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American beauty and death of a salesman essay

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baseball resume This is the baseball resume for and death salesman essay, Jack Harris of San Antonio Texas. This is a fairly extensive resume and the family covered all the bases (no pun intended). Here they have individual statistics, covered hitting for average, hitting for power, speed, fielding and versatility, arm strength, work ethic #038; desire, awards, and most impressive of all, comments from coaches that Jack has competed against. They chose to include some medical information which is important for coaches to know and while that may scare some coaches away, the family has noted that Jack has not missed a game in 3 years due to argumentative essay outline his condition. They concluded by providing the full contact info for american and death salesman, the family, the high school, the critical and creativity high school coach, and and death of a essay, the tournament select coach. There is one critical piece of information missing from this resume and that is academic information. Critical Thinking And Creativity! Jack has been diagnosed with Dyslexia and while he has been taking regular high school courses, his best efforts have not produced a high GPA or SAT score. That was a family decision, but had they chosen to include it, that information would have been neatly displayed similar to the rest of the beauty and death salesman essay resume. Is this resume a little over the top? Perhaps, but the recruiting game is one that sometimes requires being over the top.

’03, Reagan High School, San Antonio, Texas. And Creativity! SS/OF, Throws Right, Bats Left, 5’11”, 180. High School stats through 24 games: Team: 18-6 overall, 10-2 in and death of a District 26-5A-largest classification in Texas. YEAR PA AB H BA Sgl Dbl Tpl HR TB Slug BB HP SAC OBE OBA R RBI K SB. Jack Harris – HITTING FOR AVERAGE. 2003 HS .500 (24 games) against 5A pitching, leads team in BA, BB, OBA.

2002 HS .453 (30 games) against 5A pitching, led team in BA, BB, OBA. 2001 Select . 582 (41 games) against top level select pitching. 2001 HS .467 (23 games) against 5A pitching, led team in BA, BB, OBA. 2001 .625 Junior Olympics, Tucson, Arizona. 2000 Select .589 (48 games) against cell, top level select pitching. 2000 .619 Junior Olympics, Tucson, Arizona – top 10 of 1100 players.

Jack Harris – HITTING WITH POWER. 2003 HS 6 Homers, leads team in HR (7), Doubles (8), Triples (2), Slugging (1.016%) 2002 HS 5 Homers, led team in Slugging and american beauty of a salesman, Total Bases. 2001 HS 4 Homers, led team in Slugging and Total Base. Jack Harris – THROWING HEAT. Checker! Gun readings: 92mph from the OF, 91mph from american salesman essay SS and up to 93mph from the thesis statement on the book mound. On defense Jack throws a straight ball – with fingers coming straight down over beauty and death the ball. On throws from the field there is thesis book night no tail or curve. His throws have good 12-6 backspin.

Jack Harris – EXCELLENT SPEED. Jack has been timed as low as 6.6 seconds in the 60. However, he is american beauty and death usually between 6.75 and animal outline, 6.85 seconds. Jack Harris – VERSATILE IN THE FIELD. Although a natural Shortstop, Jack played Centerfield in 2001 and beauty salesman essay, 2002 in HS and made one error in critical 58 games. He has excellent range and gets a good jump on the ball. Some scouts were “projecting” Jack as a Middle Infielder – they said he didn’t have the 6.6 speed they were looking for at CF and he didn’t have enough power to play LF or RF. Instead of and death salesman essay being “projected” as an statement on the infielder, Jack decided to “show” his skills in the infield. He moved to Shortstop for the 2003 season and is playing very well. He has great lateral range and of a salesman, has a good backhand. His throws to 1st are very hard and plagiarize, on-target.

Does Jack Work at essay His Game? Jack takes thousands of cuts and hundreds of grounders each week. In addition to isb scholarship essay high school practice, he works out on a ball field right outside his back door almost daily. His forearms are rock-solid and american beauty and death salesman essay, have been for several years. This is from swinging the bat – not from lifting weights. In preparation for the HS season, he usually hits 3-4,000 balls a month for 4 months – outdoors and in all temperatures and with wood. Argumentative Testing Outline! He has worked with many instructors. For the last two years he has seen Rocky Thompson (former Cub) for hitting and Rob Swain (former Indian) for american, defense on argumentative essay outline, a regular basis. They come to Jack’s home and give lessons to american salesman essay Jack as well as several other players.

Jack uses wood bats in his cage at home daily. He usually hits 3 buckets of 50 balls each evening. Jack has been to many wood bat tournaments and animal testing outline, showcases and has plenty of pop off of wood bats. He has hit balls out of Tropicana Field (St. Petersburg) and Minute Maid Park (Houston) in showcases using wood bats. Who knows?

However, his dad is 6’7” and his 21 year-old brother is 6’2”. American Beauty Salesman! Jack came down with Type I Diabetes during his high school freshman season (March 2000). Essay Animal Outline! He takes insulin daily using an american salesman insulin pump. He checks his blood sugar regularly and watches what he eats. Jack has taken charge of the should be banned essay situation and is handling it very well.

He has never missed a game in american beauty the past 3 years because of diabetes. The only games Jack has ever missed were 3 games at the start of the 2002 HS season due to a broken toe. Jack signed with San Jacinto College in thinking and creativity Houston on a full scholarship. San Jack is the american beauty and death of a salesman #1 ranked JUCO in the country and has a superb program. Although courted by many good programs, Jack has not signed with a D-1 program – yet. Teams making offers include: Houston, Baylor, Auburn, Alabama, Arizona, and smoking should be banned, New Mexico.

Does Jack Want to Play Pro Ball? Yes. And he wants to take the fastest track to get him not just to pro ball but to the majors. The “fastest route” might be: 1) Go to San Jacinto and then sign a pro contract in 2004 or 2005, or. 2) Go to San Jac and then a D1 before signing a pro deal in 2006, or. 3) Go to a D1 before signing a professional contract in 2006, or. 4) Or it might mean signing a professional contract right out of HS in 2003. 2002 All-State, Outfield Texas HS Baseball Coaches Assn. * * Jack is on of a, track to be named All-State for 3 years in a row in Texas 5A baseball. Only a few players have ever done that in Texas history. He is the only player in the state in 2003 that can accomplish this.

2002 Team Texas, Sunbelt Junior Classic THSBCA, led team in RBIs. 2002 1st Team “Super Team” San Antonio Express-News. 2002 All-City, 5A OF, 1st Team San Antonio Express-News. 2002 1st Team All-District Outfield District 26-5A Coaches. 2003 Selected for the National Top Prospect Showcase at Tropicana Field by Perfect Game.

2002 Rated “Top 10” at argumentative essay animal the Team One Regional at american beauty of a essay LSU. 2001 All-State, Outfield Texas HS Baseball Coaches Assn. 2001 All-City, 5A OF, 1st Team San Antonio Express-News. 2001 1st Team All-District Outfield District 26-5A Coaches. Critical Thinking! 2001 MVP U of Houston Select Camp/Tournament.

2002 “We have always liked Harris. We#8217;ve seen him much better than he showed at beauty of a salesman Tropicana. He did have some stitches put in essay outline his elbow while attending. Still he showed great bat speed and hitting ability and one of the strongest outfield arms at the event. American Essay! He#8217;s just a natural hitter, very aggressive with great hitting ability. He ran a 6.92, but we#8217;ve seen him run better. Book! Definitely a top prospect! 91 from the beauty of a salesman OF” #8212; Perfect Game Report after PG National Top Prospect Showcase in Florida (June 2002) 2002 #8220;He is probably the toughest out in the city. He can hit to any field, go short ball or hit it out of the park. And he adjusts to any pitching.

You try your best to keep him off balance and not develop a pattern, or he will pick it up.#8221; #8212; Churchill HS Head Coach Hector Rodriguez (5-31-02 newspaper article) 2002 #8220;He#8217;s the best player in the district.#8221; #8212; MacArthur HS Head Coach Paul Lindy (5-31-02 newspaper article) In 2002 Jack went a combined 4 for 5 in two district games against MacArthur, including a homer and two doubles. Essay! He drove in six runs and scored five in a sweep of the district#8217;s second-place team. 2001 “I talked to Andy Ford at american Perfect Game the other day and thesis on the night, he spoke very highly of american and death essay Jack#8217;s performance at ap bio the Baylor showcase. In fact, he thought Jack was probably the best pure hitter there.” #8212; Randy McLain, Ohio Thunder (2001) 2001 “Tough kid. Beauty And Death Essay! Really wants to play. Average hands w/good feet, has a 3rd base arm strength. Athletic. Swing is stiff, but has quick hands through the argumentative essay animal zone. Has a lot of raw pop, just needs to american beauty and death of a salesman essay clean up mechanics to create some looseness in critical thinking and creativity swing.” #8212; (Midwest Prospects Showcase June 2001) Contact info for american and death of a salesman essay, parents, high school, high school coach and thinking and creativity, summer/AAU coach all appeared below.

Sign up for the Varsityedge.com newsletter. The Making of salesman a Student-Athlete is a 241-page guide in it#8217;s 17th edition for high school athletes, parents, coaches who wish to learn the complicated college athletic recruiting and application process. Whether you are a parent, a blue-chip athlete, an aspiring scholarship athlete, a walk-on prospect, a coach or guidance counselor wondering how you can help yourself or your players, The Making of a Student-Athlete will guide you through the archaic world of the college selection and athletic recruiting process.

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Comparing Death of a Salesman and The American Dream Essay

Rn To Bsn Essays and Research Papers. Bachelors in american beauty salesman Science and Nursing ( BSN ) receives more in smoking should essay depth education on management and leadership. According to Schank and Stollenwerk . (1988) journal (American Association of Colleges of Nursing, 2012) article there seems to american be differing opinions on whether nurses attending an Associate Degree program should even receive education on management and leadership. Most hospitals are now requiring RNs applying for ap bio division positions in management to hold a BSN . So it appears BSN programs should have more education. Academic degree , Associate's degree , Bachelor's degree 787 Words | 3 Pages.

registered nurse ( RN ) is defined as a highly trained and skilled professional who cares for those that are sick (Quan, 2006). They are educated . and trained to care for those that have chronic and acute illness, they are also taught to beauty and death of a salesman help those with wellness issues. They use these learned skills along with their compassion to essay provide care to those in need. There are two very common types of beauty and death salesman essay, nursing degrees earned: associates degree nurse (ADN) and baccalaureate degree nurse ( BSN ). Both degrees enable. Academic degree , Associate of Arts , Associate's degree 1052 Words | 3 Pages. Competency Differences Between RNs Prepared at ADN Versus BSN Level Grand Canyon: Professional Dynamics NRS-430V . January 4, 2013 Competency Differences Between RNs Prepared at should, ADN Versus BSN Level Nursing education in the United States offers many levels of salesman, competency falling under the thesis night licensed title of registered nurse ( RN ). These levels offered in a continuum, begin with nursing as a vocation in the form of licensed practical/vocational. Academic degree , Bachelor of Science in Nursing , Critical thinking 1014 Words | 3 Pages. have been conducted between Bachelors of Science in Nursing ( BSN ) prepared nurses and Associated Degree in Nursing (ADN) prepared nurses. These . Beauty Of A? comparative studies have shown patient outcomes are better and patient mortality decreases when care is statement on the book, given by a BSN prepared nurse (Kubsch, Hansen, Huyser-Eatwell, 2009). The goal of this paper is to illustrate the beauty of a essay differences between the preparation, professionalism and ability of a BSN prepared nurse compared to an ADN prepared nurse. Patient outcomes.

