a title that catches the reader’s attention, identifies the topic, and identifies what position the paper is passchendaele going to english, take on the topic. But if you are not my student, then I’m not the dance history person who will be evaluating your paper. Statements. MLA style puts the book title in italics. Other than that, I really don’t have any advice for you. Very informative. Rumba Dance History. It helped introduce my tired old mind to the MLA format. English Personal Statements. So, I can better help coach and rumba dance prepare my wife for english personal statements, her English course.
Thank you very much. which writing style (MLA, APA) have more importance for students of social sciences, media sciences and business? I think you should include online resource citation instructions. Click on “Citing” at the top of the page. One of the in lion king options on the other end of english personal that link is how to cite a web page. This article..thing is the is lawrence only reason I am passing my online college class. Especially the personal citation builder.
Thank you! cool it was helpful. is the text or what you wrote supposed to be centered in of courage setting the page or to the left margin. How do I cite a photo that I found online? Is it a historical photograph or a photograph published in a book that someone scanned and posted on line, is it a photograph of something like a sculpture? Is your paper focused on the work of the photographer, the makeup artist who prepared the model, the english personal digital image enhancer who altered the image, the model? There is rumba history no single correct way to english, cite a photograph, because there are many different reasons to cite a photograph. Your instructor would be able to give you more specific advice.
In general, though, the 8th edition of the MLA guide would say something like this: Olsen, Jimmy. “Superman Rescues Boy Scouts from Lava Pit.” Photograph. The Daily Planet . How Long Is Lawrence Of Arabia. July 22, 1956. If you found the picture on english, a blog or a Flickr gallery, adjust the citation accordingly. If you found the image as the result of a Google search for the red setting, something, you might very well end up finding a page that re-uses someone else’s picture without appropriately giving credit. There are many variables. Talk to personal statements, your instructor, who will be the one grading your work, and will therefore be the right person to advise you on what to do. hahahah xD me too same. I would Like You To Give Simple Instructions Not Complicated Ones , and how long of arabia Include also how much Papers Should be worked on. Khalid, if there is any particular detail you are confused about, please let me know what question you have and perhaps I can help. There is no specific answer to how much a paper should be worked on.
It depends on what grade you want to earn, how much time you have, whether your instructor is willing to meet with you before the due date, whether your instructor will give you the english personal chance to revise your work, and many other factors. This article..thing is the only reason I am passing my online college class. Especially the citation builder. The Red Setting. Thank you!
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Top 10 Details to Include on a Nursing Resume. As healthcare recruiters, we reviewed thousands of nursing resumes. Unfortunately, the vast majority of them were missing multiple details that were important to the Nurse Managers and english personal statements, Nurse Supervisors who were largely responsible for making the hiring decisions. Moreover, missing these critical details can ultimately lead to dance history a lower ranking within the Applicant Tracking Systems so prevalent in today’s hiring process. We hope the information provided here will help you create an amazing resume!
First, it’s important to have an idea of how the hiring process typically works in order to thoroughly understand the importance of these critical details. When a job opens up to the general public, the healthcare employer can sometimes receive hundreds of resumes. In some cases, the resumes are electronically ranked by statements Applicant Tracking Systems that award higher rankings for hyenas in lion king resumes that include the critical skills and experiences sought for english personal statements the job. In any case, staffing office representatives, mostly recruiters, will review the Electric Company, rankings and personal, resumes and pass along the definition, “best” candidates to the hiring managers. Personal! It’s important to note that being the “best” often means having a resume with all the critical details. If the information isn’t there, then the resume stands a far greater chance of being removed from the passchendaele film, process. It’s important to note that missing these details is not the english statements, nurse’s fault. Badge Of Courage Setting! Unfortunately, the vast majority of informational resources pertaining to resumes is very general in nature. General resources are useful only for people with very general careers like “Sales”. These resources are mostly useless for nurses.
Meanwhile, many resources specifically related to nurse resumes offer insufficient detail. Moreover, healthcare employers do a terrible job at conveying what they’re looking for in their job descriptions, so candidates have no clue what to include in their resumes. Skimming the english, list below may leave the impression that everything on it is obvious. However, reading the details provided for each item will most likely uncover items which are missing from rumba your nursing resume . What to Include on Your Nursing Resume. There are literally thousands of potential professional affiliations for nurses. In most cases, employers want to know if you belong to personal statements any. Rumba Dance! For example, if you belong to the American Association of Critical Care Nurses or the Emergency Nurses Association, then most employers would like to statements know this. Include the Company example, following information: Affiliation name Your date of admission Offices held Brief description of your role or reason you chose this group over others.
9. Honors/Awards/Special Assignments: As with every other resume, a nurse’s resume should include any honors and awards they’ve received. Examples include honors and awards from school, work, volunteer work, professional affiliations, and personal, even social clubs. Nurses should also include any special assignments they were given at work. Did you ever take charge duty? Did you do any scheduling or mentoring?
You may choose to place these items under their own heading. However, this isn’t necessary. You can also add them where applicable throughout the rest of your resume. 8. Specific Nursing Education Details: Including the degree you earned (ADN, ASN, BSN, MSN, etc.) is a must. Not including it increases the chances that your resume will be removed from badge setting consideration. This is because the information is english often required for the resume to move through the passchendaele, process and it isn’t easily attainable by the staffing office. So, they’ll often pass on a resume that doesn’t include the information in favor one that does. Provide at personal statements, least the following information about your education:
Name of school Degree earned Beginning date Completion date City, and State. You might also consider adding a description that includes achievements, awards, scholarly organizations and badge, activities, or your GPA if it was really high. English Personal! Of course, scholastic achievements are more important the earlier you are in your career, so keep that in mind when crafting the education section of your resume. Finally, you may also wish to include details on any continuing education units you’ve taken within the definition, last 2 years. Bonus: Are you bilingual? If so, be sure to english personal statements include it on how long is lawrence of arabia your resume! According to a recent study from Wanted Analytics, “bilingual” was the second most commonly required skill listed on statements nursing job advertisements. 7. Rumba History! Nursing License and Certification Details: It is highly recommended that you include the following for your licenses:
License type (LPN, RN, NP, CRNA, etc.) Licensing State/Body Name on license if different from english name on Company resume License expiration date License number If the license is part of the english, Nurse Licensure Compact, then state it clearly. Many people argue that a nursing license number should not be included on a resume as a matter of privacy. However, nursing license numbers are a matter of badge setting public record. They can be easily obtained from each state’s Board of Nursing using the standard information included on your resume. Providing the license number simply makes the recruiter’s job easier. English Personal! And in a competitive job market, that could make all the difference in the world. When it comes to hyenas in lion certifications, it is highly recommended that you include the following for personal every certification you hold: Certification name (BLS, ACLS, PALS, TNCC, etc.) Certifying body (AHA, etc) Expiration date, or date acquired if it has no official expiration date. Unlike most professions, nursing is conducted round-the-clock.
Therefore, it’s best to definition convey the shifts you’re willing to work on your nursing resume. Are you open to working 8, 10, and/or 12 hour shifts? Are you open to working Days, Mids, PMs, and/or Nocs? You should include this information even if you’re applying for a specific job with a specific shift. You never know if the employer has another opening that is unadvertised which you maybe qualified for. Moreover, resumes aren’t always submitted to specific job advertisements. In fact, many sources indicate that 80% of all jobs are filled through networking.
Including your availability is very helpful for general job inquiries. In addition, you should indicate your willingness to personal statements relocate when applicable. These statements regarding availability can be given their own heading, but it’s best to simply add them to your Professional Summary. The healthcare industry is going electronic. Paper charting will soon be a way of the past. It’s imperative to definition of documentary list any and all Electronic Health Record (EHR) and Electronic Medical Record (EMR) experience you have. According to a recent study by Wanted Analytics, “Electronic Medical Record” was the most commonly required skill for personal nurses listed in nursing job advertisements. “Epic Software” and “Meditech”, popular EMR software packages, were also on the list. Of course, billing codes are a big part of how long is lawrence EMRs. And both ICD10 and ICD 9 are among the most commonly listed skills in job advertisements. So if your scope of practice deals with this in personal any way, then be sure to add these to your resume.
You may also want to include any other computer experience you have just in case it may be of value to the employer, or to of documentary at least demonstrate that you have computer skills if you lack experience with EHRs and english personal, EMRs. Signifying the type of of arabia facility you worked in english statements tells the potential employer a ton about your experience with very few words. You should know the exact designation of all the facilities you worked with and the red badge setting, if you don’t, now is the time to find out. English Personal Statements! Short term acute care? Long Term Care? Long Term Acute Care? Senior Nursing Facility? In addition, if you worked at a Trauma Hospital, then you should include this on your resume along with the trauma designation (1, 2, 3, etc). If you worked at a teaching hospital, then you should include this information. Such information can be included under the specific job description in film your resume’s Work History section, or in your resume’s Summary. For example, if the job listing you’re applying for lists trauma hospital experience as necessary or desired, then it’s a good idea to identify your trauma experience in the resume Summary to make it stand out.
Include the number of total beds at the facilities you worked at, as well as the number of beds in the specific units on which you worked. Personal Statements! Just like the facility type, providing the number of film beds tells the english personal, potential employer a ton about your experience with very few words. We regularly saw resumes that listed things like “3 West” as the unit. Unfortunately, only people who work at that facility know what that means. Instead, include the type of unit (MS, TELE, ICU, CVICU, ER, LD, etc) in order to convey the message. We can’t stress enough how important this is. Also include your caseload. What was the nurse to of documentary patient ratio in english statements this unit, and how much support was there in the form of LPNs, CNAs, or MAs?
Include any other unit specific details as well. Passchendaele! Did the unit take trauma patients? Did the english personal statements, unit routinely deal with overflow from other units? If so, what types of patients were seen from overflow? 1. Specific Details/Duties and Accomplishments Regarding Your Nursing Experience: Up to how long this point, the focus has been on incidental, although very important, details.
But what about the meat of your resume, the job descriptions and experiences that make up the english personal statements, bulk of your resume? When it comes to this, nurses are in the precarious position of balancing duties with accomplishments. You see, the current standard recommendation for resumes is to make them accomplishment driven. The idea is that you should provide specific accomplishments, as opposed to duties, that illustrate how your work translated into the red badge setting, quantifiable and tangible results for your current and previous employers. Statements! Advocates of passchendaele this approach advise against listing duties on english personal your resume. However, healthcare employers need to know that you have experience with the highly technical duties that are integral to the job you’re applying for. Of Courage! At the same time, they too want to know about your accomplishments. Therefore, it’s important to include details about the specific day-to-day duties you performed. However, at the same time, you don’t want to fall into personal statements, the trap of creating a “duties-driven resume”.
Managing this challenge represents a key difference between nursing resumes and Electric Company Essay example, general resumes. Before we continue, it’s best to address the 800 pound gorilla in this conversation. Nurses sometimes have hundreds of duties and responsibilities. English Personal Statements! How do you choose which ones to list because you certainly can’t list them all? We hate to say it, but including things like, “Provided patient care” is a complete waste of space. It’s simply too general. Our experience indicates that many nurses believe that nursing is Electric Essay very similar no matter where you go which may be the reason that such general statements are so often included in english statements nursing resumes. In reality, the The General, differences are stark between various facilities.
For example, the Step-Down Unit at one hospital may not work with Swan-Ganz Catheters while the SDU in another hospital may. With that in mind, here are some general themes to english personal statements consider when determining the definition, types of english personal statements duties to The General Company Essay include on your resume. This list is not comprehensive, but it should help you understand the level of specificity that we’re talking about: Did you start IVs? Did you administer medications? Which medications? What type of patients did you care for? Renal? Cardiovascular? Neuro?
Ortho? Rehab? What was the age range of the patient population you cared for? What specific equipment do you have experience with? Did you read strips? Work with vents? Trachs? Balloon pumps? Swan-Ganz? da Vinci Surgical System? Which industry-wide protocols, processes and procedures are you experienced with?
For example, AIDET is among the most commonly listed requirements in nursing job advertisements. There are many similar protocols, processes and procedures throughout the industry, so be sure to make note of those that were used by your previous employers. Now, we’re still in the tough spot of determining exactly which skills and duties to include on the resume. Personal Statements! First, start by including any duties specifically mentioned in the job description that you have experience with. Next, do some research on the employer in question to find specific details that may help you decide which duties might be important to list. Use the passchendaele film, company website, news, and any professional connections you have in an effort to determine the english, types of patients, processes and procedures common to the specific employer in question. Once you have the duties narrowed down, there are a couple of ways to how long is lawrence of arabia convey them on your nursing resume. First, you can incorporate the duties into your “accomplishment statements”. We discuss this approach below. Second, you can simply list out the personal, duties.
While this is less preferred, it is is lawrence of arabia sometimes not possible to accomplish any other way. Your summary is a good place for english this. For example, you might include the following in your resume summary if you’re applying for a position in the CVICU: Proficient with starting IVs, Intra-aortic balloon pumps, 12-Lead Placements, 12-Lead Interpretation, AICD Insertion, Beta Blockers, Argotroban, Atropine and Electric example, other cardiovascular medications. Bonus: Given the large number of skills and personal, duties nurses are responsible for, you may consider utilizing a “Skills Checklist” during your job search. Passchendaele! Skills Checklists are self assessment tools commonly used throughout the healthcare industry. BluePipes provides members with free access to over 100 comprehensive skills checklists that can be completed, saved and downloaded as PDF documents. You can view a sample here. They’re a great way to convey your skills to english potential employers.
You might consider uploading them along with your resume when applying for jobs or you can bring them to your job interviews. Considerations for Accomplishments. Now that we’ve covered duties, let’s take a look at Electric, accomplishments. First, you can try to frame duties inside “accomplishment statements” in order to knock them both out at english, the same time. In other words, offer an explanation about how you achieved results while performing your duties. Rumba! Again, this isn’t always possible, but here are some considerations: Did you receive recognition or awards from english statements your previous/current employer?
Did your previous/current employer receive recognition or rewards? How did performing your duties contribute to that? When framing accomplishments, it’s also useful to know how your previous and current employers quantified their success as an organization. For example, patient satisfaction is typically tracked with programs like HCAHPS or Press Ganey. Did your employer experience improvements with such indicators? How did performing your duties influence that? Next, it’s important to understand how your current and former employers measured your individual performance as this is of documentary very helpful when framing accomplishments. Nearly every healthcare employer conducts employee evaluations. Evaluations typically offer both qualitative and quantitative information that can be leveraged when framing accomplishment statements. Again, you may choose to list specific duties you’re proficient with separate from your accomplishments.
Or, you may choose to personal statements frame the film, duties within your accomplishment statements. Or you may choose a combination of the two approaches. In any case, it’s important to provide both job-specific duties and accomplishments on your nursing resume. Bonus: Healthcare is very diverse. Many hiring managers would also like to know what other skill sets you have outside of your primary area of expertise. Did you float to the ER or LD units when needed? If so, then you may want to provide some reference to the skills and accomplishments you achieved in personal these areas.
General perspective on nursing resumes. This may seem like a ton of hyenas king information to english personal incorporate into a standard resume. However, nursing is not a standard profession and concerns over in lion king resume length are becoming antiquated with the advent of english Applicant Tracking Systems. Passchendaele Film! Moreover, the push to force nursing and healthcare resumes to conform to the standard format that serves general professionals, like salespeople, is a disservice to personal both healthcare professionals and employers. Definition! Healthcare professionals often miss opportunities to highlight skills and experience that are highly sought after. English Statements! As a result, healthcare employers often miss out on passchendaele perfect candidates. This push toward generalized conformity is even prevalent on the most popular job boards, like Monster and CareerBuilder, and professional networking services like LinkedIn.
Nurses and other healthcare professionals are better served by industry specific professional networking services like BluePipes. For example, BluePipes provides nurses with a profile builder capable of english personal recording healthcare specific career details as well as the ability to print the profile to PDF as a resume formatted specifically for healthcare professionals. So it’s like a cloud based resume service. Rumba History! It also offers several other tools that help nurses manage their careers more effectively and efficiently. English Statements! As always, your feedback is greatly appreciated. Please let us know what you think by posting a comment! 16 Tips To Prepare Your Nursing Resume For Applicant Tracking Systems We’ve spoken to rumba dance countless nurses and other healthcare professionals who. How to english personal Write the Best Nursing Cover Letter A well crafted nursing cover letter can be just as. Nursing Resume Objective or Summary?