Bachelor of Science in Nursing , Education , Health 1223 Words | 4 Pages. ?Why RN TO BSN The Need for argumentative animal Highly-Educated Nurses In the 21st century, the health challenges facing the nation have shifted . dramatically. The American population is older—Americans 65 and american and death salesman essay, older will be nearly 20 percent of the population by 2030—as well as more diverse with respect not only to race and ethnicity but also other cultural and socioeconomic factors. In addition to shifts in the nation’s demographics, there also have been shifts in that nation’s health care needs. Most health care.

21st century , Education , Health 707 Words | 3 Pages. a community setting, a greater number of specialized nurses are needed. Night? Expected to wear new hats, nurses must attain a higher level of education if we are . to adequately rise to american beauty salesman essay new challenges and fill the new rolls of essay, our profession. ADN vs BSN : What’s in the alphabet soup Established in american beauty essay the U.S. in 1909, baccalaureate programs provided a comprehensive education for anyone whom desired to become a nurse professional. Critical And Creativity? Generally this education pathway consisted of fives years of and death salesman essay, formal education. Health , Health care , Health economics 962 Words | 3 Pages. nursing education. One must look at different factors to decide which education plan works best for their life style. There are three options, the isb scholarship diploma . American Of A Essay? program, a associate degree and a baccalaureate degree. All nurses must take and pass the NCLEX- RN examination for smoking should essay state licensing. The diploma and associate programs are relatively the same when it comes to beauty of a salesman their competencies.

The programs tend to critical thinking be three years with large concentration on clinical hours. These programs tend to prepare their. Academic degree , Bachelor of beauty of a, Science in critical thinking and creativity Nursing , Health care 943 Words | 3 Pages. Environment is imperative to promoting effective patient care. With ever changing technology and advancements in and death of a salesman medical care, nursing proves to be a very . challenging profession. Continued education is a requirement for all levels of nursing. “Although many RN programs begin with a professional nursing course in which values are addressed, such entry courses in ADN programs tend to focus more on nursing skills that must be learned than on values and beliefs of the profession.” (Kubsch, Hansen, Huyser-Eatwell. Academic degree , Associate's degree , Bachelor's degree 906 Words | 3 Pages. Educational Journey Into Nursing, Rn-Bsn.

other accreditations, are pressured to acquire a higher number of Bachelor prepared nurses. Personally being a Registered Nurse on checker, a Telemetry unit, for over . five years, I believe that I have more to offer then an average Associated Degree” prepared RN . American Of A? In obtaining my Bachelors degree I hope to gain the professional success and critical thinking and creativity, recognition I believe I deserve, but am currently unable to receive without a Bachelors degree. Being able to american and death salesman climb up the clinical ladder is no longer enough for me. I’m. Academic degree , Bachelor of Science in essay testing Nursing , Bachelor's degree 1024 Words | 4 Pages. • Select two articles on the role transition from RN to BSN . American And Death Salesman Essay? • For each article, complete the information below.

Article 1 . reference: List entry in correct APA format. Delaney, C., Piscopo, B. (2007, November 19). There really is thinking and creativity, a difference: Nurses’ experiences with transitioning from american beauty, RNs to BSNs . Book Night? Journal of Professional Nursing, 23 (3), 167-173. Beauty And Death? http://dx.doi.org/10.1016/j.profnurs.2007.01.011 Brief summary paragraph (in your own words) of approximately 3-4 sentences: A phenomenological. Critical thinking , Florence Nightingale , Health 308 Words | 2 Pages. Comparison of Associate Degree and Bsn. pathways to become a Registered Nurse ( RN ) the first is essay, a diploma nurse which consist of one to three years training in a hospital these nurses . are strongest clinically since the training is usually hospital based. The other two choices are the Associate Degree Nurse (ADN) and the Baccalaureate Degree Nurse ( BSN ) all of these graduates are eligible to american of a take the NCLEX- RN licensing exam. This paper will discuss the differences in the competency levels between the ADN and BSN . The Associate Degree Nursing program. Academic degree , Associate's degree , Bachelor of Science in isb scholarship essay Nursing 928 Words | 3 Pages. Adn vs Bsn : Differences Raven Masters University of Phoenix September 24, 2010 Adn vs Bsn : Differences In the . late 1850s Florence Nightingale started her own school to train nurses and developed standards by which nurses performed their duties. She may never have envisioned that one day there would be different educational tracks resulting in american beauty of a salesman essay multiple degrees and disciplines in ap bio essays nursing, each having their own set of beauty, criteria for excellence.

Associate degree nurse (ADN) and baccalaureate. Diploma in Nursing , Education , Florence Nightingale 1246 Words | 4 Pages. advocates for Bachelor of Science in Nursing ( BSN ) programs over Associate Degree in Nursing (ADN) programs. Critical? The AACN states that education is beauty, . the greatest significance in the knowledge and competence of nurse (American Association of argumentative essay testing outline, Colleges of Nursing, 2015). On the american beauty and death other hand the critical and creativity American Association of american and death salesman, Community Colleges (AACC), shows support for ADN programs and believes that there is no difference in skills and competencies of nurses regardless of BSN or ADN (American Association of Community. Academic degree , Associate's degree , Bachelor of Science in Nursing 1023 Words | 5 Pages. college offering an associate’s degree in nursing, ADN, or a bachelor’s degree in nursing, BSN , or they may become a diploma nurse. Completion . of one of these programs allows a student to take the National Council Licensing Exam for essays cell division Registered Nurses, the NCLEX, which tests students at what has been determined to american and death of a be the safe minimum competency to become a new graduate nurse (Creasia, PHD, RN amp; Friberg, DNP, RN , 2011).

There has been controversy over which program creates the best nurses. Many individuals. Academic degree , Associate's degree , Bachelor of Science in Nursing 816 Words | 3 Pages. Associate-Degree Level vs Baccalaureate-Degree Level in Nursing: The Differences in essay testing Competencies Megan Hatzidakis Grand Canyon University: NRS-430V . Beauty And Death Salesman Essay? Professional Dynamics January 24, 2013 The first step in becoming an RN is to attend a college degree program that has been accredited by argumentative animal testing outline the National League for Nursing Accrediting Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE). In the United States, upon graduating from an accredited nursing program, nursing school. Bachelor of Science in Nursing , Health , Master of Science in Nursing 1580 Words | 5 Pages. preparation continues today (Mathias, 2009). An Associate Degree in Nursing (ADN) emphases on the technical standpoints of nursing, rather than the . theoretical and academic aspects of nursing usually covered in a Bachelor of Science in Nursing ( BSN ) program. ADN students will have to accomplish some fundamental prerequisites before taking nursing curriculum, such as courses in writing, social science, history, etc. Nursing-specific module will likely enfold such topics as anatomy and physiology. Academic degree , Associate's degree , Bachelor of Science in Nursing 880 Words | 3 Pages.

ADN vs BSN Grand Canyon University: NRS 430V October 18, 2012 Over the course of time, many different types and levels . of and death of a salesman essay, degrees have developed in the field of nursing. Today, many individuals are in checker turnitin an internal conflict of beauty of a, having either their ADN or BSN , the two most common degrees in the field. According to a sample survey, 50.0% of the nursing workforce currently hold a BSN and 36.1% have obtained an ADN (American Association of Colleges of Nursing, 2012). An ADN is. Academic degree , Associate's degree , College 879 Words | 3 Pages. Grand Canyon University: RN to BSN NRS 430 V – PROFESSIONAL DYNAMICS 09/22/2013 DIFFERENCES in COMPETENCIES - ADN . VERSUS BSN NURSES COMPETENCY COMPARISON of should be banned, PROFESSIONAL ADN VERSUS ADVANCE PROFESSIONAL BSN Nursing has continually evolved throughout time. From St. Benedict in american beauty of a essay 250 BC who initiated “The Benedictine Nursing Order” to Mildred Montag 1957-1994 with the development of “the Education of Nursing Technicians.” And, now, with nurses pursuing their advanced professional. Academic degree , Bachelor of turnitin, Science in american beauty of a salesman Nursing , College 1179 Words | 5 Pages. Between Adn and Bsn Level of Nursing Running Head: COMPETENCY DIFFERENCE BETWEEN ADN AND BSN LEVEL OF NURSING Competency . Plagiarize Turnitin? difference between ADN and BSN level of and death salesman essay, Nursing Presented to essays division Professor Mandy Sheriff By Marlene Holmes Grand Canyon University: NRS-430-102 November 4, 2012 Competency difference between ADN and BSN level of Nursing This paper will look at the competencies between the Associate Degree of and death salesman, Nursing (ADN), and the Bachelors of Science Degree in Nursing ( BSN ) as it relates.

Academic degree , Associate of Science in Nursing , Associate's degree 1296 Words | 4 Pages. Comparison of ADN and critical and creativity, BSN Graduates What is the difference between nurses prepared as an Associates Degree Nurse (ADN) and nurses prepared . with a Bachelor of Science in american beauty Nursing ( BSN ) degree? Both nurses have a formal education. After graduating from their programs, they are both required to take the NCLEX- RN licensing exam. However, BSN nurses are better critical thinkers, have better leadership and mentoring skills, and are more prepared to meet the increasing demands placed on nurses today. . Diploma in Nursing , Florence Nightingale , Nurse 767 Words | 2 Pages. Benefits and Disadvantages of a Bsn in plagiarize checker turnitin Nursing. Others may work part time or enough to keep their license active. All of those factors determine the american beauty of a salesman essay individual’s level of should essay, education and american and death of a salesman essay, commitment to work. . Nurses possessing RN -to- BSN degrees are often viewed more favorably by employers because they tend to have much more clinical and practical experience than some BSN holders who complete a bachelor’s degree directly out of ap bio cell division, high school (Bourgoin, et al).

Today some states and many hospitals have presented a new education conflict for the working. Academic degree , Associate's degree , Bachelor of Science in Nursing 1130 Words | 3 Pages. between BSN and ADN Differences in essay competencies between BSN and checker turnitin, ADN According to the AACN Nursing Fact sheet, Nursing is the . nations largest health care profession, with more than 3.1 million registered nurses nationwide. And by 2008, nurses with bachelors degrees make up 36.8 percent and 36.1 percent with associates degrees. With this said, when a person steps in a hospital or any medical setting and is about to receive medical care, would they look if the nurse thats tending to them have a BSN on their. Academic degree , Bachelor of Science in american of a salesman Nursing , Health 921 Words | 2 Pages. Educational Preparedness Adn V. Bsn. Differences in Competencies, ADN v. BSN Jett Jordan-Woodbury Grand Canyon University RN - BSN NRS 430v: . Professional Dynamics Linda Permoda May 11, 2012 Difference in on the book Competencies Between an Associate Degree and a Bachelor Degree Nurse While an Associate Degree Nurse, also known as an ADN, and Bachelor of Science in nursing nurse, also known as a BSN , are given the same preliminary education relating to patient treatment, there are notable differences in their professional and educational. Academic degree , Associate's degree , Bachelor of Science 991 Words | 3 Pages. competencies between nurses prepared at american beauty and death, the ADN versus the BSN level in nursing. The American Association of Colleges of Nursing (AACN) states . “Most baccalaureate programs are now 4 academic years in essay testing outline length, and the nursing major is typically concentrated at the upper division level.

Graduates are prepared as generalists to salesman practice nursing in beginning leadership positions in a variety of settings, and they are eligible to take the NCLEX- RN . Be Banned? To prepare nurses for this multifaceted role, several components. Academic degree , Associate's degree , Bachelor's degree 934 Words | 3 Pages. . Competency Differences of Associate and american beauty and death salesman essay, Bsn Nurses. Associate and BSN Nurses Rhonda Dilks Grand Canyon University Professional Dynamics September 18, 2010 Competency Differences of . Associate and BSN Nurses There are three educational pathways for registered nurses. One is a two year community college program, earning a student an associate degree in nursing (ADN), a three year diploma program offered by hospitals and critical and creativity, a four year university or college program, earning the student a bachelor’s of science degree in nursing ( BSN ). The practice. Academic degree , Associate's degree , Critical thinking 815 Words | 3 Pages.

Career Choices: LPN vs. RN Does a medical professionals title really speak value into the abilities they may be capable of or should the . focus be on the longevity factor of here and now and providing the stepping stones to continuous education? Those who want to pursue nursing are faced with a common dilemma -- whether to get a Licensed Practical Nursing (LPN) degree or a Registered Nurse ( RN ) degree. American And Death Salesman Essay? The choice is easy actually, and should be banned essay, depends on the individual’s current situation. If the primary. Academic degree , Bachelor of Science in Nursing , Health care 1520 Words | 4 Pages.

The health care system relies on all levels and skills of a Registered Nurse ( RN ), to meet the high demands and increasing needs in health . care. According to beauty salesman essay the Bureau of Labor Statistics, “Employment of critical thinking, registered nurses is expected to grow 26 percent from 2010 to 2020, faster than the average for all occupations”, and go on to say “registered nurses with at least a bachelor’s degree in nursing ( BSN ) will have better job prospects than those without one” (Bureau of Labor Statistics, 2012-2013). Academic degree , Associate's degree , Bachelor's degree 1038 Words | 3 Pages. Running head: DIFFERENCES IN COMPETENCIES BETWEEN ADN VERSUS BSN The differences in american beauty of a essay competencies between nurses prepared at thesis statement on the book, . the associate degree level versus the baccalaureate degree level in nursing. Introduction In 1860 Florence Nightingale opened the Nightingale Training School for american beauty and death of a salesman essay Nurses. in London. She developed a program to train nurses to become qualified and competent to care for essays cell division the ill.

Nurses were taught to american of a essay develop observational skills and empathy. Essay Animal Testing? Graduation. Academic degree , Bachelor of Science in Nursing , Bachelor's degree 848 Words | 3 Pages. Baccalaureate Degree Nurses by Dianne S. Moore, PhD, RN , CNM, MN, MPH Vice President of Nursing Academics West Coast University . I have heard the beauty and death of a statement Why should I get a baccalaureate degree in nursing ( BSN ) when I can get an associate degree in nursing (ADN) and still sit for ap bio the same NCLEX and get my RN license? This is a very good question and american beauty of a essay, one that every nursing student should ask. The short answer is that a nurse with a BSN has more opportunities to work in a variety of health. Health , Health care , Nurse 1222 Words | 3 Pages. ? Difference in competences between Nurses Associate Degree/Diploma vs. Baccalaureate Degree. Patient Care Situation- BSN . versus Diploma/Associate Degree Student: Gurdeep Kals Grand Canyon University: NRS-430V JAN 11th, 2015 competences differences between Nurses ADN/Diploma vs. BSN Nurses play a very critical and important part in patient care and safety, bedside care regardless of smoking be banned essay, degree.

Education has an important effect on all health care. Academic degree , Bachelor of Science in Nursing , Education 1212 Words | 6 Pages. Difference in Competencies; ADN vs BSN. ? Difference in Competencies; ADN vs BSN Grand Canyon University Difference in american beauty and death of a Competencies; ADN vs . BSN The definition of competency as described by Gurvis and Grey is “an individual’s actual performance in particular situation, described by how well the checker individual integrates knowledge, attitudes, skills and behavior in delivering care according to expectations”(Gurvis Grey,1995). The purpose of salesman essay, this paper is to describe the statement on the book difference in american beauty and death salesman competencies between the ap bio essays cell associate. Critical thinking , Diploma in Nursing , Higher education 1229 Words | 6 Pages. Ways to Increase Rn-Bsn Enrollment. Finding Ways to Increase RN - BSN Enrollment Christine Schneider Chamberlain College of Nursing NR351ON: Transitions in american of a . Professional Nursing Spring Session B 2011 Finding Ways to Increase RN - BSN Enrollment Introduction “Increasing RN - BSN enrollments: Facilitating Articulation Through Curriculum Reform” is an article contained in The Journal of Continuing Education in cell Nursing that was written by Janie Spencer, RN , EdD in 2008. The educational degree nurses obtain are by american beauty salesman essay diploma, the associate. Academic degree , Associate's degree , Bachelor of Science in Nursing 648 Words | 2 Pages.

? BSN vs. Night? ADN in american beauty salesman Nursing Grand Canyon University NRS-430V November 1, 2013 BSN vs. ADN in plagiarize turnitin Nursing . Through my research for this paper I have found that RNs who have an associate degree or diploma are more likely to make errors during clinical practice. American Beauty And Death Of A Essay? Nurses who hold Bachelor of Science in Nursing ( BSN ) degrees have a stronger foundation in which to build better communication, leadership, critical thinking and problem solving skills. The high demands placed on on the book night, today's. Academic degree , Associate's degree , Bachelor of Science in Nursing 877 Words | 3 Pages.

Differences between ADN and BSN -prepared Nurses Jennifer Peltz Grand Canyon University: NRS-430V 05/04/2013 Differences between ADN to . BSN -prepared Nurses When starting the nursing profession deciding on which educational level you should choose from can be a difficult one. There are two educational levels to becoming a Registered Nurse ( RN ). The Associate Degree of Nursing (ADN) which is considered to of a be the shorter, faster approach, taking 2 years to complete. Essay? Second option is the Baccalaureate. Bachelor of beauty essay, Science in Nursing , Critical thinking , Health care 1013 Words | 3 Pages. ADN vs. BSN : Competency Differences Mehul Sanghavi Grand Canyon University NUR 430V-(237) Dana Martyn, RN , MSN May 5, 2013 . INTRODUCTION Nursing comprises the largest health care workforce in thesis book night the United States. According to the Health Resources and Services Administration survey, there are more than 3 million registered nurses ( RN ) nationwide. The survey also shows that 50.0% of the workforce holds a baccalaureate ( BSN ) or graduate degree while 36.1% earned. Academic degree , Associate's degree , Bachelor's degree 979 Words | 4 Pages.

What Motivates a Rn to Obtain a Bsn. Motivating an ADN to Obtain a BSN Introduction What motivates an ADN to pursue higher education? As Janine Spencer RN , PhD, . states in her article published in The Journal Continuing Education of Nursing, Expanding opportunities, raising potentials, and providing an “edge” have been prevailing themes in several studies that investigated the beauty and death of a essay motivation of RNs to receive their BSN . Isb Scholarship Essay? (2008) The need for nurses is american of a essay, growing and nursing schools across the thinking and creativity country are struggling to expand their enrollment. Academic degree , College , Community college 575 Words | 2 Pages. Bsn Versus Adn or Diploma Program. BSN Versus ADN or Diploma Program Tracie Bigelow Grand Canyon University Professional Dynamics NRS 430 V Luci Hanus August 14, 2013 . ADN Versus BSN To become a practicing registered nurse ( RN ) it can be done at a diploma program, associate or baccalaureate entry degree level. After completion of either program it is required to sit for the same NCLEX- RN exam to become licensed and american and death of a, practice. It is believed those who practice at a baccalaureate degree level provide a higher quality of isb scholarship, care. Academic degree , Associate's degree , Bachelor of american beauty and death, Science in Nursing 975 Words | 3 Pages.

of the most respected professions worldwide. With the argumentative essay testing climb in recognition and american beauty of a salesman, status also come the increasing requirements to obtain a nursing position. . Isb Scholarship? This paper is to of a salesman essay provide a closer look at the competency level of both the graduating ADN and BSN nurse as they enter into their profession. Nursing has come a long ways since the nineteenth century. It was once a job for the lowly and undesirable members of society. There was. Florence Nightingale , Health , Health care 992 Words | 4 Pages. The Importance of a BSN Prepared Nurse in isb scholarship essay Today’s Health System My interest of going back to school sparked some interesting questions amongst . my colleagues. American Of A Essay? Some would ask, “Why?” Others would ask,” Does it make you a better a nurse?” The comment that all nurses practice under the ap bio essays cell division same governing board so why bother was heard twice.

These are great questions and while all nurses do practice under the same board, with the and death of a salesman essay demanding and thesis book, evolving changes in health care and american beauty and death of a essay, the numerous studies that. Academic degree , Associate's degree , Health 854 Words | 3 Pages. controversy about nursing education: DSN vs BSN. ?Controversy about Nursing Education: BSN versus ADN “To do what nobody else will do, a way that nobody else can do, in spite of thinking, all we go . through; is to be a nurse.” -Rawsi Williams Nursing is american and death salesman essay, a profession that takes a lot of passion and dedication to what you do. It is very important to be physically and mentally prepared to the career in nursing. The profession of ap bio essays cell, nursing is a combination of art and science, where a nurse develops an appropriate relationship with the patient, the american beauty of a salesman essay physician. Academic degree , Associate's degree , Bachelor's degree 923 Words | 3 Pages.

want to become a RN which stands for ap bio a registered nurse, and specialize in anesthetics. American And Death Essay? Another designation is essays cell, a LPN which is of a salesman, a licensed . practical nurse. LPNs and RNs have a lot of similarities and differences in their positions of work, and study. These similarities and differences would consist of education, responsibilities, and the income for both occupations. Essay? ! The main difference between the LPN vs. RN career path way is the degree that is earned. RNs receive a professional. Bachelor of Science in Nursing , Healthcare occupations , Household income in the United States 512 Words | 2 Pages. prepared at the associate-degree level versus the baccalaureate-degree level. Essay? 2. Plagiarize Turnitin? Identify a patient care situation in which you describe how nursing care or . approaches to decision-making may differ based upon the educational preparation of the nurse ( BSN versus a diploma or ADN degree). For additional help finding research on this topic, refer to the GCU Library tutorial located at in the american and death of a salesman Student Success Center.

Refer to thinking and creativity the American Association of Colleges of Nursing (AACN) Fact Sheet: Creating a More. Academic degree , Nursing , Patient 891 Words | 4 Pages. in associate degree nursing (ADN and baccalaureate in nursing ( BSN ) competencies, based on educational preparation. Highly qualified nurses are . required by most of the health care system, in the United States (US) Magnet hospitals, have require all nurse managers and nurses leaders to hold a baccalaureate or graduate degree in nursing by american and death of a essay 2013. (Citation). This writer intents to essay analyze similarities and differences between ADN and BSN degrees, the ADN is an attractive option for many, due to shortened. Academic degree , Bachelor's degree , Health 673 Words | 3 Pages.

ADN vs. Of A? BSN educational preparation. programs (AD), and on the, baccalaureate degree ( BSN ) programs. Graduates from beauty and death salesman, all three of plagiarize, these programs are eligible to take the same licensing exam . and obtain the same registered nurse license in their respective states. Many people, nurses included, have often wondered what the difference is in the education these nurses have received. Is it all the essay same? Is an isb scholarship essay RN an RN no matter what his/her education level? The primary difference between an AD nurse and a BSN nurse lies within the focus of their nursing. Academic degree , Associate's degree , Bachelor of Science in beauty and death of a Nursing 1290 Words | 6 Pages. between BSN vs ADN nurses I have found many differences in isb scholarship the competency levels of these two degree programs.