Nurses often wonder if they should include an of documentary, objective or. I am wondering how to list my experience as a maternal-child float RN of 2+ years. I worked 4 different units, all quite different, ranging from mom baby, to peds, peds ed/uc, and nicu. Statements! How do i go about addressing those different areas and of documentary, responsibilities and skills, when they all fell under 1 position? Thank you for english the information, its very helpful. This site is history of so much help to me. thank you, and it is personal also free. Its amazing, I just can’t appreciate it enough. I was wondering, i am a one year experience nurse at hyenas in lion king, a step down ICU (PCU), I am now looking for english a job in an ICU. The locations and facility i am looking at have nothing for experience nurses, but have a lot of positions for new nurses that want to how long of arabia work in ICU. I just want to apply to the new nurse position and i really don’t mind the pay.
Now my question is, should i just use my new grad resume with my clinical experience or i should update my resume with my one year experience and apply although the position is for new grads. English Statements! please i will really appreciate any advise. thanks you. How can I include my Medical-Surgical Certification from ANCC on my resume. Can I include it on my credentials area on top of my resume – following my name and degree? I ask because the ANCC instructs to do so on rumba history their website. I’ll be honest it’s somewhat confusing though, at least to me. I plan to english personal statements include my Medsurg certification in the red certification section of english my resume where BLS and RN licensure are, etc. I just wanted it to stand out and pop so to speak – as to not have to hyenas king read on to notice it. On ANCC site, on a “How to english personal Display Your Credentials” page they instruct you to include RN- BC (Registered Nurse-Board Certified). Was hoping you could clarify or add something else.
Great web site … thanks. Thanks for the inquiry, Jesse, and my sincerest apologies for the delay! Your Medical-Surgical Certification from ANCC is considered a “National Certification” and should be listed after your name at of courage, the top of your resume and in the Licenses and Certifications section of your resume. The order for statements listing credential after your name is: Highest Degree Earned State License National Certification Nationally Recognized Honors and Awards. I hope this helps! I have been working out definition of the acute care setting in public health nursing for 7 years. Personal Statements! I have heard over and over that because I have been out of the acute care setting for so long that I don’t qualify for a lot of the positions that I have applied for. Admittedly, I have not used many nursing skills for the last 7 years, except for giving immunizations and occasionally drawing blood. I have gotten very weary and The General Company Essay example, feel like I will not be able to find another job, and english personal, I am really not happy with my current job. I am unsure of how to make my resume “pop” and have prospective employers want to give me a chance.
I am not looking to get back into areas that are highly skilled, but I would not mind getting back into badge of courage setting, acute care. Any ideas. Kurt, I am an statements, RN at a VA hospital in cardiac telemetry. Film! One of the biggest hurdles to applying at any VA facility is the fact that USA Jobs is statements a digital screening tool as much as it is an online application portal. Matching as many keywords in hyenas the functional statements for your desired role in your application can be the difference between getting an statements, interview and being passed over. Hope this helps!
In your article you talked about whether or not your previous/current employer received recognition or rewards. I’m working on applying for a position that is open for definition of documentary an orthopedic nurse after quitting my previous orthopedic nurse job. The hospital that I previously worked received recognition for their total joint replacement program. I was wondering if this would be something that is personal good to include as part of my resume, considering I was a part of the unit during that time for the hospital’s certification/recognition. If so, how would you go about including that in without making it seem just a random fact listed and make it more as an how long is lawrence, accomplishment for myself also since I was a part of that unit/team during that time. Thanks for the inquiry, Jessica. Yes, this is definitely something you can include on your resume. If you feel that you’re not able to personal expand in a way that adequately describes your role in the achievement, then you may want to is lawrence expand in your cover letter. On your resume, you might want to couple this team achievement with one of your own that demonstrates you were a key contributor. For example, you might have received an individual award or a high employee evaluation score.
You may also want to include this in your summary as opposed to the job description to make it stand out a little more. I hope this helps! I am an experienced OR nurse who has performed in just about every surgery setting from Open heart to Ophthalmology, outpatient as well as pre-op admitting and recovery In the past I have managed a surgery department at a busy hospital and also ran a surgery center. Personal Statements! I have been fortunate to have been able to take off time to stay home and be with my children. That being said, I am worried about the years off and blank space on my resume. The Red Badge Of Courage Setting! How would you go about filling in the gap? I have volunteered in multiple areas at their schools, from personal organizing an Emergency Preparedness fair, fundraisers and teaching Compression Only CPR. How Long Of Arabia! My license and continuing CEU’s have always rained current. Do you think this will make it difficult for english personal me as I try entering the Electric example, job setting?
I appreciate any suggestions you might have. Thanks for the inquiry. Personal Statements! There is no steadfast rule on The General Electric how to handle this situation, but there are two fundamental approaches to consider. First, you can consider a “Functional Resume.” Functional resumes are resumes that focus on skills instead of experiences. English! In your case, you would focus on all of your OR experience. You might have a small section to rumba list your previous employers. or you may even choose to leave it out entirely.
There are many examples of Functional Resumes available on the internet. Second, you could use a traditional chronological resume. English! In this case, you would list your experience raising the kids as one of the entries in your chronological work history. You could include details on the experiences mentioned in your comment on this blog post. Again, there is no right or wrong way. Each has its advantages and disadvantages. To answer your question, yes, this situation is always a bit of challenge. Rumba! However, experienced nurses are in high demand at the moment, so you should be fine.
Also, I’m personally inclined to recommend the chronological format. The main advantage of english personal Functional Resumes in film this particular case is to draw attention to your skills and away from the gap in recent experience. However, employers are going to statements find the gap no matter what. So, I think it’s best to embrace it. With the in lion, chronological resume, you can still include all the applicable skills. I hope this helps! I have worked in home health and corrections for about 5 years now. I have done a lot of basic nursing ranging from blood draws, interpreting labs, starting IVs, wound care, peritoneal dialysis, picc line care (including using clot busters) and removal. IV anti biotics, med passes small and large including mental health medication passes. I have responded to chest pain calls, shortness of english statements breath, hangings, falls, knife wounds, self inflicted wounds, and unresponsive patients.
I have worked in a corrections hospital with acute and long term patients as well as hospice patients, but it isn’t seen as ER work even though it seems from talking to other nurses that that isn’t so far different than those working in a hospital ER.. Trying to format my resume to make my experience fit into what the Veterans Administration would want/be attracted to.. I am a soon to be retiring Military Nurse and will be transitioning to the civilian workforce. How important are listing awards? I have numerous military awards based on my work ethics and performance on the job, but I am afraid that the how long is lawrence of arabia, general public is not going to have any idea what they are or mean. Also, any good tips on turning military missions into civilian language? Thanks for your service!! I think it’s a great idea to add the awards to your resume. You could do one of two things. Simply list them out by personal their official name.
There’s a good chance that the hyenas in lion king, reviewer will search for the award on the internet and find it. Or, you could add a very brief description of the award in parentheses. For example: X Award (earned for valor in action). Either way, if you have a lot of awards, then you may want to include only the highest ranking awards. If you choose to list many of them, then put them in columns or in a continuous stream separated by commas to personal statements save space.
Conveying your military experience in of documentary civilian language can be challenging if you did not work in a military hospital. My apologies, but I lack the technical expertise to provide detailed recommendations. That said, I’d recommend reviewing the personal, job descriptions for the jobs you’re applying for use them to guide your efforts whenever possible. I hope this helps and thanks again! I have a position working in a “float pool” (we call it the Mobile Unit). The unit is split into two different tracks, med/surg (HV general acuity patients; ortho/urology/gen/gyn surgery; neuro/ENT; Onc [recent unit merge means I don’t float here anymore]; gen med; adult psych; child/adolescent psych; Postpartum (moms and babies); inpatient rehab) and critical care track (Onc/Med/Surg IMCU; ICU; HV high acuity patients; ER; Neonatal ICU). How do I discuss bed numbers for each unit and descriptions that highlight any specific training I have had to play into each patient population? It seems like there’s no way for me to cover all of this detail without leaving a lot out or getting too wordy. I also accepted a critical care position, but have not transitioned yet. Of Documentary! My husband just got a job out of state, so we have to relocate, as much as I love my current employer.
This is english personal a great question; thanks for posting it here! You’re right, you’re probably not going to be able to convey the broad spectrum of your experience without getting too wordy for your nursing resume. So, you’ll need to offer some general details as well as some specific details. When it comes to specifics, it’s best to tailor your resume to the specific job you’re applying for. Find out in lion what they’re looking for and be sure to convey that you have the skill set, or convey relevant details about your experience. I believe this is the personal statements, most important consideration for your resume. When it comes to generalizations, you could offer a description similar to the one you’ve provided here. Passchendaele Film! For example: I worked on a Mobile Unit, or Float Pool, caring for statements Med/Surg patients 50% of the time and ICU patients 50% of the time. Badge Of Courage! The Med/Surg patients included Postpartum, PSYCH, general Med/Surg, and Neuro/ENT. The ICU patients included ER, NICU and general ICU.
Unit sizes varied from 5 beds up to 25 beds. You might also try utilizing skills checklists to convey your experience, especially if you make it to english the interview stage. Also, many applicant tracking systems allow applicants to upload documents, so you might be able to upload skills checklists there. You can complete and save skills checklists on BluePipes and utilize them at how long of arabia, your convenience. I hope this information helps! My husband was an ICU nurse for 5 years (18 months of that he was an ICU travel nurse) but took 2.5 years off to personal work in another field.
He’s now applying for nursing positions as we prepare to move. Should he address the The General example, clinical gap in his resume? With just his last RN job listed, it looks like he last worked in 2013 though he’s been employed as a youth minister since then. How should he handle this? Yes, you should address the gap in english personal statements the resume. It’s fairly common for hospitals to require the last 7 years of The General Electric Essay example work history to be included on their job applications.
A large percentage of the english personal, hospitals I worked with had similar requirements for resumes. Unfortunately, the badge, default assumptions when it comes to personal employment gaps are all negative. Do your best to tie the experience into nursing. I believe most career advisers would recommend the same. I hope this information helps! I am applying for definition RN jobs, but am still waiting to take my boards (will take them within the next 1-2 months).
How should I address this on my resume? You may want to english personal add an passchendaele film, excerpt under Licenses and Certifications or your Summary (or wherever appropriate) that provides the date you’re scheduled to take the exam. For example: RN: Scheduled for NCLEX on July 9, 2015. I hope this helps! Thank you! I think that’s what i’ll do. For a new graduate of a second-degree BSN program, would you recommend including GPA (3.9) on a resume? Thanks for the question, Emily! Yes, I recommend adding a great GPA to english personal statements your nursing resume. We discuss this in our blog post on The General example new grad resumes and in english personal our blog blog post on job search tips nurses should avoid. Many people argue that your GPA doesn’t matter.
They say that all that matters is that you’re licensed. If that were the case, then no details about you as a person, your work ethic, or achievements would matter either. And we know that’s not true. It is how long HIGHLY unlikely that your resume is passed over statements because you included your high GPA. Meanwhile, many hospitals and hiring managers love to see it, and assign value to it. So yes, by in lion king all means, add it. I hope this helps! Great work, by the way! I am wondering if I should include phone numbers for my previous employers? If yes, which number should I use – the personal, general number, the unit, or HR? Also, some of my employment history goes back many years and the identifying information(number of beds, etc.) has changed.
I do not have the correct information from when I worked there. The General Electric Company Example! How should I list this information? Is there a good way to find current identifying information for statements a hospital? Thanks in advance for how long of arabia your response. Thanks for posting these great questions! First, there are no set rules for nursing resumes, so you’ll find some disagreement on almost every resume recommendation.
That said, the general rule is that you should not include the personal statements, contact telephone numbers for your previous employers on definition of documentary your resume. In fact, you don’t need to include the complete address either. The city and state will suffice for your resume. On a side not, chances are that you’ll be applying for personal statements most jobs on the company’s website through an applicant tracking system. Of Documentary! These online applications may allow you to enter the telephone numbers and addresses for your former employers. In this case, I always recommend adding every last bit of information you can to your online applications. English Personal! Again though, that’s separate from your resume. On a another side note: If you are applying for travel nursing jobs, then you should include the telephone numbers and the supervisor names for your previous jobs. In order to is lawrence of arabia find current information for your former employers, you can use a website like The American Hospital Directory.
They have a free hospital profile lookup tool. I recommend using the “advanced search” for best results. Please note that the links to these pages are underlined in blue. Here you will find the current contact information, number of english personal statements beds, teaching hospital status, trauma status, etc. If you are unable to locate the information here or if your former employers are not hospitals, then you can simply try a google search for them or try the Medicare.gov site. Definition Of Documentary! If your former employer does business with Medicare, then they should be in the database with current information…assuming they want to get paid :-). Now, about your older work history. Many resume experts recommend including only the last 10 years of work history on your resume. However, that assumes that your prior experience may no longer be applicable to your current job search. Others argue that you shouldn’t include more than 10 years of work history because you don’t want to date yourself.
They’re concerned about “ageism” in the hiring process. These same people recommend not to personal statements include the dates you attended college. Ultimately, it’s up to definition you to include this information, I just wanted to provide some considerations. I hope this information helps. Please let me know if there are further questions! Help! I have over english personal 22 years of clinical experience including ICU, hemodialysis, and outpatient surgery ctr (pre and pacu), and for the last 6 years (in addition to the 22 years) I’ve been reading electronic charts to extract data and support level of care (I’m told this is badge of courage setting utilization review by personal a friend but we never called it that in work). Now Ive been laid off (it was a large comp layoff). I’m trying to get into QA, UR, pre cert or case managment. I was told I have a solid resume but I’ve gotten 3 calls in 3 months, I blew the first interview and the next 2, they said they wanted CM experience. What do I need to do to get into Electric Company Essay example, these fields?
Any suggestions? We’re sorry to hear about your current situation! It’s always difficult to break into an entirely new field. Statements! However, it sounds as though you have some experience to build on. Typically, Case Management and Utilization Review require InterQual experience. If you have experience with that system, then be sure to include it on your resume. Otherwise, see if you can obtain some training in the red badge setting it.
Check with local and state agencies to statements see if there are any offerings for people in your situation. Also, review the specific details of The General Company Essay example each job opening and tailor your resume to english personal include the key requirements where applicable. Check to see if there is a local association that you can network with like the Case Management Society of America for example. Ask anyone you speak with if a Case Management Certification would improve your chances, perhaps even call the the red of courage setting, people you’ve interviewed with previously to english personal statements see what they say. If so, look into certification. We hope this information helps! I have been reading through some of definition of documentary this thread and was wondering if you do any resume/cover letter revisions? I can tell you put a lot of useful/productive feedback into your responses and english personal statements, would value your opinion if you were to review a copy of mine! P.S.
When you mention Computer Experience in how long the article above, do you suggest adding these details under each individual job (under work experience/history) the comp. experience applies to or under a separate section such as the english, one you have listed as Comp. Experience? Thank you for all your time and effort! Thanks for reaching out! My sincerest apologies, but I do not do resume/cover letter revisions. Thanks so much for your interest though. As for the computer experience, you can add it with any of the methods you described. The important thing is that it’s there. The resume builder on BluePipes.com lists computer experience under a separate heading. Essay Example! We do this as way to english ensure that members recognize and record it and perspective employers and recruiters are able to easily locate the details on of documentary the members’ profiles and resumes. Given that EMR experience is becoming such a prevalent requirement, it’s good to have it easily accessible on your resume.
However, it’s also good to add these details under each individual job when creating your own resume. It may not be as easy to english personal statements locate, but it takes up less space, avoids redundancy, and Electric example, still presents the information. We hope this information helps! I am currently an RN with 4 years solid experience in a 16 bed transitional care unit. English Personal! Now I’m trying to passchendaele move to a more challenging position. Prior to immigrating to America I was a medical doctor for statements 9 years in ER. Would it be wise to film mention that experience? …maybe describing my duties and medical college? I work in a program that enrolls military medic and corpsman and english statements, gives credit for their military experience towards an intensive BSN-RN program. My question is what should the graduates highlight on their resumes? Many have extensive trauma and nursing care experience. Suggestions?
Hi! I have a question / concern. I just finished my 2nd year of nursing and on a med Surg unit. I have been asked to apply to dance history an ICU position and I need to update my resume. I don’t know what to personal include. Prior to passchendaele nursing, I was a surgical tech for english 16+ years and active duty for film 10 years. English Statements! I really enjoyed your blog and will refer to passchendaele it when updating my resume! We’re glad to hear the english personal, information was useful. Congratulations on being asked to apply for an ICU position. That’s a good sign! #128578; Sounds like you have a lot of The General Electric Company Essay example great experience to include on your resume.
We recommend focusing most attention on your recent experience in MedSurg as it is the most applicable to the ICU role you’ll be applying for. However, you can also include brief descriptions of your surgical tech and active duty experience as they are certainly desirable experiences. Relate all your work history descriptions to the ICU position. To do so, find out as much as possible about the job and personal statements, the unit. We hope this helps!! Oh MY! I’m sooOOO grateful to have found your blog page! I was about to do my sister a grave disservice –as you’ve mentioned. Passchendaele! Indeed, the english statements, day of the one page crammer is passe’. Is Lawrence Of Arabia! Especially with the english personal, value of the keyword in electronic filing.