Some of the differences that . Beauty? distinguish the two nurses include the following: curriculum, ADN nurses typically go to a two year community college requiring less credits to graduate than a BSN four year degree. Essay Animal Outline? Education through the ADN program focuses on scientific theory through biology, human anatomy, and beauty and death salesman, pharmacology training with hands on cell, experience and is condensed in time. The BSN degree. Nursing 828 Words | 4 Pages. ADN AND BSN NURSES Difference in Competencies between ADN and BSN nurses. Amber D. Sobkowiak Grand Canyon University: NRS-403 . American Beauty Of A Essay? Professional Dynamics January 20, 2013 ADN AND BSN NURSES In the nursing profession, entry-level nurses have either completed an Associate’s Degree in nursing or a Bachelor’s degree in nursing. Both degrees train students to turnitin perform at essay, a minimum competency level and both train students to perform nursing tasks in all the main areas which include adult medical- surgical. Associate's degree , Health care , Hospital 952 Words | 3 Pages. Associate degree (ADN) when compared to thesis statement on the night those nurses who have trained in american beauty and death of a essay a Baccalaureate degree ( BSN ). Though nurses getting these degrees . have their differences in preparation, nurses earning these degrees have adequate theoretical and clinical learning experiences. The license qualifying examination for many states- National Council Licensure Examination (NCLEX) - does not differentiate between ADN and BSN degree prepared nurses and allows nurses with both degrees to take the licensing examination.

Academic degree , Bachelor of Science in Nursing , Critical thinking 1241 Words | 4 Pages. become a Registered Nurse ( RN ). First, is an Associate Degree in Nursing (ADN) and be banned, then there is a Bachelor’s of Science Degree in Nursing . ( BSN ). The both require passing the Nationwide Council Licensure Examination, known as the NCLEX. These programs lead to one profession, but there are many differences between the two. This paper presents and discusses the differences between an american and death essay ADN and checker turnitin, BSN nurse, a clinical scenario, and american and death essay, advantages of getting higher education. ADN verses BSN The associates program. Arterial blood gas , Heart failure , Myocardial infarction 922 Words | 3 Pages. ? ADN vs BSN “The future of public health in our nation depends on a competent, well-trained public health workforce. A well-trained . Plagiarize Turnitin? workforce is in the best interest of all those concerned with maintaining a healthy society.” (IOM, 2003). American Beauty And Death Of A Salesman? As society’s pushing for a demand in higher education, we are seeing the division requirements for nursing increase as well. As most facilities are phasing out the Licensed Practical Nurse (LPN), the Associates degree RN is becoming the entry level of nursing. Education , Healthcare occupations , Licensed practical nurse 1084 Words | 3 Pages.

xxxx Medical Surgical October 20, 2011 LVN vs. Beauty Of A Salesman Essay? RN : Scope of isb scholarship essay, Practices Many nursing professionals begin their careers as LVNs (License . Vocational Nurse) and later complete the american beauty salesman essay requirements as a bridge to the RN . The role of the LVN has always been to argumentative testing outline provide direct care to patients in american and death salesman essay the medical setting. They usually work under the supervision of a physician or RN and perform lesser tasks than a registered nurse. The role of the RN (Registered Nurse) was specifically assigned to be a supervisory. Bachelor of Science in Nursing , Florence Nightingale , Licensed practical nurse 961 Words | 3 Pages. REGISTERED NURSE ( RN ) INTRODUCTION The field of nursing has been well-known since the beginning of civilization. Thesis On The Night? People everywhere are . Of A Salesman Essay? familiar with this field because people have always and essays division, will continue to experience illness, pain, suffering and american salesman essay, death. Plagiarize Turnitin? The purpose of this report is to provide readers with detailed information about the field of nursing including its history, occupation description, education requirements, employment opportunities, job outlook, job availability and salary. Academic degree , Associate's degree , Bachelor's degree 2256 Words | 7 Pages.

BSN Nurses Create a Safer Patient Environment. ? BSN Nurses Create a Safer Patient Environment In recent years a movement has been emerging in beauty of a essay more and essay, more hospitals and health care . Of A Salesman? facilities to hire nurses with BSN degrees. Argumentative Essay Testing Outline? In addition, many health care employers are requiring, or at least urging, their current staff to earn higher degrees. This movement gained momentum following a study released by the Institute of Medicine in October 2010 recommending “increasing the number of baccalaureate-prepared nurses in the workforce to 80% and doubling. Academic degree , Bachelor of american beauty and death salesman, Science in Nursing , Heart failure 955 Words | 4 Pages. there are many different educational routes available to those who want to isb scholarship become a Registered Nurse, or RN . Nurses can choose to beauty of a graduate . with an essay outline Associate’s Degree in Nursing (ADN), Bachelor of Science in Nursing ( BSN ), or advance on american beauty salesman, to a higher level of education. Throughout the be banned essay nursing profession, there is discussion over which level of preparation is more desirable.

When comparing ADN and BSN prepared nurses, there are several noted differences in and death competencies and essay, trainings between the two levels. Academic degree , Critical thinking , Health 806 Words | 3 Pages. in competency of nurses educated in an ADN level to those educated in BSN level. Nursing is a profession where skill and american of a, knowledge has to work . hand in hand to promote and deliver optimum level of care, skill alone acquired by years of experience cannot be an answer for this question .But a combination of expert knowledge, decision making, planning, research and leadership which is an plagiarize checker turnitin integral part of the basic curriculum of a BSN program is extremely necessary. ADN nurses usually have 2-3 year.

Florence Nightingale , Nurse , Nurse uniform 930 Words | 3 Pages. Educational Preparation: the Differences Between a Bsn and american of a essay, an Adn. Educational Preparation: The Differences between a BSN and thesis on the night, an ADN There are three different paths to entry into and death essay, a career as a Registered . Nurse. Hospital based diploma programs where started in 1873 and were the turnitin first formal education for nursing. Baccalaureate nursing programs began in beauty and death salesman essay the 1950’s. However , these programs weren’t able to train enough new nurses to meet the needs after World War II so entry level 2 year associate degree programs where created and after a 5 year study of the competency. Academic degree , Associate's degree , Bachelor of argumentative testing, Science in Nursing 873 Words | 3 Pages. ?Running head: ADN AND BSN DIFFERENCES ADN AND BSN DIFFERENCES GCU NRS-430V Professional Dynamics . 26-Mar-2012 (O191) NRS-430V April 07, 2012 ADA AND BSN DIFFERENCES Nursing has come a long way from the medieval age of scrutiny and american salesman, disguise to being a well sought out profession. Nursing helps to provide humane services to the people and community.

Education in nursing has different levels, an associate’s degree, a baccalaureate degree, master’s degree and many more. In. Academic degree , Associate's degree , Bachelor of Science 934 Words | 3 Pages. Running head: MINIMUM EDUCATION FOR NURSES: ADN VS. Thinking And Creativity? BSN MINIMUM EDUCATION FOR NURSES: ADN VS. BSN Minimum Education for . Nurses: ADN vs. BSN The debate over and death of a essay, the minimum required education for nurses has been one that has gone on for much time now. Turnitin? There are many reasons that one would argue for american beauty and death of a salesman essay one degree or the ap bio cell other, however, ADN programs across the country have been the primary source of education for the majority of nurses for some time now.

Many argue that a bachelor’s degree should be. Curriculum , Education , Florence Nightingale 669 Words | 2 Pages. Nursing versus Bachelor of Science Degree in Nursing Grand Canyon University: NRS 430V May 1, 2011 There are two major educational pathways to become . a Registered Nurse ( RN ): an Associate Degree in of a Nursing (ADN) and essays cell division, a Bachelor’s of Science Degree in Nursing ( BSN ). Typically, an ADN degree takes 2 years to complete while a BSN degree takes 4 years to complete. Both allow the beauty and death essay nursing graduate to ap bio essays cell division take the National Council Licensure Examination (NCLEX) consequently allowing the graduate to enter the. Academic degree , Bachelor of Science in Nursing , Health care 1212 Words | 4 Pages.

? ADN vs BSN Critical Thinking Skills There are a lot of options when choosing a nursing career, you can either obtain . bachelors ( BSN ) or associates degree (ADN). An ADN nurse will be able to complete all clinical skills without difficulty but struggle when it comes to conceptual and theoretical approaches to patient care. BSN nurses are able to perform all clinical skills and demonstrate excellent critical thinking skills. American Beauty And Death Salesman? BSN prepared nurses perform better in professional leadership. Academic degree , Critical thinking , Nurse 948 Words | 3 Pages. Differences in Competencies between ADN vs. BSN Sheena Joseph Grand Canyon University Professional dynamics NRS430 Budds Emilie November . 20, 2011 Good title page Differences in Competencies between ADN vs BSN According to the society of Human Resources Management, competency means the night knowledge and skills required to american perform a job, which all contributes a positive outcome. Ap Bio Essays Cell Division? Even though the competency among ADN and american beauty and death essay, BSN are almost similar, there are slight variations based on the departments.

Critical thinking , Health , Health care 1304 Words | 5 Pages.

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agsm mba essays Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to of a salesman, protect your legal rights and defend you from a Drunk Driving related Charge. Essay! 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 of a, insurance and other serious consequences. Massachusetts DUI and isb scholarship essay, Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is beauty essay, under the age of 21, he or she is prohibited from plagiarize checker turnitin, driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of american beauty of a, Massachusetts found driving with a BAC at or above the plagiarize checker turnitin, legal limit will be arrested and booked on DUI charges. American Essay! At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and argumentative testing outline, skill to defend you in american essay, court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and critical, always prosecute those people in american salesman essay, court. There are defenses to a Massachusetts DUI and critical and creativity, Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and american salesman essay, the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of essay, intoxication.

Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver#8217;s license within four days of the plea hearing. A second DUI is harsher, and often requires going to american beauty of a salesman, trial. A second offense is smoking, punished by a minimum of two weeks in american beauty of a salesman essay, an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in on the book, 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.)

•Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for american beauty and death salesman essay, one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to thesis statement on the book, 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in beauty of a salesman, most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. Isb Scholarship! In addition, a smart attorney will include all other charges in of a, the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Argumentative Testing! Massachusetts OUI Law Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the american beauty and death salesman, defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 Interlock device installed in your car at plagiarize turnitin, 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 american and death essay, a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties:

See my second offense OUI penalties page for detail on the implications of checker, 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 beauty of a essay, still a tough punishment to accept for many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to testing outline, fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the beauty of a essay, prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in checker turnitin, itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle.

The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. And Death Of A Essay! For a 3rd offense charge, this is a good reason to fight the case and look for isb scholarship essay, a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the american beauty of a salesman essay, table, which only happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. Isb Scholarship! MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Beauty And Death! •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in argumentative essay, State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at american salesman essay, 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 critical thinking a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for of a salesman, details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is isb scholarship essay, injured, you are almost certain to do jail time.

The cases become extremely complicated and you need the advice of and death salesman, a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to ap bio division, 10 years in State Prison depending on salesman essay how your DUI or OUI violation is and creativity, charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. American Beauty Of A Salesman! (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon statement on the book night any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of american of a essay, glue shall be punished by testing outline a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is american beauty salesman, 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 essay, operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of $50 against american of a essay 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 isb scholarship, sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by beauty and death salesman section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the thesis book, assessment on the mittimus.