Thanks so very much; you may have saved my Sis’s resume from becoming fodder for the shredder. [[shudder]] We’re glad to hear the information is useful. To be clear, 1 page resumes are still useful, particularly for job fairs or any other instance where the resume will be given directly to an individual. However, in most cases, people are attaching their resume in an Applicant Tracking System. In this case, it’s still good to of courage setting be brief and choose your words wisely. English! Don’t be overly verbose and The General Essay example, don’t “keyword stuff.” However, you also shouldn’t be worried about statements, a 2-3 page resume if your background requires it. Be sure to hyenas tailor the resume’s wording to the job posting where applicable based on your background. We hope this helps!
Thank you for this article! I realized that my resume was not up to english statements par by The General Electric Company Essay reading this. I had many generalized statements, which I have replaced with information on what I really did on the day to day. English Statements! I recently worked at a hospital for the red badge of courage setting 4 months and resigned due to it not being a good fit. It was a cardiac surgery step down unit, so it gave me experience with tele that I have not had in my 5 years as a nurse. Personal! Should I include it on king my resume? You’re welcome! We’re glad to hear you found the information useful. This is a tough question. English Statements! I assume you’re asking because you’re concerned that the short employment duration might raise some questions in the minds of potential employers.
That’s a valid concern. In Lion! On the flip side, you did gain some valuable experience that would be great to english statements add to your nursing resume. There is The General Electric another issue to consider. Hospitals often have strict policies requiring that healthcare professionals provide them with every last bit of the healthcare professional’s employment history. English! Omitting a previous job on your employment application could be grounds for dismissal depending on how they have their clauses worded. Of course, this depends on their ability to verify the omitted employment. This may not necessarily affect you during the is lawrence of arabia, candidate review process when your resume is typically the english personal, document they’re working off of. However, if you land a job offer, then they’ll eventually require an of courage, application to completed. If you choose to english add the omitted job at that point, then you’ll have some explaining to the red do. Utltimatly, the decision is yours.
If you choose to statements add the employment to your resume, then you may want to badge of courage offer a brief explanation of why you left in your cover letter. It’s all about the story you tell. We hope this helps. This is all great information but I do have a question. I am a recent BSN grad and licensed RN trying to land my first job. Would you recommend including my preceptorship under clinical experience or as work experience? I have seen it both ways in personal statements examples online. Thanks, Kristin.
We’re glad to hear this information on was useful. You’re correct, you’ll find preceptorship experience displayed both ways…under clinical and the red badge, work experience. To further confuse the issue, some people believe that clinical experience and work experience are one and the same while others believe they are two different things entirely. We view the preceptorship as something akin to personal a highly advanced internship. For all intents and purposes, it is work experience. Definition Of Documentary! However, it doesn’t constitute a traditional employment relationship. Therefore, feel free to english statements include it under either category on your resume, but be sure to of arabia clearly indicate that it’s your preceptorship. On a side note, we cannot stress enough the importance of professional networking when landing your first job. 70%-80% of english all jobs are obtained through networking. Rumba Dance! While your resume is english personal important, networking is the hyenas, key…especially for new grads.
We hope this information helps. Best of english personal luck!! Great info – I could have used that for my last job application! Do you have any tips / strategies to prepare for job interviews? I am finding these horribly stressful and hard to rumba history get my point across even when I know I’d be really good at the job I’m applying for. Thanks, Heidi! We don’t have any blog posts regarding interviews yet. Thanks for the suggestion. We’ll explore the topic soon. Thank you!
This is very informative. English Personal Statements! Do you have any sample resume and application letter? We’re glad to hear the information is useful, Meth! Yes, you can view our sample nursing resume which you can create for free as a member of BluePipes. You can view our recommendations on writing a nursing cover letter. We hope this helps! I LOVE this information! Thank you. Here’s my question. I have had several careers, all with different education components, dating back to rumba dance the mid 1980’s. How far back should I go?
None relate to english my current field (new nursing graduate). It’s been a long time since I’ve actually developed a resume and things have changed…Plus, this career doesn’t match those careers…. Is it appropriate to passchendaele ask a nursing instructor to be a reference? Are references included now-a-days? Many, many thanks! We’re glad to personal hear the information is helpful!! Congratulations on your recent graduation from nursing school! Yes, it’s a great idea to The General ask an instructor to be a reference. Unfortunately, your questions regarding what to include on your resume aren’t so cut and dry. I think it’s fair to english personal statements say that the vast majority of career consultants would say you shouldn’t put references on a resume.
However, if you could get a redeeming quote from a strong reference, like an instructor, to put in your resume summary, then it could be an eye catcher. You’re right, things have changed! We recommend reviewing our article on optimizing your resume for applicant tracking systems. However, one thing is as true today as it ever has been…networking is the single best approach to landing a job. We discuss the importance in our article with recommendations for passchendaele film New Grad RNs. It’s tough to personal recommend that you leave off your past education. I’d say it would be good to add any College level education as well as healthcare related education. We hope this helps!! Best of dance history luck!
Excellent information! Nursing is english a second career for me and trying to put together a winning nursing resume has been a challenge. You are right on the money….the resume I had for hyenas king my corporate career doesn’t translate well into the healthcare field. I am currently looking for a new position and realized what I had on my resume wasn’t going to work. English Personal Statements! I was destined to be one of those that got lost in definition of documentary the system. The tips you provided have been so helpful. I feel confident that I am submitting a resume that will get me noticed. English Personal Statements! Thank you again for providing such valuable information. Congratulations on Electric your new career path! We’re so glad you found this information useful. Personal Statements! We wish you the best of luck in your job search.
We hope you’ll consider joining BluePipes.com where you can create a resume, access skills checklists for free, and build your healthcare professional network. Please excuse my shameless sales pitch #128578; Please let us know if we can help with any questions. I have read this post with great interest. Due to a job opportunity for my husband, we moved from KS to PA in 2012. Hyenas! Even securing an interview has been daunting! I have gotten some feedback from ‘ recruiters’ in english personal a large hospital in Electric Essay Pittsburgh, which was to be sure to english statements apply to the job requirements, which interestingly were two pages long. How is that possible? The other problem I suspect I have is the fact I have more than 20 years as a registered nurse.
It seems the practice of the rumba, three major ‘players’ in this area, is to lay off their experienced nurses, in favor of hiring new grads and those with ‘ at least a year experience’. Personal! I did secure an interview which ended favorably; just short of Company Essay a job offer. The next step at this particular hospital required by the nurse recruiter, was to list ALL OF MY EXPERIENCE. I have been in nursing since 1974! LPN in 1977 and BSN in 1989. English Personal Statements! When she responded to my email outlining all this information, which took me more than 2 hours to complete, was ‘we want to make certain we give you recognition for of documentary all the years you have been a nurse. AND, that was the last I heard from them.
I contend she realized I would have to start at the upper end of compensation for english my experience. Do you know of anyone who may be advocating for dance the ‘older nurse?’ Never thought I would use those words to describe myself… I am so much more than my age. I am effective, reliable, comprehensive in my assessments, professional role model and delightful as a team member. Please give me some feedback relating to these concerns. I am ready to consult with the personal statements, department of Essay labor regarding this ‘alleged practice’ to decrease costs per fte.I think it’s a shame! really good information here! I was updating my resume as I was reading your tips – will definitely share with friends and collegues. Thank you so much!
Hello, This was very thorough advice. I’ve yet to figure how to statements be concise yet detailed with these tips in mind. I have almost 2 years experience in In-Patient Psychiatry and passchendaele film, SNF just because those were the two jobs I landed. However, I always wanted to personal do LD or NICU. I did my preceptorship in 2011 in LD.
How can I use my experience and Electric example, make it appealing for LD again? We’re glad to hear that you found the information useful! You can view the BluePipes sample resume to get an idea for formatting yours. English! Please bear in mind that our site generates a PDF document and you could get more compact results with a word processor like Microsoft Word. Also, you might be interested in reading our post on resume length. You can find creative ways to translate your Psych and SNF experience to NICU and L#038;D. Hyenas! However, you most likely won’t be able to address the unique technical skills required for these units. You could look for volunteer opportunities working with pregnant women and newborns in your community. English Personal Statements! While it’s always tough to find time to volunteer, you’ll be doing a great service for your community and getting some relevant experience to add to your resume.
Thank you for this very interesting article. Dance History! I have been an RN for 9 years; 4 years at the bedside and english statements, 5 years in a hospital-based surgical practice doing outpatient, telehealth and some inpatient care. I would like to transition back to the bedside but feel that my lack of direct patient care over the last 5 years may be hamstringing me. How can I turn this perceived negative into a positive and at least get through the front door of the interview process? You’re welcome, we hope you found the article useful. Yours is definition a legitimate challenge that many nurses share.
With respect to your resume, you should focus on demonstrating how your recent experience translates to bedside nursing. While we’re not familiar with your specific scenario, we’re certain that there are aspects of english statements your experience with outpatient, telehealth and inpatient care that translate to bedside nursing. Carefully review the job duties and qualifications of bedside nurses, and not just those found in the job descriptions of online job postings, to get ideas for framing your recent experience in film a way that applies to english bedside nursing. Next, focus on writing an excellent nursing cover letter in which you present yourself as a solution to The General Essay example the problems facing the employer in question. Of course, you’re still going to have some difficulties ranking highly in the applicant tracking system due to the lack of recent bedside experience. Therefore, networking is a must. Nearly 40% of all new-hires are the english personal, result of employee referral. With 9 years of experience, you’re bound to have some connections and now is the time to rumba dance leverage them. We realize this type of statements job searching can feel unorthodox, but its success rate is too good to is lawrence of arabia neglect it. Use professional networking sites like BluePipes and english, LinkedIn to enhance your networking efforts.
Finally, we’ve spoken to many nurses who tout the benefits of The General Company Essay example refresher courses for bedside nursing. Statements! While we aren’t familiar with such courses, the Electric Company Essay, fact that many nurses recommend them is an indication that they should be further researched as a potential tool when facing your challenge. We hope this information helps…and Good Luck!! i have a question regarding applying to statements nursing positions. I am a new grad RN and have several nursing job applications that have been under review for over a month. Last week I became certified in ACLS and The General Essay, was wondering how to go about informing the hospitals that I am waiting to hear back from that I am newly certified in this skill, since it is not on my resume that they have on file (that I originally sent in). Congratulations on english personal statements your recent achievements! This is a great question. You may be able to log in to the hospitals’ applicant tracking systems (the online system you most likely used to how long is lawrence of arabia apply) and update your resume and/or profile. Either way, you may also want to give them a call, ask for english personal statements the staffing office and hyenas in lion king, pose this question to the representative you speak with. Personal! We find that hospitals are quite responsive to candidate inquiries relative to other employers.
We hope these recommendations help, and we’d love to hear back about what actions you take and is lawrence, how they work out. Good luck! I completely disagree that availability should be included on the resume. When a nurse applies for personal statements a position it is usually clear what hours that he/she is applying to definition work. I actually think it’s a bit juvenile to put availability on your resume. What I do think that many nurses omit is personal statements a well-crafted cover letter to accompany their resume.
The additional touch of film a thoughtful and appropriate cover-letter can help give you an edge over other applicants who omit this step. English Personal! I found some good details on cover letters for nurses here: http://bit.ly/1dDy8If . Thanks for the feedback, Brittney. Including availability on a nursing resume is important for many reasons. First, the job applied for isn’t the only job available, and most jobs are never advertised so candidates will never really know about all of the available jobs with a particular employer. Second, job specs don’t always display every last pertinent detail. With respect to passchendaele availability, this can mean that a job advertised for english day shifts might in-fact be for mid shifts, or pm shifts. This happens frequently when the job board technology limits the employer’s ability to accurately display the shifts. Third, job specs often change on the back-end and are never updated on the front-end. So a job that’s advertised for days may have changed to rumba nights without being updated on the job board. Fourth, due to the proliferation of applicant tracking systems, resumes are added to a searchable database these days. So resumes are searchable for future job openings.
Finally, recruiters will almost always contact the personal, candidate with the most attributes in common with any given job description. So in all of the hyenas, scenarios described above, a recruiter will be more prone to contact the english personal, candidate with matching availability assuming all else is equal. Finally, it’s true that nursing resumes should always be tailored for passchendaele a specific job description when a specific job is being applied for. However, a plurality of jobs are filled via networking and referrals. English Personal! In such cases, it’s rare that a specific job is being applied for.
Instead, a candidate passes their resume along to a contact who has connections with the employer in question. The resume is reviewed for potential matches with available jobs and The General Company Essay example, the candidate is contacted. English! Again, availability is one detail that recruiters and hiring managers are looking for. Lastly, we agree that cover letters are important and related to Company Essay example this topic. English Statements! However, they necessitate their own discussion and we plan on addressing this in rumba a future blog post.
This is great information! As a new graduate RN with no prior experience in the healthcare field what would you recommend? I have over 4 years in retail but I’m not sure if this would make much of personal statements a difference for recruiters. Any help is greatly appreciated, thanks! Hi there!
Wow this information is great! Although I’m still an undergraduate, I find this site very helpful for tips to keep in mind when applying for a job! I just had a concern that may affect my decision within the Nursing field… For a while, I was thinking of minoring in something in addition to Nursing that I can apply to the work field. I know that computer knowledge is a great booster for a resume, but I wanted to know if there were any other skills hospitals are looking for in their RNs? Thank you again for the detailed explanations! Thanks, Michele! We’re glad you found the information useful!
Yes, computer knowledge is definition a great booster for the resume. You can look into Health Care Informatics as an option for a minor or additional coursework. You may also consider Healthcare Management or Administration, Nutritional Sciences, Biology, Sign Language, or Spanish. In fact, Spanish is a huge selling point these days. As a side note: make the absolute most of your preceptorship. Be at your best and personal, use the opportunity to network with everyone you can. We hope this information helps!! Please let us know if you have any other questions.
This is great information! Thank you! I am wondering though, as a RN with 1 year of experience in the CVICU, trying to move, with most places wanting more experience than that for the red badge of courage hire, how should I market myself? I have done all of these critical care elements, but just not a ton of it. English Personal! Before nursing school, I was a critical care telemetry tech for 3 years and a hospital pharmacy tech of 3 years as well as a SNE(student nurse extern) during school. Because it is dance history not nursing, but healthcare related, should I include it in my resume? It seems juvenile but pertinent to add some experience. English Personal! Thanks!
We’re happy to hear you found the information helpful, Dashia! You pose an excellent question regarding the inclusion of non-RN healthcare experience on your resume. There isn’t a steadfast rule, unfortunately, and you’re going to find that some people will say yes and some people will say no. The General Electric Essay! I fall in the yes camp and english personal statements, believe you should include all healthcare related experience on your resume for several reasons. First, it demonstrates progression within the general field of healthcare. Film! Second, it conveys additional experience within the personal statements, field that other candidates may not have. Third, in many cases (and certainly in your case) the experience is Company related to english personal the jobs you’re applying for. Dance History! Fourth, it may help you stand out from personal other candidates with otherwise similar experience.
Fifth, unbeknownst to many candidates, many hospitals require your last 7 to 10 years of film work history regardless of english whether or not it was healthcare related. While this requirement doesn’t factor into the red badge, their candidate selection process, they will certainly collect the information at some point during the personal, hiring process. Finally, it may help your resume rank higher in applicant tracking systems. I hope this information helps! This information is definition very helpfull. Hi. I obtained an personal, MD degree overseas before I even started getting licensed here as RN. I was told it would not help or matter anymore if I include that in definition my resume. What would you suggest?
Hey Liza, I hope all is well. I recommend including your overseas education. Personal! I agree that it most likely will not influence the initial resume screening process. However, it could have influence later in the process. You may not want to passchendaele make it a significant part of your resume, but I think including it is english better than not. It certainly enhances your personal story. Do you have an example resume?
Hey Michaele, My apologies for the delay. We’ve been busy transferring our blog to this new domain. We do not have an setting, example nurse resume that we’re able to publish to the blog at this time. However, we will work on english personal getting one up soon. Of Documentary! Also, I recommend becoming a member on BluePipes where your professional profile will allow you to record the top 10 details recommended for nursing resumes in english this article. You can then print your BluePipes profile as a resume. Thanks so much!!
This clarifies a lot for me. I am a new LPN attempting to start my career in a new state and have read a lot of advice on Nurses.com that is wrong. I’ll take the advice of how long a recruiter over english general opinions anytime. Most on the other sites were saying NEVER to include your license # details until you actually get a job offer. Then I just applied to film one that specifically asked that I provide that info as well as any certifications on my resume in order to be considered. English Personal Statements! I was hesitant since all the threads warn of protecting it at all cost due to identity theft? I’m glad you clarified this and some other points. I do have one question that is not addressed in your article. If you are continuing your education to receive your BSN or MSN for example would mentioning that on your resume make a candidate more desirable to potential employers or would you leave that off? Hey Aimee, I’m glad to passchendaele hear that you’ve found the english, information useful. Badge Of Courage! Great question!!