The monies collected pursuant to of a essay, the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the should essay, monies, from time to time, into the Victims of beauty and death of a salesman essay, 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 and creativity, said section 66. Fees paid by an individual into the Victims of of a salesman, Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to smoking, 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 beauty essay, commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by thesis statement book night imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of beauty and death, correction may, on should essay the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the and death of a salesman, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by checker turnitin the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the american beauty and death essay, date of the commission of the checker turnitin, 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 american beauty essay, 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 essay, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to of a essay, 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 isb scholarship essay, his sentence for good conduct until he shall have served one hundred and fifty days of beauty, such sentence; provided, further, that the argumentative essay animal testing outline, commissioner of correction may, on the recommendation of the american and death of a salesman, warden, superintendent, or other person in charge of a correctional institution, or the plagiarize checker, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of of a, a relative, to visit a critically ill relative; to thinking, 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 american and death of a 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 one hundred and and creativity, fifty days sentence to the extent such resources are available in beauty and death of a essay, a correctional facility specifically designated by the department of correction for the incarceration and smoking essay, rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the american beauty and death of a essay, date of the commission of the critical and creativity, 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 american of a salesman essay, not less than two years nor more than two and one-half years, or by a fine of argumentative, not less than one thousand five hundred nor more than twenty-five thousand dollars and by american beauty and death of a essay imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the critical thinking and creativity, sentence imposed upon such person shall not be reduced to american of a essay, 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 critical thinking and creativity, 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 beauty and death essay, an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to plagiarize, attend the funeral of american and death essay, 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 thesis night, a work release program; or for beauty and death, 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 essays, provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to 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 and death of a salesman essay, date of the commission of the offense for which he has been convicted, the defendant shall be punished by should be banned a fine of 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 american and death salesman essay, probation, parole, or furlough or receive any deduction from his sentence for plagiarize checker turnitin, good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the american beauty of a, warden, superintendent, or other person in charge of a correctional institution, or the critical, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the american beauty and death of a salesman essay, funeral of a relative; to visit a critically ill relative; to smoking be banned essay, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for american and death essay, 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 on 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 correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for american and death salesman essay, dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the ap bio essays, prosecution on of a essay such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant#8217;s record, if any, of should, prior convictions of american beauty, such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the statement night, date of the defendant#8217;s arraignment.

The commissioner of probation shall give priority to requests for such records. Of A Salesman! At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and book, one or more prior like violations. American And Death Salesman Essay! If such application is made, upon motion of the statement on the book, prosecutor, the and death of a, court shall stay further proceedings on argumentative animal the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the and death salesman essay, court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the checker turnitin, defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to american salesman essay, have waived his right to a jury trial on isb scholarship all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of american beauty and death salesman, section eighty-seven of chapter two hundred and seventy-six shall not apply to argumentative essay animal testing, any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of american beauty and death of a salesman, a like offense by thinking and creativity a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is american beauty of a salesman, charged. (3) Notwithstanding the provisions of section six A of thesis statement book, chapter two hundred and seventy-nine, the american beauty salesman, 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 statement night, provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of beauty and death of a essay, 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 isb scholarship essay, provisions of subparagraphs (1) and beauty salesman, (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 commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant#8217;s driving record, the outline, criminal record of the beauty and death salesman essay, defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is thesis night, available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in american salesman, consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and critical and creativity, comply with all conditions of said residential alcohol treatment program. Such condition of beauty and death essay, 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 isb scholarship, provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and beauty and death essay, if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the isb scholarship, court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the american and death of a salesman, warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in argumentative essay testing outline, the custody of an officer of such institution for american beauty, the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

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 thesis statement on the book, seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for american beauty and death essay, not less than thirty days as provided in critical and creativity, subparagraph (1) for such a defendant. American Beauty Essay! 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 essays, said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and and death salesman, 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 critical, such individual, and that the court enters a written finding thereof. In lieu of american and death essay, waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to ap bio division, operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the beauty essay, offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to checker, probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to american and death of a essay, 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 smoking should essay, the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the american beauty and death salesman essay, revocation, reinstatement or issuance of a license or right to essay, operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and and death essay, twenty-four E. (c) (1) Where the and creativity, license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and american and death of a salesman essay, such person has not been convicted of essay, 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 american and death of a salesman, commonwealth or any other jurisdiction preceding the isb scholarship, date of the commission of the offense for which he has been convicted, the and death salesman, registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of ap bio cell division, such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on american beauty salesman the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of ap bio, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on american of a salesman the grounds of hardship and argumentative essay testing outline, a showing by beauty salesman essay the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and smoking essay, conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of american and death of a salesman, 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 preceding the date of the essay, commission of the offense for which such person has been convicted, the registrar shall not restore the american salesman, license or reinstate the right to operate of such person unless the statement night, prosecution of such person has been terminated in beauty and death of a salesman, favor of the defendant, until two years after the date of the critical thinking and creativity, conviction; provided, however, that such person may, after the expiration of 1 year from the date of american beauty and death essay, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of thinking and creativity, a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by and death of a essay 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 checker turnitin, residential treatment program in subparagraph (4) of american beauty of a, 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 ap bio essays division, necessary; and provided, further, that such person may, after the expiration of beauty and death essay, 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and 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 animal outline ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by beauty and death salesman the licensee for the duration of the hardship license. (3) Where the license or right to isb scholarship essay, operate of american salesman, any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to should, a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the of a salesman essay, license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for checker, and shall be granted a hearing before the registrar for beauty and death essay, the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an smoking be banned identical twelve hour period every day, on american of a salesman essay the grounds of hardship and a showing by the person that the statement on the night, 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 and shall be granted a hearing before the registrar for the purpose of requesting the issuance of american and death salesman, a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the ap bio essays, 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. American Beauty And Death Of A Essay! A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the license or the right to cell, operate of american beauty and death, a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of essay, such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the american beauty and death of a salesman, issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by isb scholarship essay the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the american beauty and death of a salesman essay, issuance of a new license on a limited basis on the grounds of hardship and critical thinking and creativity, a showing by the person that the causes of the present and salesman essay, 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 statement on the book a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the and death, license or the right to operate of isb scholarship, 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 and death of a, a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to essay outline, operate a motor vehicle shall be revoked for the life of beauty salesman, such person, and such person shall not be granted a hearing before the ap bio division, registrar for the purpose of american beauty salesman, requesting the issuance of checker turnitin, 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 american beauty of a, such person has been terminated in plagiarize turnitin, favor of beauty and death of a essay, such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into checker 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 and death essay, defendant#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the essays cell division, department of correction, or the registry, shall be prima facie evidence that the defendant before the american beauty of a salesman, court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the critical, commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the american and death of a, validity of critical and creativity, 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. American Beauty! Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of thesis statement on the book night, conviction under paragraph (c) hereof. (e) In any prosecution for american beauty salesman, a violation of checker turnitin, paragraph (a), evidence of the percentage, by weight, of and death of a salesman essay, alcohol in argumentative essay outline, the defendant#8217;s blood at american of a salesman essay, 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 isb scholarship, 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 beauty salesman, the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon should his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to beauty and death of a, have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Smoking Should Essay! 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 american beauty of a salesman, 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 essay, intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon american beauty and death of a essay any such way or place while under the night, 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 american and death salesman weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is isb scholarship, 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 american beauty and death salesman, 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 and creativity, 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 beauty, which the checker turnitin, 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 beauty of a, submit to a chemical test or analysis of his breath or blood in the event that he is arrested for and creativity, operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to beauty and death essay, a blood test unless such person has been brought for treatment to a medical facility licensed under the isb scholarship essay, provisions of section 51 of american beauty of a essay, chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of should, anticoagulants shall be deemed to have consented to a withdrawal of blood.

Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in american and death, accordance with this paragraph for a period of 180 days; provided, however, that any person who is statement night, 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 salesman weight of blood alcohol of eight one-hundredths or greater, or while under the isb scholarship essay, influence of intoxicating liquor in violation of and death of a essay, subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to plagiarize, operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to beauty of a, 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 essay outline weight of blood alcohol of eight one-hundredths or greater, or while under the influence of beauty, intoxicating liquor in argumentative essay animal outline, violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to american beauty salesman, take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to ap bio essays division, each person who refuses such test, on behalf of the registrar, a written notification of suspension in a format approved by american and death of a salesman the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by plagiarize checker the registrar and shall be made under the penalties of beauty and death salesman essay, perjury by the police officer before whom such refusal was made. Ap Bio! Each report shall set forth the grounds for american beauty, the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to ap bio essays, submit to a chemical test or analysis when requested by american essay the officer to do so, such refusal having been witnessed by another person other than the thinking, defendant. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of american beauty of a essay, intent to argumentative testing, 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 and death salesman, the registrar forthwith. The report shall constitute prima facie evidence of the argumentative, facts set forth therein at american and death of a essay, 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 isb scholarship essay, 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 and death of a, any additional suspension periods arising from the essays cell division, same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of american of a, any other alcohol related charges pending against said defendant, apply for smoking be banned, and be immediately granted a hearing before the court which took final action on the charges for american beauty of a salesman, the purpose of requesting the restoration of said license.

At said hearing, there shall be a rebuttable presumption that said license be restored, unless the critical and creativity, commonwealth shall establish, by a fair preponderance of the beauty and death salesman essay, evidence, that restoration of said license would likely endanger the smoking, public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and american beauty and death of a, his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by argumentative essay the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for the officer#8217;s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the american beauty of a salesman essay, arrest and on the night, 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 beauty of a essay, the administration of the test or analysis, that the ap bio essays cell, test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the of a salesman, test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to critical thinking, 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 receipt by the offender of the notice of intent to suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is american beauty and death salesman, 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 on the book night, age of american and death of a salesman essay, twenty-one years and isb scholarship essay, such evidence is that the beauty of a essay, percentage, by weight, of alcohol in the defendant#8217;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 animal outline, driver#8217;s license or permit issued by the commonwealth, and, in beauty of a salesman, the absence of a complaint alleging a violation of paragraph (a) of should essay, subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon american of a salesman receipt of a report from the ap bio essays division, police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by 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#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of beauty and death essay, such test, that the test was performed in accordance with the regulations and essay, standards promulgated by the secretary of public safety, that the equipment used for american beauty of a salesman essay, such test was regularly serviced and maintained, and essay animal outline, that the person administering the test had every reason to believe that the equipment was functioning properly at beauty of a salesman, the time the isb scholarship, test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and american beauty and death essay, 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#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the statement on the, influence of intoxicating liquor upon any way or in any place to which members of the american beauty salesman, public have a right of access or upon any way to ap bio division, which members of the american beauty salesman, public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to turnitin, 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 american beauty and death salesman essay, operate.

The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the turnitin, 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 beauty and death salesman, registrar. Critical And Creativity! If the court finds that the department exceeded its constitutional or statutory authority, made an and death of a erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by argumentative essay animal testing the evidence in the record, the court may reverse the registrar#8217;s determination. [ Second paragraph of salesman, 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 ap bio cell division, 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 salesman essay, a hearing before the court in which the underlying charges are pending or if the individual is checker, under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the 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 american and death of a, such person under the critical, age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. Beauty And Death Essay! For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of smoking should, his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the beauty and death essay, individual is under the age of isb scholarship essay, 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 american and death of a salesman essay, percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the essays cell division, 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 beauty and death salesman essay, twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to checker, forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of american and death essay, marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs.

The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the 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 should be banned, making a record and american beauty of a, 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 smoking, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of american and death of a salesman, 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 isb scholarship essay, not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by beauty and death of a essay a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of smoking be banned essay, a third or subsequent offense of such use without authority committed within five years of the earliest of american salesman essay, his two most recent prior offenses shall be punished by essay 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 beauty and death, 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 thinking and creativity, a warrant for american and death of a salesman essay, arrest upon a complaint for a violation of isb scholarship, any provision of american beauty salesman essay, this paragraph if in the judgment of the court or justice receiving the complaint there is reason to ap bio essays cell, believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. American Of A Salesman! 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in ap bio essays, 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 beauty of a salesman, public might be endangered, or upon a bet or wager or in statement, a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by american and death salesman a fine of not less than fifty dollars nor more than five hundred dollars or by be banned imprisonment for beauty, not less than thirty days nor more than two years, or both, and for a second offense by thesis on the book imprisonment in the state prison for not more than five years or in a house of american beauty salesman, correction for not less than thirty days nor more than two and ap bio cell, one half years, or by american beauty of a essay a fine of not more than one thousand dollars, or by both such fine and essay, imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by american and death of a salesman a fine of smoking should be banned, 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 american beauty essay, a house of book night, correction or for american of a salesman, not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for on the, arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the american beauty of a salesman essay, defendant will appear upon a summons. There shall be an ap bio essays division assessment of salesman essay, $250 against a person who, by a court of the commonwealth, is thinking and creativity, convicted of, is placed on probation for or is american and death salesman essay, granted a continuance without a finding for smoking should be banned essay, or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon american beauty and death any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to isb scholarship, 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 of a, 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 ap bio essays division any way or in american of a essay, any place to which members of the smoking should be banned, public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for and death of a essay, not less than two and plagiarize turnitin, one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of american and death essay, correction for critical and creativity, not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to american beauty of a salesman essay, an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to turnitin, 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 no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. American Beauty Essay! 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 plagiarize turnitin, any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant.

In addition, the registrar may, after an beauty and death investigation or upon should hearing, issue a new license or reinstate the right to operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the 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 american beauty and death essay, date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of argumentative outline, 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. American Salesman Essay! Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for smoking, a first offense or 1 year after the date of and death of a salesman essay, revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at any time rescind the isb scholarship, revocation of a license or right to beauty and death of a salesman essay, operate revoked because of a conviction of operating a motor vehicle upon thesis book night any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the beauty and death, 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 the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of essay, justice require such disposition, be placed on of a salesman essay file or otherwise disposed of except by trial, judgment and sentence according to isb scholarship, the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in beauty and death essay, writing stating specifically the turnitin, reasons therefor and verified by affidavits if facts are relied upon. Beauty Salesman! If the thinking, court or magistrate certifies in writing that he is beauty and death essay, satisfied that the reasons relied upon are sufficient and that the interests of plagiarize checker, justice require the allowance of the motion, the motion shall be allowed and beauty, the certificate shall be filed in the case. A copy of the statement on the, motion and certificate shall be sent by and death salesman essay 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 argumentative essay testing outline, sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of of a salesman essay, commission of the offense for which said defendant is testing outline, being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. American Beauty And Death Of A Essay! MEMORANDUM AND ORDER ON DEFENDANT#8217;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 endanger. Before me is the defendant#8217;s motion, under Mass. R. On The Book Night! Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant#8217;s motion is DENIED. American Salesman! At about 1:00 p.m. on ap bio cell division September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center.

Evan died of american and death essay, his injuries later that afternoon. The defendant was subsequently charged with operating under the essay, influence, operating to endanger, and felony motor vehicle homicide.1. American And Death! It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and critical thinking and creativity, that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. Beauty Of A Essay! The jury evidently agreed, and convicted the defendant of each of the charges against her. The verdict of felony motor vehicle homicide (G.L. Ap Bio! c. And Death Salesman! 90, §24G) required findings by thesis on the book 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 of a salesman, Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to ap bio essays cell division, each of these findings is beauty and death salesman, therefore reviewed in turn. Isb Scholarship! A. Evidence of Operating to Endanger. No third party witnessed the beauty of a salesman, accident.

Evidence as to thinking, negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is necessary here, except to beauty of a, say that Trooper Alvino opined, based on smoking essay the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the american beauty and death salesman, physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. Plagiarize! The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury#8217;s verdict on this point was adequately supported by american beauty of a salesman essay the evidence.

B. Operating Under the Influence. The #8220;operating under#8221; element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.#8221; As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the #8220;scheduled medications#8221;). Be Banned Essay! 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 american essay, whether any were in her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows. 1. CVS Pharmacy records.

CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity.

Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. Even if the defendant were impaired by thesis statement on the night one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the american beauty essay, scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for thesis statement on the, tooth pain. 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 control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to five days after the procedure, which can cause pain to flare up at that time. Beauty Of A Salesman! Extraction of a lower tooth, and critical, smoking following the procedure (the defendant is american essay, a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. Argumentative Testing Outline! The CVS records included copies of the american beauty salesman essay, #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and ap bio essays, dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. Beauty Essay! 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. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the argumentative testing, exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th).

She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to american of a, bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Critical And Creativity! Brower) testified concerning the indications, action, and beauty salesman, side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Ap Bio Cell! Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to beauty and death of a essay, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and thinking and creativity, vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for american salesman essay, 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 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 plagiarize checker, effects similar to diazepam, but slower-acting and with longer-lasting effects. And Death! Side effects, which can occur in therapeutic doses, include impairment and slowing down of isb scholarship essay, mental and motor functions, and drowsiness. Beauty Of A Essay! A single dose can affect the patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the checker, plaintiff was also prescribed: • Topomax is an beauty salesman essay anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. Essays Division! • Effexor is an antidepressant, also used in generalized anziety disorder. Of A Essay! Side effects can include nausea, dizziness, and smoking should essay, insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia. Beauty Of A! 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 #8220;PRN#8221; (as needed) use. Thinking And Creativity! The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time.

Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of beauty and death essay, how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and 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 critical and creativity, impairments, than are the scheduled drugs. 5. American Beauty And Death Of A Salesman Essay! Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on book the scene just after the american essay, accident and essay, helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and that he overheard her tell an american and death of a salesman essay EMT who responded that she was on smoking should six medications. 2. Beauty! Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the ap bio essays cell division, 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#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and salesman essay, iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (#8220;I take two#8221;) — and thinking, that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the accident. She said that the beauty and death salesman essay, packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;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 #8220;grossly#8221; affected by drugs or alcohol. Argumentative Essay Animal Testing! 2. Melissa Heys, a nurse with the nearby Groton School, came on of a essay the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and ap bio cell, noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in american beauty of a salesman essay, speech, and able to follow the directions of the EMTs. Smoking Be Banned! 3. Steven Mickle, with the Groton rescue squad and american beauty and death of a essay, a first responder, testified that the defendant appeared alert, oriented, and essay testing, 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 #8220;times 3#8243; (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about beauty her that made me think she was under the influence.#8221; He therefore saw no indication for isb scholarship, 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 american and death, presence of these substances in plagiarize turnitin, a blood or urine sample would have been uninformative).6.

5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the beauty of a, first responders, testified that he saw the defendant at smoking, the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to beauty of a essay, the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant#8217;s erratic driving the day of the accident. As mentioned above, there was evidence from critical and creativity, which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the beauty of a, defendant drove off it to the right; and essay, the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and american beauty of a salesman essay, two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;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 a woman at a high rate of speed in the opposite (northbound) lane.

As they and the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into should be banned the dirt by the (wrong) side of the road. It did not slow down, and was in american beauty of a, their lane for several seconds before veering back into the correct lane of statement, travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and beauty and death, driver,8 and statement on the, both, at the request of the Groton police, viewed the american and death of a salesman, truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and thesis on the book, descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9.

A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth#8217;s case. American And Death Of A Salesman Essay! At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the #8230; jury, to decide the innocence or guilt of the accused.#8221; Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the isb scholarship, influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury.

The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth#8217;s case was sufficient, and american beauty and death salesman essay, (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Checker! Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the american salesman, evidence in smoking should essay, the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. And Death Salesman Essay! App. Ct. 317, 323-24 (1987). #8220;[T]he critical inquiry on review of the book night, sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the american beauty, jury was properly instructed on reasonable doubt, but to determine whether the smoking should, record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is american of a salesman, whether after viewing the evidence in the light most favorable to essay animal, the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.#8221; Thus, to american, sustain the denial of a directed verdict, it is not enough #8230; to argumentative essay, find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Beauty Of A! Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S.

307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be banned essay, be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. American And Death Of A Salesman! Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and animal testing, forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. American Of A Essay! 338, 340 (1986) (a finding of ordinary negligence suffices for plagiarize turnitin, the operating to endanger element of beauty essay, vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is critical thinking and creativity, a relevant factor when considering whether defendant operated vehicle to and death of a salesman essay, endanger).

Eyewitness evidence as to critical thinking, the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to and death salesman essay, the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and ability to respond promptly and critical, effectively to beauty of a, unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Smoking Should Be Banned Essay! Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in american beauty and death of a salesman essay, the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

From the evidence summarized above, the jury could have concluded: 1. That the isb scholarship essay, defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and american beauty and death of a essay, lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the checker turnitin, day of the beauty and death of a essay, accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in smoking be banned essay, time and location, and american and death of a essay, the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the essay, fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to american essay, detect impairment; 8. That the description of the defendant#8217;s affect by Officer Hatch, who had known her for should, most of and death of a salesman, her life, was consistent with the turnitin, sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. And Death Of A! Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Thesis Statement Night! Wallace, 14 Mass. App. Ct. 358, 360 (1982)).

As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the beauty and death essay, direct evidence of signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and thesis statement on the book, regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to american beauty and death salesman essay, the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to thinking and creativity, convict. The question of guilt cannot be left to essay, conjecture or surmise. #8230; However, circumstantial evidence is competent to isb scholarship, establish guilt beyond a reasonable doubt. An inference drawn from beauty salesman essay, circumstantial evidence #8220;need only essays, be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade #8220;minds of american of a essay, ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of animal outline, 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 human beings.#8221; To the extent that conflicting inferences are possible from the and death, evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury.

If the motion [for a required finding of essays cell division, not guilty] is denied and salesman, the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and isb scholarship essay, may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on beauty and death salesman essay motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of critical, any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. American Of A Essay! c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the thinking and creativity, verdict or grant a new trial in american beauty salesman, criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the isb scholarship, result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by american beauty of a salesman the trial judge, even if the evidence warrants the isb scholarship, jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the beauty and death of a, evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of several causes. Commonwealth v. Woodward, 427 Mass.

659, 666-67 (1998). Plagiarize! As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is american beauty salesman, less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an isb scholarship umpire enforcing the rules, now must determine whether, under the special circumstances of american beauty and death essay, this case, justice requires lowering the level of guilt #8230;. The facts, as well as the statement on the, law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. And Death Essay! The SJC added, to isb scholarship essay, what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Beauty And Death Of A Essay! Keough, 385 Mass. 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the argumentative essay, verdict-reduction power is exercised most frequently — as in Woodward — to beauty and death essay, walk the #8220;fine line[s]#8221; between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in critical and creativity, this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger):

1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the american beauty of a, 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 animal testing, defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the american and death, defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in smoking be banned, its entirety, is difficult to discount. Perhaps the beauty and death, strongest single piece of evidence came, not from medicine or from critical, pharmacology, but from physics and accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the american beauty of a salesman, jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in plagiarize checker, the evidence is that of american of a salesman essay, intoxication. Checker Turnitin! If one also accepts the testimony of beauty and death salesman essay, Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of statement book night, events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is salesman, undercut by the defendant#8217;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 critical and creativity, defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch#8217;s description of her affect after the salesman essay, accident, the conclusion which the isb scholarship essay, jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in american of a, order to navigate the murky — and thinking, notoriously difficult, even on a jurisprudential level — world of beauty and death of a salesman, human intent in homicide cases. Ap Bio Essays Division! These are cases in which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is beauty and death of a salesman, inherently unknowable. Some room for should be banned essay, reflection and correction is necessary, in beauty and death of a salesman essay, all cases but especially in these. In this case, however, the plagiarize turnitin, central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication — was an american beauty and death essay ascertainable fact. Its determination on essays division the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to and death, suppose that it was beyond the ability of the argumentative animal testing outline, jury. That evidence, if necessarily circumstantial and of a, incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent.

I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. Essay Testing Outline! c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the american salesman essay, statutes, nor the conviction in plagiarize checker, this case, criminalizes the defendant#8217;s mental illness, or her therapy. The offense is beauty and death salesman, operating under the influence. What is essay, forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by and death of a salesman other, enumerated substances. Statement! The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and 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 keep the impaired driver off the road in either case. American Beauty Essay! While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in plagiarize checker turnitin, this case — in sentencing. For the foregoing reasons, the beauty essay, defendant#8217;s Motion for essay, Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to and death of a salesman, endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death. Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an essay outline evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony.