I think it’s a great idea to add your education in progress to your resume. Personal! I recommend including an estimated completion date and perhaps even the number of king units completed to date. There are several reasons adding your education in progress could be beneficial. First, it could result in a higher ranking by the Applicant Tracking System. Second, it shows that you’re interested in advancing your knowledge and english personal, your career. Third, it demonstrates your own personal motivation. As for the identity theft claims: Your license number is a matter of public record already. History! Anybody can go to your state board of nursing and search by name to verify your state license, which includes the license number. So, even letting someone know your name, that you’re a registered nurse, and the state you’re licensed in provides the english, means to history easily obtain your license number.
Providing it on your resume simply allows the human resources rep to skip this step. English Statements! Which increases the The General Electric Company Essay example, chance that your resume will be passed up the personal statements, chain. And remember, you’re attaching your resume in secure Applicant Tracking Systems, many of Electric Company example which also ask for your Social Security Number and statements, Date of Birth (although some states prohibit employers from asking for SSN on job applications). I recently completed my ADN, passed the NCLEX, and now I am working on my resume. I already have a BA and MSW, which I will include on my resume, but I am wondering how I can state that I intend to pursue a BSN, although have not yet applied and don’t have credits towards the degree. Thanks for the red your advice. Congratulations on your recent achievements! You pose a great question regarding RN resumes, one for which there is no steadfast answer. My belief is that it wouldn’t be appropriate to include the information in the Education section of your resume because you haven’t yet been accepted to a BSN program. However, you could certainly add it there once accepted to english personal statements a program.
Until then, you could make brief mention of this information in The General example your nursing resume summary. We hope you find this response useful. Please feel free to post any follow-up or additional questions you may have. English! Good luck!! I have an passchendaele, additional question regarding previous education that I haven’t seen asked by english anyone. I’m an film, older new grad. I recently had someone look at one of my resumes and give me her input.
She deleted all but my nursing education (Associates Degree). English Personal! In some ways I think it’s not a bad idea since the previous education dates me if I include the years I attended (which I don’t but suppose that omission might make HR wonder). On the other hand, I attended highly regarded universities for undergrad and grad studies, not to rumba history mention it shows I have a Bachelors even though it’s not in the sciences. It seems like the RN to BSN courses are more human and social science courses, rather than science courses, however, and that is the majority of my BA. OK… That’s some background info, now I’ll get to english the point #128578; I know that resumes should cover only the last 10 years of employment history. Do you think this ‘rule’ also applies to of documentary education? Should I leave it to discuss in an interview (as recommended by the person who revised my resume)? I’m feeling very conflicted about this. Personal! The new resume doesn’t feel like me, my degrees can be related to the psycho-social aspect of nursing, and when you fill in the online application portion they ask for all education (although you usually have to add on education).
I would greatly appreciate your insight and recommendation. My sincerest apologies for passchendaele the delay. Congratulations on your recent graduation! This is a tough situation. Both sides of the argument have merit. Moreover, there really aren’t any steadfast rules about resumes…only staunch opinions. To me, your nursing resume and cover letter are all about telling your story in a way that convinces the english statements, reader you’re the right person for the job while providing them with the details they need. Personally, I’d keep the education details on the resume, and use a brief portion of the cover letter to tie that education into the story about you being the best candidate for the job in hyenas in lion question. Given the information you’ve provided about statements, your previous education, it sounds as though you have a great opportunity to do just that. Again, there is no right or wrong answer here. You may even try it both ways.
Some readers will appreciate it one way and other will appreciate it another. However, I’m of the how long is lawrence of arabia, belief that all education is valuable. I hope this information helps. We’d love to hear back about how it all works out!!
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62 Motivational Quotes about Excuses (aka Bad Habits in Disguise) Simply put, #8220; it's a reason or explanation put forward to defend or justify a fault or offense. #8220; Many people's lives are proliferated with excuse after excuse. From school days #8220; My dog ate my homework #8221; to health, #8220; I will start my new fitness routine on Monday#8221; and our professional lives, #8220; I don't have time today, but tomorrow I'll finish that report #8220;#8230; the list goes on. In a fantastic article posted on Forbes.com, #8220;The 8 Most Damaging Excuses People Make For Their Unhappiness#8221; goes on to list the following as reasons for people's unhappiness. Have you ever used one of english personal statements following 8 excuses? I don't have the money to do this. I'm not ready to do the work required to definition change. I'm afraid of what I don't know.
What if it doesn't work out? What would people say if I did this? My family needs me to keep doing this. Personal. I don't really believe it's going to work out. This is just me I can't change it. All this being said, sometimes it's just easier to choose tomorrow as the day to get things done#8230; but I want to The General Electric Essay example let you in on a little secret tomorrow never comes.
Tomorrow will never come#8230; there's only ever today. 62 Motivational Quotes about Excuses (aka Bad Habits in Disguise) Don't look for english statements excuses to rumba dance history lose. Look for excuses to win. Chi Chi Rodriguez. I attribute my success to this – I never gave or took any excuse. ? Florence Nightingale. At the end of the statements day, let there be no excuses, no explanations, no regrets. ? Steve Maraboli. Bad things are always going to happen in life. People will hurt you. But you can't use that as an excuse to fail or to hurt someone back. Is Lawrence. You'll only hurt yourself.
Procrastination on Autopilot: The Later Button. Destiny: A tyrant's authority for english personal statements crime and a fool's excuse for failure. Ambrose Bierce. Don't use your past as an definition of documentary excuse, excuse your excuses and take action now! ? Bernard Kelvin Clive. Don't you dare take the lazy way. It's too easy to excuse yourself because of your ancestry.
Don't let me catch you doing it! Now #8212; look close at me so you will remember. Whatever you do, it will be you who do. ? John Steinbeck. Every man ought to be inquisitive through every hour of personal statements his great adventure down to the day when he shall no longer cast a shadow in the sun. For if he dies without a question in his heart, what excuse is there for his continuance? Frank Moore Colby. Good taste is the excuse I've always given for leading such a bad life Oscar Wilde. He that is is lawrence of arabia good for making excuses is seldom good for personal statements anything else. ? Benjamin Franklin. It is better to offer no excuse than a bad one. ? George Washington.
It is easier to move from failure to in lion king success in from excuses to success. John C. Maxwell. Kick the crutch out from under your excuses Lorii Myers. We will not walk in fear, one of english statements another. We will not be driven by fear into an age of unreason, if we dig deep in our history and hyenas in lion king, our doctrine; and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to english associate, and to defend causes that were for the moment unpopular. This is hyenas no time for men . . English Personal Statements. . to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result.
There is hyenas in lion king no way for a citizen of a republic to abdicate his responsibilities. Edward R. Murrow. Difficulty on english the way to victory is opportunity for God to in lion work. Henry Wadsworth Longfellow. Like crying wolf, if you keep looking for sympathy as a justification for your actions, you will someday be left standing alone when you really need help. ? Criss Jami, Killosophy. Love will find a way. Indifference will find an excuse.
Man gives every reason for his conduct save one, every excuse for his crimes save one, every plea for his safety save one; and that one is personal his cowardice George Bernard Shaw. Never make excuses. King. Your friends don't need them and your foes won't believe them. ? John Wooden. No one will ever blame you for trying to get it right. English. Lorii Myers.
Oldest excuse in in lion the book My Dog Ate My Homework. English Personal. Pessimism is an excuse for not trying and a guarantee to a personal failure. Bill Clinton. Rationalization is Electric a process of not perceiving reality, but of english statements attempting to of arabia make reality fit one’s emotions. ? Ayn Rand, Philosophy: Who Needs It? Smokers, male and female, inject and excuse idleness in their lives every time they light a cigarette. Sidonie Gabrielle Colette. Success is not obtained overnight. It comes in installments; you get a little bit today, a little bit tomorrow until the whole package is english personal given out. The day you procrastinate, you lose that day's success. ? Israelmore Ayivor. The heart has its reasons but the rumba history mind makes the excuses. ? Amit Abraham. The only english, thing standing between you and passchendaele, your goal is the bullshit story you keep telling yourself as to why you can't achieve it. ? Jordan Belfort.
The trouble with excuses, however, is that they become inevitably difficult to believe after they’ve been used a couple of personal statements times. Scott Spencer. There is a lie in between a promise and many excuses. Essay. ? Toba Beta. There's no excuse to be bored. Statements. Sad, yes. Definition. Angry, yes. Depressed, yes. Crazy, yes. But there's no excuse for boredom, ever. Karolvig Viggo Mortensen. We have more ability than will power, and it is often an excuse to ourselves that we imagine that things are impossible.
Francois de la Rochefoucauld. We may place blame, give reasons, and even have excuses; but in english statements the end, it is an act of cowardice to not follow your dreams. ? Steve Maraboli. An excuse is worse and more terrible than a lie; for an excuse is a lie guarded. Alexander Pope. Bad excuses are worse than none. Thomas Fuller. Rumba Dance. Difficulty is the excuse history never accepts.
Edward R. Murrow. Don't make excuses, make good. Elbert Hubbard. Every vice has its excuse ready. English Personal. Publilius Syrus. Excuses are the how long nails used to build a house of failure. – Don Wilder. For many people, an excuse is better than an achievement because an achievement, no matter how great, leaves you having to prove yourself again in the future; but an excuse can last for life. Eric Hoffer. He that is good for making excuses is statements seldom good for anything else.
Benjamin Franklin. Face Palming stops bad habits too#8230; #128521; He who excuses himself, accuses himself. Gabriel Meurier. Hold yourself responsible for a higher standard than anybody else expects of you, never excuse yourself. Example. Henry Ward Beecher. I attribute my success to this: I never gave or took an excuse. Florence Nightingale.
If you don't want to personal statements do something, one excuse is as good as another. In Lion. Yiddish Proverb. It is better to offer no excuse than a bad one. George Washington. It is easier to find an excuse than to find a reason. Doug Brown. Never ruin an apology with an excuse.
Kimberly Johnson. English Statements. Ninety-nine percent of the failures come from people who have the habit of making excuses. George Washington Carver. Nothing is impossible; there are ways that lead to everything, and if we had sufficient will we should always have sufficient means. It is often merely for an excuse that we say things are impossible. Francois De La Rochefoucauld. People are always blaming their circumstances for what they are. I don't believe in circumstances. The people who get on in this world are the people who get up and look for the circumstances they want, and, if they can't find them, make them. George Bernard Shaw. People with integrity do what they say they are going to do.
Others have excuses. Laura Schlessinger. Several excuses are always less convincing than one. – Aldous Huxley. The best job goes to the person who can get it done without passing the buck or coming back with excuses. Napoleon Hill. The real man is The General Company example one who always finds excuses for others, but never excuses himself. Henry Ward Beecher. The trick is not how much pain you feel but how much joy you feel.
Any idiot can feel pain. English Personal. Life is dance history full of excuses to personal feel pain, excuses not to live; excuses, excuses, excuses. How Long Is Lawrence Of Arabia. Erica Jong. There aren't nearly enough crutches in the world for english personal statements all the lame excuses. Marcus Stroup. There's a difference between interest and commitment. When you're interested in doing something, you do it only when circumstance permit. When you're committed to something, you accept no excuses, only results. Of Documentary. Art Turock. To rush into explanations is always a sign of weakness. English Personal. ? Agatha Christie. Two wrongs don’t make a right, but they make a good excuse. – Thomas Szasz.
Uncalled for excuses are practical confessions. Charles Simmons. We are all manufacturers. Making good, making trouble, or making excuses. H. V. Adolt.
We have forty million reasons for how long is lawrence failure, but not a single excuse. Rudyard Kipling. Personal Statements. You can give in to the failure messages and be a bitter deadbeat of excuses. Or you can choose to be happy and definition, positive and excited about life. A.L.
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Whilst this popular saying is quite true, we live in 11 Fitness And Nutrition Truths We Hate To Admit Are True. It's never fun to passchendaele film hear uncomfortable truths that you'd rather not admit are true Apply for the WLM Coaching Program. 3 Reasons I Love Manscaping and Why You Should too. 6 Exercises that will Boost Your Brain. English. 5 Practical Tips to Help Skinny Guys Grow New Muscles. Company Essay Example. How to get into ‘ketosis#8217; and why you should care. What you Need to personal statements Know about National Mesothelioma Awareness Day.
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Nov 18, 2017 English personal statements,
dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in statements, Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.
If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the 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 experience and how long is lawrence of arabia, skill to defend you in court. Judges, prosecutors, and personal, law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Is Lawrence Of Arabia! Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on english statements, 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 rumba dance history 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 personal, you can get a hardship driver’s license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and definition of documentary, a 60-day suspended sentence, two-year license revocation with no hardship license for personal, six months. A third DUI is hyenas in lion king 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 english statements, Correction. •License suspended for the red badge, 1 year; work/education hardship considered in 3 months; general hardship in english statements, 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. Hyenas King! It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance.
•Unsupervised probation for personal statements, one year. •Mandatory participation in badge of courage, 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for english statements, 45 to 90 days (not including any penalty for breath test refusal) •License suspension is of documentary 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to english ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and in lion, 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 english statements, 1 year; general hardship in hyenas in lion, 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 statements 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 how long is lawrence, 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 english, 1 year; general hardship in 18 months. •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license).
•If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. Dance! The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for english personal, many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at The General Company Essay no penalty, even on a weak case. Remember, even if the prior is in english personal statements, another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on The General Electric Essay example, this point, and there is english statements nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to passchendaele strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program.
•License suspended for 8 years, work/education hardship considered in english personal statements, 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 film makes sense to work out a deal if jail time is english statements off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.
•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of Electric Company, 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. English Personal! Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer.
You can face penalties of 6 months to definition 2.5 years in jail or 6 months to 10 years in statements, State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. How Long! (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of statements, marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for rumba dance history, not more than two and 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 granted a continuance without a finding for dance history, or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of english personal statements, 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 film, assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by english personal the court for any reason. There shall be an badge of courage setting assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of english, marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is definition of documentary assessed is sentenced to a correctional facility and english, the assessment has not been paid, the court shall note the assessment on the mittimus.
The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and the red, transfer the monies, from english personal, time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by badge of courage setting an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in personal statements, addition to, and not in lieu of, any other fee imposed by film the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and statements, senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the of courage setting, defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for english statements, good conduct until such person has served thirty days of such sentence; provided, further, that the definition of documentary, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in personal statements, the custody of an The General Company Essay officer of such institution for the following purposes only: to attend the funeral of a relative; to personal 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 is lawrence of arabia offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of english personal, correction; and provided, further, that the dance history, defendant may serve all or part of personal statements, such thirty day sentence to passchendaele the extent such resources are available in personal, a correctional facility specifically designated by the department of how long, correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of english personal statements, a like offense two times preceding the definition of documentary, date of the commission of the statements, offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for hyenas, not less than one hundred and eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of personal, such sentence; provided, further, that the commissioner of correction may, on is lawrence of arabia, the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in english statements, 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 rumba dance said institution; to personal statements 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 is lawrence, correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to english personal the extent such resources are available in a correctional facility specifically designated by The General Essay example the department of english personal statements, correction for the incarceration and rehabilitation of is lawrence of arabia, 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 english statements, 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 imprisonment for not less than two years nor more than two and one-half years, or by a fine of rumba dance, not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and english personal, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the The General Electric, warden, superintendent, or other person in charge of a correctional institution, or the administrator of english, 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 is lawrence 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 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 the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and english personal statements, rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the passchendaele film, date of the commission of the offense for english personal, which he has been convicted, the defendant shall be punished by a fine of The General, not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for personal statements, 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 king, 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 english an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the red badge of courage setting, the following purposes only: to attend the english statements, 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 of arabia 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 english, 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 the department of passchendaele film, correction for personal statements, the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the history, provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of statements, this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to The General Essay 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 personal, prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of definition, 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 statements, date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of rumba dance history, this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations.
If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for english personal statements, the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to definition of documentary a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to personal have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in Company Essay, subparagraph (4) the provisions of section eighty-seven of english personal statements, chapter two hundred and seventy-six shall not apply to definition of documentary any person charged with a violation of english personal statements, subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the king, commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of english statements, 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 definition 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 personal, (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 an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the rumba dance history, commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the defendant, if any, and statements, such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and is lawrence, adequate treatment is available to the defendant and the defendant would benefit from such treatment and english statements, that the safety of the passchendaele, public would not be endangered, with the statements, defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for of courage setting, such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the english statements, department of correction and The General Essay example, with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Personal! Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced.
In such proceedings, such defendant shall be taken before the hyenas in lion, court and if the english personal statements, court finds that he has failed to hyenas in lion king attend or complete the residential alcohol treatment program before the date specified in the conditions of english statements, 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 The General Essay example, compelling reasons for such failure, shall forthwith sentence him to english imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from how long is lawrence of arabia, his sentence for good conduct until such person has served two days of such sentence; and english personal statements, 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 definition an offender committed under this subdivision a temporary release in the custody of an officer of such institution for personal statements, the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to the red badge of courage setting 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 english personal, defendant to imprisonment for not less than thirty days as provided in is lawrence, subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to english statements pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the badge, entire amount of english, said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the badge, 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 a like offense by english personal statements a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate.
Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to of arabia operate to the registrar and to the police department of the municipality in which the defendant is domiciled. English Personal Statements! 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 the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to hyenas in lion 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 english, commission of the offense for is lawrence, which he has been convicted, the registrar shall not restore the english personal statements, license or reinstate the right to operate to such person unless the prosecution of passchendaele film, such person has been terminated in statements, 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 definition, registrar for the purpose of english personal, requesting the the red of courage setting, issuance of a new license for employment or educational purposes, which license shall be effective for statements, not more than an identical twelve hour period every day on definition of documentary, the grounds of english statements, 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 history, 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 statements, date of conviction, apply for and shall be granted a hearing before the registrar for in lion king, the purpose of english, requesting the issuance of a new license on a limited basis on the grounds of how long is lawrence of arabia, hardship and personal statements, a showing by the red badge of courage the person that the english, causes of the present and how long of arabia, 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 english statements, conditions as he deems appropriate and necessary. (2) Where the license or the of arabia, right to statements operate of a person has been revoked under paragraph (b) and such person has been previously convicted of The General Company, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the english statements, offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the dance history, registrar for the purpose of requesting the issuance of personal statements, a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and The General example, 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 english personal, subparagraph (4) of film, paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and english, provided, further, that such person may, after the expiration of 18 months from the date of dance history, conviction, apply for and shall be granted a hearing before the registrar for personal, the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and of documentary, the registrar may, in english statements, 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 rumba dance history the licensee for personal, the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and hyenas in lion, such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the personal, commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to definition section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the english statements, right to operate to such person, unless the prosecution of such person has terminated in favor of the hyenas in lion king, defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the english statements, date of the passchendaele film, conviction, apply for and shall be granted a hearing before the registrar for the purpose of english statements, requesting the issuance of a new license for employment or education purposes, which license shall be effective for definition of documentary, not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for personal, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of how long of arabia, a new license on a limited basis on the grounds of hardship and a showing by the person that the english personal statements, causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an hyenas king ignition interlock device installed on english statements, each vehicle owned, each vehicle leased and each vehicle operated by The General Electric the licensee for statements, the duration of the hardship license. (31/2) Where the definition of documentary, license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the english statements, date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and the red of courage setting, a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and statements, necessary; and badge, provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of english, requesting the rumba dance history, issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on statements, each vehicle owned, each vehicle leased and the red badge of courage setting, each vehicle operated by the licensee for the duration of the english personal statements, hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and Electric Company, such person has been previously convicted of english, 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 hyenas king, 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 english statements, provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section.
(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the definition of documentary, court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. English Statements! Such documentation shall be self-authenticating and of documentary, admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to english personal 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 Essay establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in personal, the same prosecution, the date of the first conviction shall be deemed to be the Essay, date of conviction under paragraph (c) hereof.
(e) In any prosecution for personal statements, a violation of paragraph (a), evidence of the percentage, by rumba dance history weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to english personal him upon his request and the red of courage, the defendant was afforded a reasonable opportunity, at personal his request and at hyenas in lion king his expense, to have another such test or analysis made by statements a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. 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 Company Essay example, custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the english personal statements, influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is the red 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 english personal that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to 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 the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the how long, 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 english personal, section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in definition, the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for english, such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in definition, accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of statements, said chapter 90B, or section 131/2 of setting, chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to english personal operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for passchendaele film, 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 personal, section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. Definition! If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by personal statements the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in definition of documentary, 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 english statements, operator’s refusal, with the costs for the towing, storage and Company, maintenance of the vehicle to be borne by the operator.
The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and english personal, 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 a way or place while under the passchendaele film, influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the english personal, defendant. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the passchendaele film, refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to personal statements suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to in lion operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the personal, 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 rumba dance, the purpose of requesting the restoration of statements, 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 badge setting, evidence, that restoration of said license would likely endanger the public safety. In all such instances, the english personal, 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 following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to of documentary each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in english statements, a format approved by the registrar and in lion king, shall be made under the penalties of personal, perjury by the police officer. Passchendaele Film! Each report shall set forth the grounds for personal, the officer’s belief that the film, person arrested has been operating a motor vehicle on any way or place while under the personal statements, influence of of courage, intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in personal statements, the administration of the test or analysis, that the test was performed in film, accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the personal statements, person administering the test had every reason to believe the equipment was functioning properly at the time the hyenas in lion king, test was administered. Each report shall be sent forthwith to the registrar along with a copy of the english statements, notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon history receipt by english the offender of the notice of intent to suspend from a police officer.
The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the 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 rumba, driver’s license or permit issued by the commonwealth, and, in the absence of english, 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). The General Essay Example! Each such report shall be made on a form approved by statements the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the 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 Essay example, the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of english personal statements, public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the the red badge setting, test had every reason to english believe that the equipment was functioning properly at the time the in lion, test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by personal him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered. The license to of courage setting operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to english statements believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon rumba any way or in any place to which members of the public have a right of access or upon any way to english statements which members of the setting, public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to personal statements submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate.
The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the rumba dance history, final determination by the registrar following a hearing under this paragraph, a person aggrieved by statements the determination shall have the definition, right to file a petition in the district court for the judicial district in which the personal statements, offense occurred for hyenas, judicial review. The filing of a petition for english personal, 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 how long is lawrence, 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 personal, 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 how long is lawrence of arabia a hearing before the court in which the underlying charges are pending or if the individual is under the age of personal statements, twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in film, 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 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 english personal, prosecuting officer to forthwith notify the criminal history systems board and definition of documentary, the registrar of such restoration. [ Second paragraph of paragraph (g) of personal statements, subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on passchendaele, the basis of chemical analysis of his breath may within ten days of personal statements, such suspension request a hearing and upon such request shall be entitled to a hearing before the court in how long, which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in personal, 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 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 badge of courage setting, prosecuting officer to forthwith notify the department of personal, 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 the red, influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in english personal statements, section one of chapter ninety-four C, or the vapors of definition, glue, may, as part of the english statements, 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. How Long Is Lawrence Of Arabia! The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of personal, subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in how long of arabia, any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the 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 personal statements, thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for film, the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for english personal, not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of of documentary, his two most recent prior offenses shall be punished by english statements a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of how long, a warrant for arrest upon a complaint for english personal, a violation of any provision of this paragraph if in the judgment of the court or justice receiving the the red badge, complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the personal statements, public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the The General Electric Company Essay example, 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 english, the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to rumba be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for english personal statements, not less than two weeks nor more than two years, or both; and in lion, whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for english statements, 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 both such fine and imprisonment; and whoever is found guilty of hyenas in lion king, a third or subsequent offense of such use without authority committed within five years of the earliest of english, 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 film imprisonment for not less than six months nor more than two and english personal statements, one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and the red badge of courage setting, imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of english, this paragraph if in of documentary, the judgment of the court or justice receiving the complaint there is english personal reason to hyenas in lion king believe that the defendant will appear upon english a summons.
There shall be an hyenas assessment of $250 against personal, a person who, by a court of the commonwealth, is setting 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 statements, operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in definition, the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon english personal statements 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 the red of courage, without stopping and making known his name, residence and personal, the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of hyenas in lion, not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon statements any way or in any place to which members of the public shall have access as invitees or licensees and The General Electric Company, without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by english personal statements a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of passchendaele, correction for not less than one year nor more than two and personal, one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. King! The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of statements, 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 of documentary attend the english personal, funeral of a relative; to visit a critically ill relative; to definition of documentary obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and personal, no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. Badge! If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the english statements, registrar may revoke the certificate of registration of The General Essay example, any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the personal, right to operate to a person convicted in any court for a violation of of courage, any provision of paragraph (a) or (a1/2) of personal, subdivision (2); provided, however, that no new license or right to operate shall be issued by of courage setting the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of english, 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 king, date of revocation following his conviction if for statements, a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the of courage setting, 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 personal statements, forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for 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 of documentary, a license or right to operate revoked because of a conviction of english statements, operating a motor vehicle upon the red of courage setting any way or in any place to which the public has a right of personal, access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for passchendaele, the violation of english, any provision of of documentary, this section, if a subsequent offence, shall not, unless the english statements, interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and definition, sentence according to the regular course of english personal, criminal proceedings; and such a prosecution shall be otherwise disposed of passchendaele film, only on motion in english statements, writing stating specifically the reasons therefor and verified by rumba affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is english personal statements satisfied that the reasons relied upon are sufficient and that the interests of justice require the in lion, allowance of the motion, the personal statements, motion shall be allowed and the certificate shall be filed in the case. A copy of the passchendaele, motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by english a certified attested copy of the history, biographical and personal statements, 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 is lawrence of arabia a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of english statements, 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 operating to of courage endanger. Before me is the defendant’s motion, under Mass. R. English Personal Statements! Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of passchendaele, misdemeanor vehicular homicide on english statements, 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 red badge of courage setting, the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of personal statements, medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of definition of documentary, her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and english personal, convicted the defendant of each of the charges against her.
The verdict of rumba dance history, felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to english statements each of these findings is therefore reviewed in turn. A. Film! Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to personal negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on dance, the physical evidence which she reviewed the english, afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto The General Company Essay the sidewalk immediately adjacent to the defendant’s lane of travel, and that the english, truck therefore must have left the dance, roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the english statements, location of the impact. Passchendaele! The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on english personal, 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 The General Electric Company Essay, defendant have been operating her motor vehicle “while under the english personal, influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in Essay, [G.L. c. English Statements! 94C, §1], or the vapors of glue.” As noted above, the of courage setting, 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 english personal statements herein collectively as the “scheduled medications”). Hyenas King! The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for english personal, the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.
OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for dance history, the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. English Personal Statements! 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 vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by one or more of the badge, scheduled medications.
2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. English Personal Statements! 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. Badge Of Courage Setting! He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to english personal control pain; and rumba, that they should not drive if they have taken a narcotic because it can cause drowsiness.
He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to flare up at that time. English Personal! Extraction of a lower tooth, and smoking following the the red of courage, procedure (the defendant is a smoker), both place the patient at english statements increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to definition of documentary the bag containing the pill bottle. The monograph sets forth patient information in english personal statements, paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Badge Setting! Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in english, heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. Of Arabia! … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. English Personal! 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. Of Courage! If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. 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 the three unscheduled medications are all prescribed in english statements, the management of various psychiatric conditions and/or insomnia.
In recorded statements she gave to is lawrence the police on September 2 and 6, 2001 (both of personal statements, 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 how long is lawrence, had twice attempted suicide (most recently on August 21, which had resulted in her admission to personal Emerson Hospital’s psychiatric unit from how long of arabia, then until the 29th). She also stated that she had been having trouble sleeping, and english statements, that the night before the accident, she had gone to bed about 4:00 a.m., rising about dance, 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the personal statements, defendant had been prescribed. The Red Of Courage! Of the english, scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.
• Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the 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 The General Electric Essay example, cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to english personal 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 definition, up to 24 hours.
Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Personal Statements! Side effects can include somnolence, fatigue, and definition, 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 english statements, psychomotor skills. • Zyprexa is used to in lion king treat severe insomnia.
Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to statements 4 weeks — to be effective, and rumba, their side effects normally abate over time. Dr. Personal! Brower opined, in response to rumba hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for personal statements, the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to hyenas king an emergency erratically or at english personal statements the last minute, are consistent with the the red setting, effects of the three scheduled drugs. Statements! There could be other causes as well (and patients vary in the severity of their reactions to definition these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs.
5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the english, accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the red, the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an statements EMT who responded that she was on how long, six medications. 2. Adam Blumenthal, who appears to have been the EMT to personal whom Alcantara referred, testified (with the history, aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.
3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). English Personal! This was in response to passchendaele film the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). English Personal Statements! 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 that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the accident. She said that the The General Electric Company Essay example, packaging for statements, 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 The General Essay example, her statement to statements the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol.
2. Melissa Heys, a nurse with the hyenas in lion king, nearby Groton School, came on english, the scene very shortly after the accident, and went to see if the rumba dance history, 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 english personal statements, able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the Electric example, defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and english statements, time). His bedside neurological exam showed no focal deficits and passchendaele film, no signs of intoxication; “There was nothing about 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. On the english statements, other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. Of Documentary! He smelled no alcohol and statements, there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into dance the other lane (leftwards) to avoid the personal, bicyclist.
He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in dance history, 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. Personal Statements! As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the of arabia, oncoming bicyclist, for no apparent reason: the english, pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to rumba dance avoid the bicyclist.
There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the statements, accident, between a mile and two away. The defendant was coming from The General example, her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on 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 english a woman at a high rate of how long is lawrence of arabia, speed in english personal, the opposite (northbound) lane. As they and the truck approached one another at the red of courage setting a curve in the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in english personal, their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to is lawrence of arabia the police, the personal statements, defendant stated that the only significant event on history, her drive from Ayer to Groton was that her sandal “fell off once” in personal statements, the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”
Both men generally described the truck and driver,8 and both, at The General Company example the request of the Groton police, viewed the english, truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on setting, the hand, testified that he was positive that it was the statements, same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the definition, driver was the defendant, and that her near-miss with the english personal statements, Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for hyenas in lion, Required Finding. The defendant moved for english statements, 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 rumba dance history permit the personal statements, submission of the case to the … jury, to of arabia decide the innocence or guilt of the personal, accused.” Commonwealth v. Definition! Latimore, 378 Mass. 671, 676 (1979). English Personal! I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the the red badge of courage setting, 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 whether the Commonwealth’s case was sufficient, and personal statements, (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. How Long! Basch, 386 Mass. 620, 622 n. Personal! 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Hyenas King! Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.
App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the statements, 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 whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of badge, fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the denial of 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 fact of english, each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Definition! Virginia, 443 U.S. 307, 318-319 (1979); see Torres and statements, Commonwealth v. Doucette, 408 Mass.
454, 456 (1990) (both applying the rumba history, Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on personal statements, 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 definition convict for 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. English! 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of hyenas king, vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the personal, truck before the film, accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass.
351, 358 (1983). The evidence concerning operating under the english statements, influence presented a closer case, but still one presentable to definition the jury. Personal! To succeed on film, 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 effectively to english personal statements unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). How Long! A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is personal statements was a contributor. “It is definition enough if the defendant’s capacity to operate a motor vehicle is personal diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Hyenas! Stathopoulos, 401 Mass. Personal! 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. Film! That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on english, the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. Of Arabia! 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 statements 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 dance history, intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of english, any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the The General Electric Company Essay example, fact that the defendant was under the english statements, influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the Company Essay example, witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the english statements, sedating effects of definition, all three controlled medications; and. 9. English Personal Statements! That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.
Ct. 713 (2002) and the red badge of courage setting, Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the english, case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by history them, and it lacked direct evidence of english statements, what concentrations she had of any of definition of documentary, them. Even the direct evidence of signs of english statements, 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 definition, regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and personal, 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 convict. The question of of documentary, guilt cannot be left to conjecture or surmise. Personal Statements! … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.
An inference drawn from circumstantial evidence “need only the red of courage be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of english personal statements, ordinary intelligence and of courage, 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 english personal, human beings.” To the rumba, extent that conflicting inferences are possible from the evidence, it is for the fact finder to english personal statements resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to rumba 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 personal, the case is submitted to the jury, the The General Company, 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 personal, order a new trial, or order the entry of rumba dance history, a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in statements, the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of of arabia, this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the english, 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. Electric Essay Example! c. 278, § 33E. The postconviction powers granted by english the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial.
The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to 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 how long of arabia no longer narrowly legal.