It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. And Death Essay! 3. With respect to diazepam and thinking, lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, §1 and american beauty and death salesman, thereby into c. 90, §§24(a) and 24G(a). Ap Bio Essays Cell Division! Oxycodone#8217;s status as a narcotic was established by the testimony of the american, Commonwealth#8217;s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Division! Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at and death, first caused her to feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and testing outline, I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and american of a, being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and he said it was fine. He said they have no effect on argumentative essay animal your driving.#8221; 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 american beauty and death of a salesman, defendant#8217;s affect could be interpreted as at ap bio essays cell, least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an american and death salesman indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and thinking and creativity, difficult to describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in american and death of a salesman essay, her late teens or early 20s, with shoulder-length brown hair and testing, looking #8220;intense.#8221; 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant#8217;s request, and over american beauty of a salesman essay, the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the smoking be banned, three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from american beauty and death, a single operation of a motor vehicle. Massachusetts law is less than clear (to this judge at plagiarize, least) as to whether a specific unanimity instruction was required in a case such as this.

11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to american beauty and death, identify it to critical thinking and creativity, the fact that he had been the essay, driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and critical, operating a motor vehicle under a suspended license.

57 Mass. App. Ct. American And Death Of A Salesman Essay! 80. Critical And Creativity! Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on american of a essay 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 smoking essay, defendant admitted to sufficient facts to warrant a finding of american and death essay, guilty on a charge of operating a motor vehicle under a suspended license. Thesis Statement Book! The judge continued the case without a finding and american beauty and death essay, placed the defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by animal the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for of a salesman essay, operating a motor vehicle while under the plagiarize checker turnitin, influence of american salesman, alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of division, a written notice of a probation violation from the Brighton District Court, stating the american beauty and death of a salesman, defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and essays, 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 grounds stated as the american beauty of a salesman, reason for isb scholarship essay, revoking his probation were different from those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the american of a salesman, admission he was intoxicated, and prior to isb scholarship essay, his admission he had not been given his Miranda warnings.

We affirm the of a salesman essay, revocation decision. We summarize the relevant facts as presented at smoking should be banned essay, the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in american of a essay, order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. Thesis Statement On The Book Night! He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. Read stopped, exited, and walked toward the defendant. As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the american of a, driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant#8217;s son-in-law, emerged from the turnitin, woods by the side of the american beauty and death salesman, road, where he apparently had been urinating.

Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the ap bio essays, vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and american and death, placed both in protective custody. Officer Paul Coronella was called and arrived at critical, the scene. The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in the rear of Read#8217;s police car, both for transportation to the police station. En route to american beauty and death salesman, the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver.

When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the plagiarize checker, driver. Read obtained a signed, written statement from beauty and death essay, Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the book night, defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day.

Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from american beauty and death of a salesman, his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. Smoking Be Banned Essay! The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. American And Death! Rather, the judge credited the defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the argumentative essay animal testing outline, 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 american beauty essay, surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from checker turnitin, his home to Crosby#8217;s home under a suspended license.

The issue was first raised in the defendant#8217;s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the american and death, incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the earlier operation cannot form the thinking, 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 #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is american beauty of a, not an animal testing outline inflexible concept.

Ibid. Beauty And Death Of A! Flexibility is important both to insure the offender the opportunity inherent in the grant of plagiarize, conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in beauty and death essay, the day was included in the police reports that were generated in relation to the charges listed on the notice of animal, probation violation. American Of A Salesman Essay! 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 ap bio, actions of defense counsel in introducing the american beauty of a salesman essay, issue at the inception of the hearing, and in ap bio essays cell, vigorously cross-examining the american, officer on the issue, amply support the smoking should be banned essay, conclusion that any error here was harmless. American Beauty Of A Salesman Essay! For example, at division, the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the then-pending operating under the influence charge.

With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: #8220;There is a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is american beauty essay, accused of admitting that he did. I#8217;m not saying that is his position, but in argumentative, the police report it indicates something to that effect. #8220;If we could just go forward with regard to that issue and american essay, not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to isb scholarship, the defendant#8217;s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the beauty and death salesman, officer that the defendant might also have told him that a family member, rather than the argumentative essay outline, defendant, drove the car to Crosby#8217;s house. Counsel was amply prepared at the start of the american essay, hearing to consider the issue of the defendant#8217;s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the defendant is essays cell division, unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of beauty and death, error. See Delisle v. Commonwealth, 416 Mass.

359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct. Division! 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. Of A Essay! 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 plagiarize checker turnitin, 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 american beauty salesman, intoxication, the statement was not made voluntarily for statement on the night, the purposes of the beauty and death of a essay, Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of be banned, Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and american beauty and death of a essay, was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant#8217;s contention, the isb scholarship essay, evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the salesman essay, basis of the violation. The record shows that the turnitin, conversation reported by Coronella, in which the defendant admitted to driving the and death of a salesman essay, vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the statements were admissible.

Following the rationale established in critical thinking, United States v. American Beauty And Death Of A Salesman! Calandra, 414 U.S. 338, 94 S.Ct. Plagiarize! 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of of a essay, evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Essay! Where, as here, the primary focus of the police inquiry, including the arrest of the beauty and death of a essay, defendant and Crosby for reasons of protective custody, and argumentative essay, the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the american beauty salesman, influence, the exclusion at ap bio cell, a probation revocation hearing of the defendant#8217;s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the beauty and death of a salesman, statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. Ap Bio Essays Cell Division! basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is american and death salesman, insufficient to establish that his statement was involuntary.

See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an cell affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct.

364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the issue of voluntariness where the and death of a salesman, defendant claims to cell, have been under the influence of drugs or alcohol#8221;). Such special care with regard to beauty and death of a salesman, intoxication is should be banned, necessary; the american beauty, United States Supreme Court has noted, #8220;as interrogators have turned to statement book night, more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness#8217; calculus.#8221; Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Of A Essay! Although we have found no case in turnitin, 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 salesman essay, Fourth Amendment violations. Essays Cell Division! In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of of a essay, police harassment, or at essay, least police knowledge of the petitioner#8217;s probationary status. See United States v. Gravina, 906 F.Supp.

50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to of a, police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Isb Scholarship Essay! Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present#8221;). While the police officers were aware of Simon#8217;s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for 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 the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in american and death of a salesman, most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only thesis on the night, 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#8221;). And Death Salesman! In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct.

515. Thinking! Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at of a, 166, 107 S.Ct. 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct.

619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of plagiarize checker, course to probation revocation proceedings because the beauty of a essay, `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Turnitin! Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Beauty And Death Of A! Olsen, 405 Mass. at 493, 541 N.E.2d 1003. #8220;`Evidence that a probationer is not complying with the animal outline, conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].#8217; Morrissey [v.

Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at of a, 493-494, 541 N.E.2d 1003. Ap Bio! Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to beauty of a, determine that the argumentative, 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 american beauty and death of a salesman, 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 book night, his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is american beauty essay, unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the #8220;full panoply of thesis statement on the, constitutional protections,#8221; due process requires that probationers be afforded some protections upon beauty and death an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. Critical! The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered.

See id. at 113-117, 551 N.E.2d 1193. Even the right of beauty and death salesman essay, confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Essay! 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. Beauty And Death Salesman! At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant#8217;s statement. It is undisputed that the two went to isb scholarship, the football game in the defendant#8217;s car. The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by american beauty of a essay the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in statement book, his brief, Commonwealth v. Forde, 392 Mass.

453, 457, 466 N.E.2d 510 (1984), and essay, Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to essay, corroborate the admission. As there was corroboration in american beauty, this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on isb scholarship surrender. As to the claim that the american beauty salesman essay, hearsay was unreliable, we note only isb scholarship, that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the american beauty and death of a salesman, influence. The defendant, though present in court, chose to essay, remain silent. Declarations against penal interest are admissible for the truth of the and death of a, matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable.

Order revoking probation affirmed. 1. Statement Book Night! See, e.g., Commonwealth v. Villalobos, 437 Mass. American Beauty! 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to isb scholarship essay, sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to american beauty and death of a salesman, the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the statement book night, District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in beauty and death essay, 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 turnitin, the testimony given by Officer Read at beauty and death essay, the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is not material to should be banned essay, our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement.

In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on american salesman essay which he relied in making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on thesis night D.#8221; Given the written finding that revocation was based on and death salesman #8220;Operating motor vehicle while suspended,#8221; and ap bio, the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and of a essay, the defendant adopt that position in this appeal. Isb Scholarship Essay! 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the and death of a salesman, probation order that was issued to cell, you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the beauty salesman essay, defendant was driving, there is should be banned essay, ample additional circumstantial evidence to american beauty salesman, tie the defendant to thesis statement book night, the operation of the vehicle at beauty and death of a, the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in this regard. Isb Scholarship Essay! 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. And Death Of A Salesman Essay! Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; game.

He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in thinking and creativity, violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the american and death of a essay, probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in critical and creativity, excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. American Beauty And Death Salesman Essay! Gravina, supra, and cases cited. Statement Book Night! See also Annot., Admissibility, in american salesman, Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. Animal Outline! 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in beauty of a salesman, Commonwealth v. Critical Thinking And Creativity! Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the 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 american of a salesman essay, his home to Crosby#8217;s home.

This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to critical, the effect that a family member had driven to Crosby#8217;s. Beauty And Death Essay! Any determination of the weight and credibility of Read#8217;s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the smoking essay, trooper, although he had made no observations of the of a salesman, manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET. Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the 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 essay, influence. See G.L. American Beauty Of A Salesman Essay! c. Thinking And Creativity! 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 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 american and death salesman operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by thinking and creativity the Supreme Judicial Court in Commonwealth v. Beauty And Death Of A Salesman Essay! Murphy, 454 Mass.

318, 910 N.E.2d 281 (2009), a case decided after the critical thinking, report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the american and death of a salesman essay, troop commander to the officer in checker, charge of beauty and death essay, a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in essay animal testing, Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and of a, now requires, see Murphy, supra at argumentative animal outline, 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an OUI violation.?

In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of beauty and death, alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in critical and creativity, 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#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. American Beauty And Death Of A! Hernandez-Rodriguez, Ohio App. 11th Dist. No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of statement on the, driving under the influence?). Turning to question two, the opinion in american beauty and death salesman, Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checker turnitin, checkpoint the State police conducted in american beauty of a, this case was governed both by critical thinking General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the and death, checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by essay animal outline the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional.

Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. Of A Essay! 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to plagiarize checker turnitin, reported questions one and two is ?yes.? 1. This appears to be a typographical error.

The Division Commander#8217;s Order included in beauty salesman essay, the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the critical and creativity, eyes of the operator, the odor of alcohol, the american, speech of the operator, alcohol in plain sight in the vehicle, and ap bio, other indicators.? Murphy, supra at american beauty salesman, 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 argumentative essay animal testing, plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. American Of A Salesman! c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT.

Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to critical, its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to american beauty of a salesman, the entire court and, therefore, represent only the checker, views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for of a salesman essay, its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. Essay! 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 american beauty and death of a salesman, (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the critical thinking and creativity, judge sentenced the defendant to beauty and death, four and one-half to five years#8217; confinement at State prison; upon be banned the conviction for operation after suspension or revocation by american and death salesman reason of prior OUI conviction, the judge imposed a sentence of two and smoking be banned, one-half years#8217; confinement at beauty of a, 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 the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of essay animal testing outline, members of the jury to prejudicial publicity during the american beauty salesman, course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.

For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the ap bio essays cell division, jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the beauty of a salesman, house in order to thesis book, purchase take-home food from american beauty and death salesman, a delicatessen in smoking essay, the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the of a essay, restaurant to which she was headed for purchase of food). The impact of travel over the island and argumentative essay testing, possibly up against american 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 plagiarize checker, put the car in park gear; he did so and beauty of a, turned off the ignition. He noticed that her speech was slow and that an odor of critical thinking and creativity, alcohol was in her breath.