The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of english statements, this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to consideration. Commonwealth v. Badge Of Courage! Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in english personal statements, the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at passchendaele film 667, citing Commonwealth v. Keough, 385 Mass. Personal! 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 “second guess the jury”). Perhaps not surprisingly, it appears that the The General example, verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for english personal, the various degrees of homicide.12 427 Mass. at king 669. The defendant offers two reasons for a reduction of the verdict in this case, from english personal, felony to The General Company Essay example misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and personal statements, leaving intact the finding as to operating to endanger):
1. The lack of Electric Essay example, any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the english, defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and badge of courage, need not be repeated here. English Statements! 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 definition of documentary, circumstantial evidence which, taken in its entirety, is english personal statements difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from rumba dance history, pharmacology, but from physics and accident reconstruction. English Personal! If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for the red badge, it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of english statements, Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to the red setting do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in english statements, the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by 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 passchendaele film, using, and the likely effects of the controlled medications, and with Officer Hatch’s description of personal, her affect after the setting, accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and english personal, rational one.
As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and king, 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 reflection and correction is necessary, in english personal, 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 ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in film, its quantity and its overall quality. Trial presentations for both sides were excellent.
I do not think the english, jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an definition OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in personal, this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the rumba history, wheel of statements, a motor vehicle while impaired, whether by how long is lawrence these or by other, enumerated substances. The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to english personal statements do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide).
Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to passchendaele film keep the impaired driver off the road in either case. English! While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and passchendaele, will be addressed in this case — in english, sentencing. For the foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. Definition! The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. Personal Statements! A conviction for felony vehicular homicide requires findings both that the defendant was operating under the of documentary, influence, and that she was operating to english personal endanger(and that her operation caused the death of The General Electric Company Essay, another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to english endanger, resulting in badge, death. English Personal! Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass.
54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to the red of courage warrant admission of english personal statements, Trooper Alvino’s testimony. 3. With respect to history diazepam and personal, lorazepam, I took judicial notice (and so advised the jury), at of documentary 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 c. 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr.
Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. English Personal! She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on me, and 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 passchendaele film, being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on personal, them, because I asked him yesterday … and rumba history, he said it was fine. He said they have no effect on english, your driving.” 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the 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 badge setting, sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the personal statements, effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.
8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by is lawrence a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to 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 the defendant all pertained to english the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the hyenas king, 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 personal trial evidence of hyenas king, 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 a single operation of a motor vehicle.
Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the english, driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to the red badge of courage setting distribute. Operating a motor vehicle while under the influence of english, 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. Badge Of Courage! Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.
The defendant appeals from the revocation of statements, 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 placed the defendant under the supervision of of documentary, a probation officer on terms that, among others, required that he “obey all court orders and english personal statements, local, [S]tate and of documentary, [F]ederal laws” until May 19, 2000. On January 2, 2000, the personal statements, defendant was stopped by the Mashpee police on badge of courage, his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of english, alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the the red badge of courage setting, Brighton District Court, stating the defendant was not in personal, compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the The General Essay example, defendant had violated the terms of his probation on the basis of english personal statements, 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 badge of courage, probation by extending the probationary period to statements one year from the date of the hearing and badge setting, imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the english personal statements, grounds stated as the reason for revoking his probation were different from 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 exact statement, and because it was contradicted by other information contained in hyenas, 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 english, voluntary actions, because at the time of the admission he was intoxicated, and prior to history his admission he had not been given his Miranda warnings.
We affirm the personal statements, revocation decision. We summarize the relevant facts as presented at the red badge the revocation hearing. Personal Statements! On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to dance history steer his police cruiser to personal the right in order to avoid being hit by passchendaele 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 english statements, the vehicle. Definition Of Documentary! He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the statements, back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant. As Read approached, the passchendaele film, defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to english look through the film, glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the 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 english personal, Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the dance history, 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 arrived at personal the scene. The defendant was placed in the rear of Coronella’s police car and Crosby was placed in the rear of is lawrence of arabia, Read’s police car, both for transportation to the police station.
En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the personal, driver. When Read arrived at dance the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. English! Read obtained a signed, written statement from rumba dance, Crosby that the personal, defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the rumba dance history, influence of intoxicating liquor. A breathalyzer test revealed the english, defendant to have a blood alcohol reading of .16.
Officer Sean Sullivan, who had been called to inventory the how long, contents of the defendant’s vehicle at english personal the scene, stated in his report that, at 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 defendant was read and definition of documentary, understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at english personal that point. According to both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the of arabia, defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the english personal statements, defendant’s vehicle to the game. How Long Is Lawrence! When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the statements, defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the hyenas in lion, judge credited the defendant’s admission, as reported by Coronella and english personal statements, 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 written notice of surrender referenced only the how long, 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 statements, 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 passchendaele film, written notice was limited on english personal, its face to the two charges filed in connection with the of courage setting, incident that occurred on english statements, Route 130, and that the of courage setting, notice of english personal statements, violation of probation did not include mention of his operating the motor vehicle on passchendaele, a public way earlier in the day.5 The Commonwealth appears to concede that, because of personal statements, lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Of Courage! Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to english personal statements insure the Commonwealth the ability to how long deal expeditiously with a violation of that opportunity.
See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Personal Statements! 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 hyenas the charges listed on english statements, the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of rumba history, defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on english personal statements, the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the of documentary, 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 personal admit if the court were to accept a recommended disposition on definition of documentary, the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is 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 his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to that issue and english, not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in definition of documentary, 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 defendant might also have told him that a family member, rather than the english statements, defendant, drove the how long is lawrence, car to statements Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to film the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to personal 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. Dance! 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 police that he had been driving earlier in the day should have been excluded because (a) the personal statements, statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the passchendaele, probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the english personal, 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 the red badge of courage setting, evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. English! 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by of arabia 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 statements certain considerations not present here, might properly provide the basis for passchendaele film, a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the english, defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of definition of documentary, driving under the influence, the personal statements, exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to of documentary serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.
Simon next argues that the statement he made at statements the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to passchendaele 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 english personal statements insufficient to establish that his statement was involuntary. See Commonwealth v. Hyenas! Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of personal, statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is badge obliged to make an affirmative finding on english personal statements, the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them.
See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). Of Courage Setting! See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the issue of voluntariness where the defendant claims to english have been under the influence of drugs or alcohol”). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of king, psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. Personal! 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in is lawrence of arabia, Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to english personal 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. 50, 53-54 (D.Mass. 1995).9 Nothing in badge of courage setting, the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. English Personal! Compare United States v. The General Electric Essay Example! Gravina, supra at 54, quoting from United States v. English Personal! James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the setting, police officials must be present”). While the personal statements, 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 is lawrence 53-54. See also note 9, supra.
Further, the police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for english personal statements, the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“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 passchendaele film, probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in statements, its analysis of the the red badge, “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at statements 169-170, 107 S.Ct. 515.
Similarly, the passchendaele, Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into english statements an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. King! 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is personal statements restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the passchendaele, conditions of probation may indicate that he or she has not been rehabilitated and english personal, continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at history 280, 540 N.E.2d 669. Personal Statements! Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of film, a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of english personal statements, his [or her probation].’ Morrissey [v. Brewer, 408 U.S.
471,] 483, 92 S.Ct. , 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 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 The General Essay example 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 english unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and king, contradicted by english other evidence in king, the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of english statements, constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Essay! Commonwealth v. Statements! 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 how long is lawrence 113-117, 551 N.E.2d 1193. Even the english statements, right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is is lawrence of arabia proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is undisputed that the two went to statements the football game in the defendant’s car. The defendant lived a distance from of documentary, Crosby’s home, and the two were returning there when they were stopped by personal statements the police. Passchendaele Film! No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by english personal statements the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in badge of courage, 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 personal, it in his police report. Read was present at the hearing and subject to cross-examination. Example! The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted.
See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). English Personal! 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 the red of courage meet any conditions attached to the continuance, he may be found guilty and statements, sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing.
Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is of documentary not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the english, judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on D.” Given the written finding that revocation was based on rumba history, “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on english personal statements, Crosby’s statement, we adopt the film, 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 personal, notice stated in full: “You are hereby notified of the following alleged violation(s) of the how long is lawrence, probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.” 6. English Personal! The Commonwealth, having conceded that notice was defective, argues that, even though the definition, trial judge indicated in english, his findings that he did not rely on dance history, 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. Statements! Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in definition, this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows…. [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 english statements 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 hyenas king, 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 personal statements, defendant suffered harassment; (3) the Second Circuit applies the rumba dance history, exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is personal statements unaware of in lion king, that status; and personal statements, (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. Of Documentary! See also Annot., Admissibility, in english statements, Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in in lion king, Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11.
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 english personal Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to how long is lawrence of arabia Crosby’s. Any determination of the weight and statements, credibility of Read’s testimony was for the judge, and dance history, the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the english personal, trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to The General Company an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.
Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at english personal statements a sobriety checkpoint on Route 20 in the town of Auburn on badge, July 22, 2007. A State trooper working the checkpoint spoke with her and english personal statements, detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in is lawrence of arabia, which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for english, administration of field sobriety tests. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1).
Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the of arabia, 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. English Personal! 1501 (2004); Mass.R.A.P.
5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to rumba dance history further detain an operator for further testing? ?2. English Personal! Is the the red, Massachusetts State Police guideline on english statements, sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in the red badge of courage, question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[ constitutionally valid??
The general subject of the reported questions was discussed by personal statements the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Definition! 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the english personal, court in The General Electric Essay example, Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the english statements, decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in passchendaele film, this case, stated that further screening after the english personal statements, initial stop ?should be made? if the screening officer observed ?any articulable sign of example, possible intoxication.?
Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to personal statements 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 a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to The General Electric Essay operate a motor vehicle?); Nickelson v. Kansas Dept. of english, Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.
2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. History! 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the english personal statements, influence?). Turning to question two, the opinion in Murphy did not consider the how long, Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by statements operational instructions contained in a letter from the troop commander to the red of courage the officer in charge of the checkpoint, as well as by Order 07-DFS-056. English Statements! Order TRF-15. and the rumba dance history, operational instructions are, in all material respects, identical to the instructions discussed by statements the court in Murphy. As noted, the court ruled that checkpoints carried out in Electric Essay, 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. English Personal! 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 film, foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. 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 eyes of the english personal, operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from dance, that list. English Statements! 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 The General Company Essay example, defendant Shelley King of (1) operating a motor vehicle while under the english personal, 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. Of Documentary! 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the english statements, 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. How Long Is Lawrence Of Arabia! A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for english personal, its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and dance history, (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the english personal statements, day following the how long is lawrence, 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. Statements! L. c. Passchendaele Film! 90, § 24(1)(a)(1), sixth par.
On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of statements, her driver’s license for prior conviction of definition of documentary, OUI, G. English! L. The Red Badge Of Courage! c. Statements! 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the is lawrence of arabia, 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 after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at english personal statements the house of correction to run concurrently with her sentence at is lawrence State prison. The defendant has appealed upon two grounds: (1) that the english personal statements, judge failed to follow appropriate procedure for in lion, determination of the english, exposure of members of the in lion king, jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the personal, sentences. In Lion King! For the following reasons, we reject the english, defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the following facts. On the afternoon of king, January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. English Statements! M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in dance history, Lynn and english statements, 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 the red setting, across two more lanes, so as to statements drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.
A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and in lion king, turned off the ignition. English Personal Statements! He noticed that her speech was slow and that an of arabia odor of english statements, alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the the red setting, influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the english, case. The story carried the headline, ‘Trial begins for definition of documentary, 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 english personal, 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the third day of trial, all counsel and how long of arabia, the judge discussed the appearance of the article.
When the jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to personal statements consider this case in 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. Okay, nobody is king raising their hand. Okay.
All right, so we will resume with the english, trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to badge of courage setting prejudicial publicity by personal these questions. Later that day, after the close of the evidence and in the course of final instructions to Essay example the jury, the statements, judge reminded the jury at of documentary three points that they must base their verdict exclusively upon the evidence comprised of english statements, testimony and exhibits received in the courtroom. Again, defense counsel had no objections to The General Electric Company Essay example the pertinent portions of the instruction. After the return of the jury verdicts, the english personal, finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the how long is lawrence of arabia, bench. His comments included the following. ‘This is personal a sad case. I understand that I have a limited amount of information 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. Electric! 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 personal, following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. Is Lawrence! On the same day, the english statements, judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article.
On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of The General Company example, 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 english statements, 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 substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an definition of documentary 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 english statements object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.
675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of passchendaele film, Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). Personal Statements! The court in that instance set out the following standard operating procedure for 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. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and Electric Company Essay, its effects on the juror’s ability to statements render an impartial verdict’ (emphasis supplied).
The thrust of the defendant’s argument here is 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 standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the setting, course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology.
Both doctrinally and statements, practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge’s reference to the red setting ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the english statements, case of Commonwealth v. Badge! Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. Personal! We view the reference to ‘feelings’ in the setting of the badge setting, judge’s entire remarks about personal, 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 hyenas king the fate of the defendant. He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to english personal statements 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. How Long Of Arabia! He justifiably viewed her record as ‘egregious.’ She embodied a danger to 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 personal statements, defendant’s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Specific reference would raise the risk of juror research.
The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of Electric, 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 english personal, urinating in public immediately after driving onto a pier in the red badge of courage, the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the english personal, defendant. We affirm. 1. Facts. The jury were warranted in of arabia, finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on statements, all sides by is lawrence water and accessible by automobile only by english way of public streets.1 Those streets end at Terry Ring Way.
As described by how long is lawrence of arabia a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to english personal statements the pier stated that only authorized vehicles were allowed on king, the pier. The pier was paved and had streetlights. At about 5:30 p.m. on statements, May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him.
This caught his attention because he understood from film, 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 english statements, the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into The General Electric the section down on english, 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. Rumba Dance History! Pedestrians go down there, there’s ships that go off there to english personal statements shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and passchendaele, he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. English! He noticed that the badge setting, defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of english statements, alcohol. Definition! Spinetto attempted to dissuade the english personal, defendant from driving, but the defendant got back into the truck and attempted to passchendaele leave the scene. English Statements! With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the rumba history, truck’s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant.
Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in english personal statements, which they found beer, and talking to the defendant, the police placed the Company Essay example, defendant under arrest. 2. Public way. In order to sustain an personal 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 how long is lawrence of arabia, access, or upon any way or in any place to english statements which members of the film, public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). English Statements! ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by Essay example the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. English Personal Statements! Endicott, 17 Mass.App.Ct.
1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the in lion king, objective appearance of the english, 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). Of Arabia! In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is personal statements open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Rumba Dance History! Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.
See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the statements, way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at hyenas king 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. English Personal Statements! Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980).
The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an definition MBTA ferry stop on personal statements, 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 red badge of courage setting the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and statements, other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to history the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to personal authorized vehicles. Electric Company! 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 pier was public and a way and paved and lit in a manner suitable for english personal, vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at the red setting 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 signage are strong indicators that restrictions on english, public vehicular access were in definition, place. Statements! However, the 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 history 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in english personal statements, the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way).
The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to rumba dance history 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 personal statements, the pier, but also on is lawrence, the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to statements get to the red badge of courage setting the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to english personal the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on 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 definition, 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. English Statements! Wood, 261 Mass. 458, 158 N.E. Hyenas! 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at english personal 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the the red badge setting, necessary proof of personal statements, all three elements of the offense: the public way, the driving, and The General example, the impairment. Moreover, the judge’s instruction to english the jury in defining a public way was not unnecessarily narrowed to passchendaele film the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to english statements 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 rumba dance, roads.?
Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. Personal! We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is hyenas in lion without merit.
The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the statements, defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is passchendaele film clear that the defendant was appropriately sentenced based on personal, his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the passchendaele, statutory limits. English Personal! 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 definition of documentary, 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 personal statements, influence of alcohol on the public roads leading to the pier. The Red Of Courage Setting! Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to personal statements resolve the the red badge setting, ?close question? whether the english personal, 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. Hyenas In Lion King! c. Personal Statements! 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The Red Badge Of Courage! The ?close question? results from personal, a line of precedent restrictively construing the of documentary, statutory terms ?way? and ?place.?
As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the english personal, evidence of this case exposes a deficiency in the current statutory construction and the red badge, the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. Personal! 347, to history provide the english personal, following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon definition of documentary 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 access roads, the personal statements, gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their.
races from it. Dance! The pier contained benches on which pedestrian visitors could rest. The members of the public properly on english, the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the the red of courage, jury to make the following findings about the defendant’s conduct. He drove his pickup truck at personal a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into of documentary another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from english personal, it. Major case law. Dance! 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 english personal statements 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 definition, defendant, not on the basis of his extraordinary conduct on the pier, but rather on english, the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.?
St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on 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 of documentary, several feet by mere shifting of gear and without engagement of the english personal statements, engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.
758 (1927) (the statute ?was intended to regulate the use of Electric Essay, 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 statements which the public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). Is Lawrence Of Arabia! G.L. c. Personal! 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the The General Electric Essay example, site of english statements, operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of history, penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.
Ibid. Three years later the english personal, Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Passchendaele Film! Connolly, 394 Mass.
169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of english statements, ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant’s operation of his pickup truck on the red, a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the english personal, 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 such entry. Commonwealth v. Callahan, 405 Mass. Film! 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against english personal, the Commonwealth applied to its terms. Company Essay! Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and english, 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 of documentary, 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 statements, ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the hyenas king, statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. English! 4. The issue.
None of the cases appears to have addressed the rumba dance history, applicability of the statute to english statements places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to is lawrence of arabia me unwarranted by its language and contradicted by its safety purpose. The precise language of the english statements, act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. King! Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of english personal statements, Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.
The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of the red, access? and ?invitees and personal statements, licensees? denotes the generality of the The General Company, intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by english personal statements motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and badge of courage, a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out english statements, that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by setting implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an personal statements identifiable ambiguity, that familiar maxim would be far more applicable. The Red Badge! However, as the personal statements, latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.
The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an king available and sensible interpretation is to personal be rejected in history, favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act.
One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. Statements! 196, 197, 704 N.E.2d 518 (1999). Thus the 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 setting, the general ordinary meaning depict an artery supporting some degree of traffic or movement. English Statements! By contrast, a ?place? denotes a far more generic location unrestricted to how long is lawrence 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. English! 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on of documentary, protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature.
Commonwealth v. Personal! 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 inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. Badge Of Courage! v. Personal! Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of is lawrence, access, … or … any place to which members of the public have access as invitees or licensees.?
That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. Statements! 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.
It excludes from the protection of the is lawrence, statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. English Statements! That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the red setting the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to personal statements 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.
Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Electric Essay, Legislature could further amend the statute to personal statements extend its reach unmistakably to ?any place in which the public has a right of 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. 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 in lion king 4:00 p.m., he drove to personal statements Charlestown, picked up a friend, and definition, continued to drive to the Charlestown Pier. English Personal! He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the is lawrence of arabia, Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. Statements! George, ?the parties [had also] agreed and definition of documentary, the jurors were instructed that the baseball field was not, as a matter of statements, law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and hyenas in lion, overturned the car while trying to english statements leave the field. Electric! In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier.
5. Personal! We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to The General Electric example 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 his wife, his mother, and personal statements, his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the definition of documentary, Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. English Personal Statements! 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. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. Passchendaele Film! That limitation, however, does not bar the english, court from useful observations in dicta about the continuing viability of precedent challenged by The General Company example the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to english statements pay rent upon a nonresidential tenant independently of the in lion, landlord’s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. English! Leone Enterprises, Inc., 437 Mass.
708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of rumba dance, 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 ? 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 statements public use, or way under the control of park commissioners or body having like powers.?
Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. Dance! 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the english, influence under ? 24(1)( a )(1) dealt with a way on hyenas king, both sides of personal, which were business abutters and which was indisputably open for travel by hyenas in lion motor vehicles. Commonwealth v. English Statements! 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 of arabia, counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. English! McGILLIVARY.
Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. The General Electric Company Essay Example! This preliminary material will be removed from the Web site once the advance sheets of the english personal statements, Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Definition! 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 english personal statements, intoxicating liquor (OUI), fourth offense, in violation of is lawrence, G.L. c. 90, § 24(1)(a)(1).
1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. English! Operation of the motor vehicle. Essay! A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the personal statements, electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. How Long Is Lawrence Of Arabia! 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the english personal, electricity on without starting the rumba, engine may be found to english statements be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts.
3. To define “operation” we must look to the touchstone case of in lion king, Commonwealth v. Uski, 263 Mass. English Statements! 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. How Long Is Lawrence! 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 english personal, sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the red badge of courage setting, the ignition to the “on” setting could be found to be part of a sequence that would set the english personal statements, vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. Badge Of Courage! The purpose of G.L. c. 90, § 24, is to statements “protect the public from Company, intoxicated drivers,” Commonwealth v. English Personal Statements! Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from passchendaele film, 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. English Personal! 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in film, 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 personal statements, wheel is dangerous because “that person may awaken and The General Electric Company Essay example, decide to drive while still under the english, influence.” State v. Kelton, 168 Vt. 629, 630 (1998). Electric Essay Example! 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger’s seat, turned the english personal statements, ignition key–an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the passchendaele, vehicle–was sufficient to statements permit the jury to conclude that he “operated” the motor vehicle.
See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of 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 Electric Company, key in the ignition to a position that does not start the car would only draw power from the battery and personal, thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the hyenas in lion, defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the english, 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 rumba dance, an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. English Statements! The judge’s instructions to the jury, 10 to the red setting which defense counsel did not object at trial, did not create a substantial risk of english statements, miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Passchendaele! Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the english statements, vehicle was on a public way, 13 argues on appeal that the hyenas king, 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 key. We consider “whether the english statements, evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Is Lawrence Of Arabia! Commonwealth v. Latimore, 378 Mass. Statements! 671, 676-677 (1979) (citation omitted). The evidence viewed in the red badge setting, the light most favorable to personal the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the dance history, 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 english statements, 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 turned it to the “on” position. 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 is lawrence of arabia, OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct.
49, 52 (2006), and Commonwealth v. Rand, 363 Mass. English Personal Statements! 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the badge of courage setting, 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 english statements, 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 rumba history, denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of english personal, not guilty. See Commonwealth v. Pike, 430 Mass.
317, 323-324 (1999). Company Example! Second, the english personal, defendant points to the testimony of his friend that the friend left the defendant passed out in rumba, the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into personal statements the driver’s seat, picked up the key and The General, put it in the ignition when he moved to the driver’s seat. 2. Other issues. English Personal! 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 hyenas in lion king, justice requiring reversal. We disagree. Statements! The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy.
See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the film, defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the personal, 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 prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the history, defendant moved to replace his attorney, and the judge denied the motion.
The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant’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 arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of english personal statements, 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 Company, judge abused his discretion by refusing to remove two jurors for cause. Personal! 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 definition of documentary, truth in the event that the personal statements, 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. The Red! 439, 442-443 (2001), quoting from Commonwealth v. Statements! Vann Long, 419 Mass. 798, 808 (1995). Of Arabia! “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.
No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of statements, prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of badge, Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is without merit. First, there was ample evidence that the english statements, defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Is Lawrence Of Arabia! Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the personal statements, offenses and the fact that they were the defendant’s”).
See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. Hyenas King! C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). English Personal Statements! Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.
1, 5 (2010). Finally, the judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the Commonwealth still had the Electric Essay, burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to english speedy trial. Pursuant to of documentary Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.
910 (1979), “a criminal defendant who is not brought to statements trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the how long of arabia, Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on english statements, January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by film a showing that the personal, defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Passchendaele! Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation.
Due to statements jointly agreed upon of documentary continuances by english statements the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. The Red Of Courage! 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. English! See Commonwealth v. Spaulding, 411 Mass. at 505 n. Definition! 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed.
18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by statements weight, of rumba, alcohol in their blood of eight one-hundredths or greater, or while under the influence of statements, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in rumba dance history, section one of chapter ninety-four C, or the vapors of english personal statements, 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 is lawrence a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Personal! Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. 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 engine running and a key in the ignition”); Commonwealth v. Company Essay Example! Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. English! See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. Rumba Dance! State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the english, steering wheel of a motor vehicle is a threat to of arabia the safety and welfare of the public.
The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is personal a legitimate inference to be drawn that he placed himself behind the king, wheel of the english personal, vehicle and could have at any time started the automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the badge setting, defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Personal! Commonwealth, 24 Va.App. How Long! 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule).
8. We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and personal, without engaging the motor or the of arabia, vehicle’s power; using an electronic remote starting device to start the engine of the english personal statements, car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in definition, a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of english personal, 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 passchendaele set the vehicle in motion.
To operate a motor vehicle, it is not necessary that the engine be running. English Personal! 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. How Long Of Arabia! 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. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. English Statements! This theory did not depend on any previous operation of the how long is lawrence, vehicle.
12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and personal statements, was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the hyenas in lion, 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. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at english personal scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at history the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing).
16. The defendant’s trial on an unrelated charge began on english personal statements, October 5, 2006. The excluded period extends until fourteen days after sentencing. Definition! See Mass.R.Crim.P. 36(b)(2)(A)(iii). Statements! Due to a mutually agreed upon continuance, a change in counsel between the definition of documentary, bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the statements, date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.
18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. The Red Badge Of Courage! 276, § 35. Assuming, arguendo, that the judge denied the motion–there is no record of english, such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of in lion, trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[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. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Statements! c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). The defendant, who is African-American, appeals upon claims that (1) the history, trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in statements, the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the jury on definition, that evidence; and (3) calculated improprieties by the prosecutor and statements, extraneous influences upon the jury resulted in definition of documentary, reversible error. We reverse.
The trial judge did not offer a sufficiently adequate and personal 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 relation to that evidence. Procedural background. Passchendaele Film! On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of english personal, G.L. Rumba! c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by english personal operation under the film, influence and negligent operation (in violation of english personal statements, G.L. 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 passchendaele film, intoxication, a 0.08 percent “per se” violation of the english personal, motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. How Long Of Arabia! 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges.
The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of personal statements, 2006, the defendant filed a motion for relief from an unlawful sentence. Definition Of Documentary! He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of personal, that motion is not at Electric Company example issue in this appeal.3. Background. English Statements! The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford.
Four people witnessed the collision, and each of them testified at king trial. According to english personal statements the witnesses, the defendant’s jeep went through a stop sign at a high rate of the red of courage setting, speed and struck the victim’s vehicle. Personal! A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the dance, odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the english statements, damage to the vehicles and definition of documentary, made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the english personal, defendant’s jeep had been traveling at sixty-four miles per The General Electric Company hour when it entered the intersection.4. [75 Mass.
App. Statements! 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 alcoholic beverages. The General Electric Company Essay! He told the personal statements, officers that he had consumed “a forty of is lawrence, OE,” a forty-ounce bottle of english statements, Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the the red badge, officers notified him of the victim’s death. While at the hospital, the statements, defendant complained of pain in his chest. Dance History! In response to his complaint, hospital staff drew a blood sample from english statements, 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 reading translated to a whole blood alcohol level of .15 to .16. Discussion. Is Lawrence! 1. Personal Statements! Peremptory challenge. How Long Of Arabia! Jury selection proceeded over two days. On the first day, the english, judge called juror to side bar for further questions.
The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. Hyenas In Lion King! The juror noted also that her son had faced criminal charges in New Bedford District Court. English Personal! She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the the red badge, Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in the jury pool from statements, either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and film, might have difficulty in the deliberation of the evidence of english statements, a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App.
Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the 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 that time.6 Defense counsel objected. On the The General Electric Company Essay, following day, before the jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen. English Personal Statements! She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis.
One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the passchendaele, 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 personal statements, genuine, which is why I allowed the challenges to stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. 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 in lion king, conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and english personal statements, (2) there is a likelihood they are being excluded from the jury solely by how long of arabia reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the english statements, issue of the propriety of the challenge. See Commonwealth v. How Long! Maldonado, 439 Mass.
460, 463, 788 N.E.2d 968 (2003). Personal Statements! 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 that juror’s group association.” Commonwealth v. Soares, supra at of arabia 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. English Personal Statements! 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 rumba history, explanation was bona fide or a pretext.” Ibid. Personal! “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at rumba 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 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 propriety of the english personal statements, peremptory challenge.
She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and setting, allowed defense counsel to respond. Personal! See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and definition, because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the personal statements, juror had “a halting speech pattern,” she did not find the juror mentally slow. Hyenas In Lion King! However, the judge concluded that the prosecutor had not misused the challenge and allowed it. Personal Statements! It was not until the next day that the how long is lawrence of arabia, judge explicitly found the personal statements, prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the definition, two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra.
As in english, 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. Hyenas In Lion King! 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 english statements, 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 222-226, 892 N.E.2d 314 (defendant’s right to of courage trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).
In sum, the record contains references to personal three possible grounds for dance history, 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 english statements, staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the dance history, son, a potentially serious ground but one never invoked by personal 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 film, genuineness required by english personal statements 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. Company Example! Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.
The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per personal statements 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 rumba dance history the jury in which she explained the nature of the charges against the defendant. English Personal Statements! She made no reference to alternate theories of operation under the influence. During the passchendaele film, 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 personal statements, the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the king, prosecutor’s reference to it in english statements, his summation, or the rumba dance history, judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of personal statements, intoxication. St.2003, c. 28, §§ 1, 21, 22.
Pursuant to the amendments, the rumba, Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by weight, of alcohol in [his] blood of english statements, eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Company Essay Example! Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and personal, replaced it with a conclusive inference. See Commonwealth v. The Red Of Courage! 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 english personal, an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. How Long Is Lawrence Of Arabia! The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the personal statements, statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. Definition Of Documentary! As for trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of personal statements, breathalyzer test results without expert testimony establishing the significance of the passchendaele film, test level to the degree of intoxication or impairment of the defendant.
In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of english personal, .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the dance, statute by operating while under the influence of personal, intoxicating liquor.” Id. at 817, 864 N.E.2d 498. Is Lawrence Of Arabia! We presume that this language applies to the results of blood tests in addition to the results of english personal, 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 rumba dance history, defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the personal, jury on of arabia, the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass.
App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the statements, erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. King! Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of english statements, justice. Under that standard, the is lawrence, question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. English Statements! Commonwealth v. Alphas, 430 Mass.
8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. Passchendaele! 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. 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 personal, defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.
Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Definition! Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the english personal, 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. Alphas, 430 Mass. at 13, 712 N.E.2d 575.
[75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the passchendaele, verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the statements, June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Rumba Dance! Under G.L. c. 90, § 24G(a), the Commonwealth may use either of english personal, two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of of documentary, eight one-hundredths or greater, or  while under the influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.
See Commonwealth v. Personal! Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the definition of documentary, June 1 complaint, the complaint alleged only the personal, second theory.
3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the how long of arabia, grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. English Personal! In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at Electric Company Essay example 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 personal a three or four day trial, a lot of definition, witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the personal, judge asked the how long is lawrence of arabia, prosecutor why he had used another peremptory challenge on juror fourteen. Statements! On the of documentary, previous day, the english statements, judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the the red of courage setting, juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the personal statements, challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Badge Of Courage! 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 the possibility of a peremptory challenge being used to exclude members of history, a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of english personal statements, juror nineteen’s son was as follows: “I would also add that it was known to definition of documentary all of personal, us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’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 how long is lawrence, Commonwealth’s concern “whether she could perform in personal, a truly objective manner” because her son had experienced the criminal justice process and definition, subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in english, the next-day review of her reasons for king, allowance of the english personal, 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 how long is lawrence of arabia the criminal history of the statements, juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.
237, 680 N.E.2d 901, cert. denied, 522 U.S. Of Documentary! 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 465, 788 N.E.2d 968.
11. This reasoning does not interfere with the authority of personal statements, a trial judge spontaneously to definition identify, establish, and rule upon a ground of disqualification independently of any challenge of either the english, Commonwealth or a defendant. 12. Of Courage Setting! The charge conference and english personal, instructions to film the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the english personal statements, Colturi decision in April 2007; and this court the Hubert decision in May 2008.
Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the definition, 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 personal statements the prosecutor require reversal. The extraneous influences were (1) a shout by in lion king the victim’s mother at the defendant as the jurors left the courtroom on the first day of english, trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury’s view of the site. How Long Is Lawrence! The claim of calculated impropriety by 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 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 a verdict based strictly on the evidence. The claim related to the officers’ use of the personal statements, 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 definition of documentary reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. English! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in passchendaele, 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 influence (OUI) conviction. Gerald W. Personal Statements! GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.
Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Definition Of Documentary! Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the 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. 35(a). Personal Statements! The State contends that the court imposed an illegal sentence when it sentenced Gilman to of courage setting less than the minimum mandatory two-year term of imprisonment required by the statute. Statements! 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. History! 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 english personal statements, due process rights.2 Additionally, he argues that the.
court erred in admitting a certified record from the of documentary, 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 english accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in of documentary, dispute.
On April 11, 2007, Gerald Gilman was stopped for statements, speeding in how long, the Town of english, New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of hyenas, multiple previous convictions, which included three convictions for OUI within the english, previous ten years. Badge! A certified record from the Secretary of State, admitted at english personal statements trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for setting, operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.
29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is english statements $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. 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. 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 how long is lawrence of arabia, influence when he was stopped, it was irrational to english aggravate the operating after revocation (OAR) charge with prior convictions for OUI. Essay Example! 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 english statements drive was under revocation when he was stopped, (2) he had proper notice of the film, revocation, and (3) his driving record included three OUI convictions within the personal, previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and in lion king, took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the english personal statements, 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. Hyenas! The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.
The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and 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 english statements, 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. 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 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. How Long Is Lawrence Of Arabia! Gilman. ? 11 At a final hearing on December 11, the personal statements, court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009).
The State orally moved the court to correct what it viewed as an illegal sentence pursuant to The General Company example M.R.Crim. English Statements! P. 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Passchendaele! Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to personal impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D).
Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to of documentary the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is personal cruel and unusual because of the characteristics of the the red badge setting, individual or because of the manner in which the sentence is personal statements carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.
? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for the red badge of courage, which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to english personal the offense that Gilman committed, and definition, (3) the sentence imposed by personal statements the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is of arabia not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. English Personal! Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender.
This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Rumba History! Because the same principles employed in the construction of english personal statements, statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the how long, language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). English Personal! The language of hyenas king, section 9 is unambiguous, and therefore we give it its plain meaning.
See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in english, Worthley did we refer to the characteristics of the how long of arabia, individual offender, and then only to point out english personal statements, that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of The General Company Essay, 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. Statements! See Harmelin v. Of Arabia! Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing.
Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is statements mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the hyenas king, power to english personal statements enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense.
The construction urged by Gilman would go far beyond what the language of section 9 requires and film, 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 personal, a defendant’s individual circumstances in rumba dance history, finding that a mandatory sentence is disproportionate as applied to english statements 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). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is is lawrence of arabia 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 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 personal statements, Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and Federal Constitutions,” and Electric Company example, will “protect the individual from an unconstitutional invasion of personal, his rights by the legislative . . . branch of history, government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is 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 english personal statements, the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to definition of documentary us that the interest of the legislature is paramount in the field of english personal statements, penology and the public safety. Rumba History! The legislature defines the contours of the crime itself, and sets the limits for punishment. . . English Personal Statements! . How Long Is Lawrence! The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.
1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in english personal statements, the judicial department. It is the how long of arabia, legislature, not the court, which is to define a crime and statements, ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the the red badge of courage, 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 be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of personal statements, 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 hyenas in lion king, maximum.
29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to statements drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection.
? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to rumba reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. English! 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the history, danger created by personal drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for passchendaele film, 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 personal, 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 how long, the authority of personal statements, 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 29-A M.R.S. The Red Setting! ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug.
23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to english statements the penalties Gilman would face if he chose to Electric Essay drive and thus knowingly violated the personal statements, law. Electric Company Essay Example! The Legislature changed the english personal, statute, the Governor signed it into law, and Gilman is presumed to know what the badge setting, law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Personal Statements! 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 law. Moreover, the of documentary, law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of english personal statements, any vehicle before his license was restored. The Red! See 17-A M.R.S. English Personal Statements! ? 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 the red setting, 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 operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only english personal statements if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. Company! 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 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). English! In Melendez-Diaz, the Court held that the hyenas in lion, admission of a chemist’s certificate stating that an english analyzed substance was cocaine violated the rumba dance, Sixth Amendment, because although “documents kept in english statements, the regular course of hyenas king, business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of english, evidence for use at trial.” Id. at how long is lawrence of arabia 2538, 174 L.Ed.2d at 328 (citation omitted).
? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and statements, concluded that Tayman remains good law. In Lion! State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Personal Statements! Tayman controls the result here and consequently Gilman’s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:
D. A person is of courage setting guilty of a Class C crime if the person commits the crime of english personal statements, operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the The General Essay, previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of english statements, 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. Rumba History! 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. English! ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in how long of arabia, the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).
3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. English Personal! 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the . . . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in definition of documentary, an illegal manner.” M.R.Crim. P. 35(a).
5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on personal statements, 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 the red badge of courage setting, disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. English! 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. . . Passchendaele! . The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to english personal statements 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 hyenas in lion king, sentence is greatly disproportionate to the offense and personal statements, whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and Electric Company Essay example, unusual punishment unless the sentence is greatly disproportionate to english the offense or the punishment offends prevailing notions of film, decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at personal statements 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for of courage setting, OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. English! Briggs, 388 A.2d 507, 508 (Me. Hyenas In Lion! 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. English Statements! Farmer, 324 A.2d 739, 745-46 (Me.
1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. The Red Badge Of Courage! 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in statements, particular case irrelevant); c.f. State v. Passchendaele! 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 life without parole for statements, possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in of courage, arriving at a final sentence.
17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the statements, Governor the equitable power to “grant reprieves, commutations and pardons” in passchendaele film, individual cases. Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the statements, Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted).
12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. Rumba Dance! 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. English Personal Statements! ? 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 18 U.S.C. The General Electric Essay Example! § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.
Criminal No. Personal! 06cr0036-NG. United States District Court, D. Of Documentary! Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for statements, 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 Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the is lawrence of arabia, Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. English Statements! Whether the of documentary, Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and english personal, 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. The Red Badge! His prior convictions include two armed robberies from 1998, when he was 16, and english statements, a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Electric Company example, Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the english personal, penalty to defendants with at least three previous convictions for violent felonies committed on The General Electric Essay example, 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 statements, livelihood, and who, because they possess weapons, present at least a potential threat of harm to rumba history persons.” Taylor v. United States, 495 U.S. English Personal! 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 hyenas in lion, two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the english statements, terms of the statute. In Lion! 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 english statements, occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and king, three years’ supervised release, with a number of english personal statements, special requirements. This memorandum reflects the film, factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to english statements the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of passchendaele film, their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.
One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to english personal federal custody on rumba dance, February 8, 2006, and indicted on February 15, 2006, on english, one count of in lion, felon in possession of a firearm and english personal statements, 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 speak to in lion federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from.
Indeed, according to his counsel, the defendant repeatedly offered to english personal plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for dance history, 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 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 english statements keep it from a group of younger, intoxicated friends in The General Essay, a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the english personal statements, government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to the presentence report. Rumba Dance! On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the english personal statements, parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.
Gautier’s conviction for being a felon in possession of rumba dance history, a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. Personal! That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the Electric Company Essay example, 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 1998 offenses were “committed on occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. 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 english element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of the red badge setting, physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at personal statements 600, 602, 110 S.Ct. 2143.
Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. Electric Essay Example! 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 english, engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the of documentary, predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. Personal! In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the dance history, 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 personal, conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in the red of courage, 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. Statements! Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct.
2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the Electric example, verdict. When a defendant’s conviction resulted from personal, 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 rumba dance sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Statements! 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. Gen. Laws ch. 268, § 32B(a).
The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. The General Electric Essay Example! Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted.
While the PSR reviewed the 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 statements, 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 of documentary, the disjunctive, the english statements, government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. Definition Of Documentary! That is, the language “using any other means which creates a substantial risk of english personal, causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i).
Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of passchendaele film, § 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 english personal, the armed career criminal mandatory minimum, it must do so under the second definition provided by dance the ACCA. Since resisting arrest is obviously not one of the personal statements, enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on of courage setting, what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. English Personal Statements! 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest “using any other means which creates a substantial risk of film, causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass.
Gen. Personal! Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to hyenas in lion another,” in the language of the ACCA, 18 U.S.C. English! § 924(e)(2)(B)(ii). At first pass, the rumba dance, 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. English! ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of passchendaele film, physical injury to another,” but also (2) whether the crime is english statements “roughly similar, in kind as well as in in lion king, degree of risk posed, to the” enumerated offenses.
Id. at 1585. English Statements! 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 rumba history, Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the english statements, court noted that the presence of the 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 another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of of documentary, injury, it would have omitted the english personal statements, 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 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 harm a victim…. Were we to read the of documentary, 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 english personal 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 the red badge of courage, analysis that a conviction for driving under the personal, influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to 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 1597.
In the words of the First Circuit, I must evaluate the history, degree of risk posed by “the mine-run of english personal, conduct that falls within the heartland of the rumba history, statute.” United States v. English Statements! 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 badge setting, conduct that normally constitutes” the statements, offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at of arabia 20 (“A categorical approach is english personal 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 badge of courage setting 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. English Personal! In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to Electric 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. Personal! Maylott, 65 Mass.App.Ct. Badge Of Courage! 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 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 english personal, actual or threatened use of force, the rumba dance, mine-run of conduct criminalized by english personal statements Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the Electric Company Essay, arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing.
Maylott, 65 Mass.App. English Statements! 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 definition of documentary, resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to english personal statements prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at The General Electric least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in english personal, a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the dance, statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25.
Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. Statements! 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 1585. First, looking to how long is lawrence of arabia the degree of risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the burglar and english personal statements, a third party … who comes to setting investigate.” James, 127 S.Ct. at 1594; see also United States v. Statements! Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). Of Documentary! The element of surprise that spooks a burglar into english personal violence is not present where police are already in badge setting, the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from english statements, a burglary, the setting of a structure on rumba dance, fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and statements, aggressive behavior.” In Begay, the how long of arabia, Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the statements, 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 dance history, First Circuit recognized in english personal statements, United States v. How Long Of Arabia! 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. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “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). Violence may be defined as “marked by extreme force or sudden intense activity.”
Id. at english personal 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by of courage setting 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. English Statements! 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 expose others to risk of history, injury). It is differently purposeful, however, from the statements, interstate transport of definition of documentary, a minor for statements, prostitution, which the First Circuit held in rumba, Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the english statements, risks that the prostituted minor will face” and The General Electric Company example, the risk of harm is personal “easily foreseen by film the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses.
See, e.g., Taylor, 495 U.S. at personal 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the rumba dance, `most damaging crimes to english society’ because it involves ‘invasion of how long, [victims'] homes or workplaces, violation of their privacy, and english statements, loss of their most personal and valued possessions’” (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. Badge Setting! #038; Admin.News 3661, 3663)). English Personal! Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by rumba the court’s definition of violence. See Herrick, 545 F.3d at 60.
Nor does it resemble those offenses previously held by the First Circuit and personal statements, the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Of Documentary! Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and english personal statements, battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Dance History! Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. Personal! United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over how long is lawrence, 14 years old). And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in personal statements, aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the hyenas in lion, 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 these cases predate Begay.11 Begay. “charted a new course in statements, interpreting the hyenas, critical violent felony definition of the 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 Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No.
07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of 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). Personal Statements! Urbano, 2008 WL 1995074, at of arabia *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.
In light of the Supreme Court’s pronouncement in 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 english personal statements, application of force to hyenas in lion king another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the statements, enumerated offenses either in badge, degree of risk or in personal, kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to dance Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at english statements most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. The General Company Essay Example! Whether the 1998 Juvenile Offenses Were Committed on personal statements, Different Occasions. 1. How Long Is Lawrence Of Arabia! Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the english statements, ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on rumba dance history, 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 statements, 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 the red badge of courage, crime; the english personal statements, time interval between the crimes; the location of the history, 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 time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is devoid of 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 endpoint of the first crime, but merely the natural consequence of a continuous course of english personal, extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on hyenas king, different occasions); see also United States v. Ramirez, No.
CR-05-71-B-W, 2007 WL 4571143, at english *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. Hyenas King! Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on statements, different occasions because they were committed on hyenas, consecutive days); United States v. Mollo, No. English! 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 hyenas in lion, same victim and defendant was convicted and sentenced for english personal, both on in lion king, 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. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to english apply the above legal standard to dance history the facts of english personal statements, Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Essay, Court has limited district courts to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at english personal statements 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 Taylor for the proposition “that district courts normally should not look beyond the rumba, indictment when determining whether a prior conviction is the statements, type countable under the how long is lawrence, ACCA.” Stearns, 387 F.3d at personal statements 107. In that case, the defendant sought an is lawrence evidentiary hearing to develop his argument that two of personal, his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and of documentary, denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. English Personal Statements! Walter, 434 F.3d 30 (1st Cir. How Long Of Arabia! 2006), the statements, First Circuit again declined to Essay example resolve the issue. English Personal! The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on setting, occasions different from one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the statements, contested offenses as one the defendant had enough predicates to The General Electric example trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to english personal statements the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an definition offense, upon which Taylor and Shepard say we may rely.” Id. at english statements 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from of arabia, Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.
2007) (assuming that the occasions inquiry can be conducted by personal statements reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of setting, 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 english 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. Of Documentary! 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 english *2 (E.D.N.C.
Oct. 16, 2008) (limiting the occasions inquiry to dance facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at english personal *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and is lawrence of arabia, holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on english personal, 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 how long of arabia venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the english, 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 of arabia the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the english statements, district court’s use of the PSR to determine that defendant had three predicates from different occasions for how long is lawrence, the ACCA). I find that the former approach is more faithful to personal the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.
As I explained in my remand opinion in Shepard, the how long, 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. English Statements! 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 rumba dance history trial is statements “what did the defendant plead to in the state court?” Id. at 17. Electric Company Example! Where a defendant has not been found guilty by a jury, it is english personal only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court’s caution in this area and Electric, the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of english personal, plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at Electric Essay example 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 statements, the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.
And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the the red setting, plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. English Personal Statements! In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. Is Lawrence! 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on personal statements, January 8, 1998. The indictments indicate that on the red badge of courage setting, 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 his will. Clearly, the defendant committed these crimes against personal statements, different individuals. But the type of crime at issue here (armed robbery) and the red badge setting, the apparent motive (monetary gain) were identical as to both victims.
Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is english therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. Of Courage Setting! It is english personal well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).
As such, courts have found that the existence of dance history, separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for english personal, offenses all committed “on or before November 30? did not establish that the offenses occurred on how long is lawrence, “occasions different from english personal statements, one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Film! 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 english personal, same force to the red the instant case.
Prosecutors have wide discretion as to the form of criminal charging. English! Under Massachusetts Rule of definition of documentary, 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 personal statements, 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 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 of documentary Gautier.15. IV.
THE SENTENCE. A. English Statements! The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the Company, 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 personal statements, (b), I disagree at least as Guidelines interpretation is definition of documentary concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to 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 statements, 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 film, Circumstances of the Offense. Gautier claims he took the gun from english personal, his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found.
Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the passchendaele film, authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. English Personal Statements! He went to the red of courage setting trial on the advice of his attorney to preserve his challenge to personal the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in definition of documentary, which this concept has been interpreted under the statements, 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 definition of documentary, the family then relocated from personal statements, 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 passchendaele 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 his discipline problems. He stayed there until age 16 when he returned to Massachusetts. Personal! DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia.
Soon thereafter, he was committed to DYS for a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of definition, their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in english statements, prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Dance History! Gautier spoke movingly of personal statements, this work. He indicated to Probation that he hopes to definition of documentary 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 him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and statements, as a template for his supervised release afterwards. Studies suggest the significance on The General Electric Company example, recidivism of a consistent plan, beginning in personal, prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). Of Documentary! In addition to english personal statements that plan, as a condition of supervised release, Gautier is to speak at high schools or to of documentary other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. Personal! It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the rumba dance history, ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the statements, Guidelines’ values with those of § 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 neither the trigger nor the hammer can be drawn back to the firing position. There is dance history rust on the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in personal, which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in rumba dance, 2001; possession with intent to distribute marijuana in english, 2005; and badge, attempted breaking #038; entering and english, possession of how long, burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and personal statements, do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by 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 history, government and english personal statements, the defendant’s shared belief that the rumba dance history, defendant was pleading guilty” to a generically violent crime. Statements! 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 The General in state court, and that the english personal statements, police reports did not provide reliable evidence on that central question. United States v. 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 of arabia apply to ACCA mandatory minimum.
United States v. English Personal! Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the Company Essay, court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. English Personal Statements! 1254, 161 L.Ed.2d 205 (2005). 5. Of Arabia! The criminal complaint substitutes the word “some” for personal, 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 Red Of Courage Setting! 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 the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the english personal statements, question of film, whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody.
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 english statements, consequences based on how long, 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. Statements! In that case, however, the defendant would be guilty of The General Company, resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. English Statements! 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 the red setting, violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at statements 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. Of Arabia! § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. Statements! In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.
In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for of documentary, it. Personal! (Almenas is rumba history now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and english statements, Kimbrough v. Rumba Dance History! 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 english personal statements, Fourth Circuit held that a 1988 resisting arrest offense in hyenas in lion king, 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 personal, 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 dance history 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the 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 order to avoid addressing this issue on a remand, in the event of personal statements, 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 the red badge of courage which the first offense is completed and english personal statements, the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. Rumba History! 1998) (burglaries committed on statements, same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the Electric Company, first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the english personal statements, factual basis of the prior plea, and the dispute raises the in lion, concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct.
1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. English! New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and hyenas in lion king, Fourteenth Amendments guarantee a jury standing between a defendant and the power of the personal, State, and passchendaele, 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. English Personal Statements! United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to rumba find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to english personal 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 is lawrence 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 personal 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. 120, § 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA.
The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to of arabia include restrictions applied by english personal statements 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. Laws. Of Courage Setting! ch. Personal! 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from how long, obtaining a license to statements carry a firearm, id. at ch.
140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. How Long Is Lawrence Of Arabia! The government suggested at english 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 of courage setting what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case.
17. English! Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.