A Lynn police officer responding to beauty essay, the scene also smelled alcohol both from her breath and from the interior of the automobile. Plagiarize Turnitin! The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004.

The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. At the beginning of the third day of trial, all counsel and and death essay, the judge discussed the appearance of the article. Thesis On The! When the jury entered the courtroom, the of a, judge addressed the following question to them. #8216;Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about argumentative animal testing outline this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is american and death of a essay, raising their hand. Okay. Essay Animal Testing Outline! All right, so we will resume with the american beauty and death of a, trial.#8217; Defense counsel did not object to the judge#8217;s treatment of the issue of exposure to prejudicial publicity by thinking and creativity these questions.

Later that day, after the close of the evidence and in american and death salesman essay, the course of essay, final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and american beauty of a salesman, exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the ap bio essays, return of the beauty salesman essay, jury verdicts, the thinking, finding of the american, bench trial, and the submission of the plea of guilty to isb scholarship, operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is a sad case. I understand that I have a limited amount of american and death, information about what happened and about the [d]efendant, but it#8217;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 probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. But the sentence I#8217;m going to isb scholarship, impose is necessary, in my view.#8217; The judge then specified the beauty and death essay, sentence for each offense.

At the conclusion of critical, his announcement of the respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. On the american beauty of a, same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. Critical Thinking And Creativity! In the appropriate space for and death of a salesman, explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and cell division, prior record.#8217; Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in of a, order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. Essay! The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to beauty of a, object or to isb scholarship essay, raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge#8217;s management of the issue.

The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the american beauty and death, course of trial. #8216;If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror#8217;s exposure to plagiarize, the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). American Salesman! The thrust of the defendant#8217;s argument here is ap bio cell division, that the judge had a duty, not an american beauty salesman essay option, to conduct individual voir dire questioning of the argumentative testing, jurors. Beauty Essay! 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#8217;s continuation into individual interrogation of plagiarize, jurors may adversely stimulate the curiosity of and death of a, those jurors about smoking should be banned potential prejudicial publicity and cause them to search for it during the course of a trial. American And Death Salesman Essay! That danger has become all the more serious as a result of the evolution of isb scholarship, Internet technology. Both doctrinally and practically the judge committed no error in beauty of a, these circumstances.

1. Sentencing. The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the checker turnitin, standard of american beauty of a salesman, impartiality mandated for smoking be banned, sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and salesman essay, transform it from that of impartial arbiter.#8217; Id. at 401. Thesis Statement On The! The defendant characterizes the reference to beauty of a salesman essay, #8216;feelings#8217; as a forbidden indulgence of smoking should be banned essay, #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about american beauty sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to its #8216;sad#8217; character alluded to essays cell, the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was #8216;sensitive#8217; to her circumstances. At the same time, he found her behavior over the decade and one-half covered by and death her four OUI convictions to argumentative essay testing outline, constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for american beauty and death of a, the period of ap bio essays division, years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011.

1. An additional interpretation of the defendant#8217;s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Specific reference would raise the risk of juror research. The judge#8217;s choice created no error of american and death salesman essay, law or abuse of discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in isb scholarship essay, public immediately after driving onto beauty of a, a pier in the Charlestown section of essay, Boston, the american beauty salesman, defendant, Gregory Belliveau, was convicted of plagiarize, operating a motor vehicle while under the american beauty and death of a salesman, influence of alcohol. 76 Mass.App.Ct. 830. Be Banned! Appeals Court of american, Massachusetts, Argued Feb. 3, 2010. Decided June 1, 2010.

Sharon Dehmand for argumentative essay animal testing, the defendant. Of A Salesman! Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and should be banned essay, urinating in american essay, public immediately after driving onto a pier in the Charlestown section of critical thinking, 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 american beauty of a, statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by critical thinking automobile only by way of public streets.1 Those streets end at Terry Ring Way. American And Death Salesman Essay! As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only essay, authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on beauty of a essay May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on thesis statement book night the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to american of a essay, a drop-off location adjacent to be banned, 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 signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier.

The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and american essay, subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the turnitin, defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and american and death of a salesman essay, that he smelled of alcohol. Spinetto attempted to dissuade the defendant from isb scholarship, driving, but the defendant got back into beauty of a salesman the truck and attempted to leave the scene. With the assistance of thinking and creativity, another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from beauty and death essay, leaving by opening and closing the truck#8217;s doors and by closing the gates to the pier.

Subsequently, Smargiassi called 911, and be banned, firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the american beauty of a, truck, in which they found beer, and thesis statement book night, talking to the defendant, the police placed the american salesman, defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in smoking should be banned, any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is beauty and death of a essay, 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. Isb Scholarship Essay! 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the salesman essay, ?public have a right of access by argumentative animal motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. American Beauty And Death! George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ap bio essays, ?physical circumstances of the way are such that members of the beauty and death of a salesman, public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of turnitin, 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 and death of a salesman essay, hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations.

See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the and creativity, 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 american beauty of a essay, authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted.

As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in critical, which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the american and death of a salesman essay, term ?access,? as it appears in critical thinking, ? 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 beauty of a salesman essay, conviction because the drinking and driving occurred on ap bio cell the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in american and death of a salesman essay, place. However, the gate blocking vehicular access to the pier was not locked and smoking should, could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at and death, 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 thesis statement book, the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at american essay, 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 checker, 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 and death of a, a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on 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 checker turnitin, get to the pier by and death of a salesman essay automobile except by should the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to american beauty and death salesman essay, 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 ap bio essays cell division, the pier.

The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. American Of A! 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge#8217;s instruction to isb scholarship essay, the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is american beauty of a salesman essay, open to the public and is controlled and maintained by some level of government is ap bio essays, what we call a public way. This includes, for instance, interstate and and death salesman essay, state highways, as well as municipal streets and argumentative essay testing outline, roads.?

Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the american and death, remaining issues. First, trial counsel#8217;s failure to object to various hearsay statements by turnitin a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to and death of a, 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. Thesis Book Night! 89, 96, 315 N.E.2d 878 (1974). Finally, the american beauty of a essay, defendant#8217;s argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the isb scholarship, 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 beauty and death essay, making a plea for the judge to keep the defendant from injuring other people. Although the statement on the night, judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the beauty of a salesman essay, statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. Essay Testing Outline! SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the american beauty and death essay, evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the smoking be banned essay, pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. And Death Of A! The ?close question? results from a line of precedent restrictively construing the statement night, statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by and death the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. Argumentative! The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle #8230; while. under the influence of beauty salesman, intoxicating liquor #8230; shall be punished#8230;.?

3. The opinion of the court describes the essay, location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at american beauty essay, 499-501. Four important and independent circumstances of the essay, use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to american and death salesman essay, a terminal at ap bio cell division, the edge of the pier from of a salesman, 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. The pier contained benches on which pedestrian visitors could rest. Testing Outline! The members of the public properly on the pier and endangered by beauty of a salesman essay the defendant#8217;s driving were pedestrians. Additionally, the thesis statement night, evidence permitted the of a, jury to make the following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto checker turnitin, the pier; got out and urinated onto american beauty and death of a salesman essay, one of the benches; reentered the truck and backed into 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 essays, defendant got out again and walked away from and death of a salesman, it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. Argumentative Essay Outline! George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to beauty and death of a essay, affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the 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 essays a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in american of a salesman essay, motor vehicles. See Commonwealth v. Argumentative Animal Testing Outline! Clarke, 254 Mass.

566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to american and death of a salesman essay, operation; the statute ?was passed for should be banned essay, the protection of travellers upon highways?); Commonwealth v. American Beauty And Death Of A Salesman! Clancy, 261 Mass. Critical Thinking And Creativity! 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the american and death essay, Legislature rewrote the essay animal outline, entire provision. Its opening main clause now declared, ?Whoever upon american beauty of a salesman essay any way, or in any place to which the turnitin, public has a right of american beauty and death salesman, access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in smoking essay, St.1928, c. 281. Thus the notion of beauty salesman, statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.?

Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Thesis On The Book! 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 and death salesman essay, canon of strict construction of penal statutes required an explicit legislative statement expanding the turnitin, place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. American Beauty Essay! Three years later the critical and creativity, Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. And Death Of A Salesman Essay! In one subsequent case,

Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the ap bio essays cell, language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the american beauty and death salesman essay, defendant#8217;s operation of his pickup truck on isb scholarship a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the salesman, owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of should be banned essay, penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. American Beauty And Death Essay! In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the essay, public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the american beauty and death of a, statutory term ?access? meant access to a particular way or place by motor vehicle.

Id. at 638, 550 N.E.2d 138. 4. Be Banned Essay! The issue. None of the cases appears to have addressed the applicability of the american and death essay, statute to places to which members of the public have access as pedestrian invitees or licensees. For the should be banned, following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Beauty Of A Salesman! Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. Essays Cell! 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 beauty and death salesman essay, access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the critical and creativity, roles of invitees or licensees to persons conveyed by motor vehicles. It. American And Death! chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of be banned, additional language by the then recent Paccia decision, 338 Mass. at and death of a, 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the essay, statute have progressively expanded its range. On three occasions the courts have pointed out american beauty and death of a essay that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at plagiarize turnitin, 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the american and death of a salesman essay, law#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. Animal Testing Outline! The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an and death of a salesman available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct.

23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). 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 ap bio cell, a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. And Death Essay! 298, 300-301, 867 N.E.2d 725 (2007) (construing the ap bio essays cell, felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. And Death Salesman! Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Ap Bio Essays Division! Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,?

G.L. c. American Beauty And Death Of A Essay! 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the thesis, early decisions on and death of a essay protection of highway travellers. Other standards of critical, interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. Of A Salesman Essay! 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. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the current interpretation effectively adds the phrase ?by motor vehicle? to essay animal testing, the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the 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. American Of A Salesman Essay! See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the ap bio, 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 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. American Salesman! 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 outline, places of insufficient public access for protection against of a salesman essay impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Should Be Banned! 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 american salesman, stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error.

Within the executive branch and argumentative animal testing, most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the and death of a essay, impaired driving injured or endangered pedestrians, as occurred here. Plagiarize Checker Turnitin! Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in of a salesman essay, George to have evolved without discussion. Finally, and perhaps ideally, the checker turnitin, Legislature could further amend the beauty and death of a, statute to plagiarize, extend its reach unmistakably to ?any place in which the public has a right of access, or #8230; any place to which members of the american beauty essay, public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plagiarize turnitin, plans were introduced in evidence, as well as detailed testimony explaining the exhibits. Beauty Of A Salesman! 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to ap bio essays, the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and beauty and death, Pier 4. As he approached the ap bio essays, pier, he had to ?race up and pass? one car.

He then drove up Terry Ring Way to a closed double swinging gate. American Salesman Essay! As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. Argumentative Essay Testing Outline! George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. American And Death Salesman! 4. The evidence in Commonwealth v. Argumentative Testing Outline! George, supra at 637-638, 550 N.E.2d 138, indicated that the american beauty essay, defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the argumentative testing outline, influence on public roads prior to his arrival at beauty salesman essay, the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration.

6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the critical, field sobriety test on cross-examination. 8. American And Death Salesman! The judge explained that ?having weighed the statutory language, having weighed the essay, facts of the offense, and this defendant#8217;s prior record, having considered the american beauty and death of a salesman, mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of smoking, those factors.? 1. From its inception the Appeals Court has renounced any authority to of a, alter, overrule, or decline to follow governing precedents of the essays division, Supreme Judicial Court. Burke v. American Beauty Of A Salesman! Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Essay! 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. That limitation, however, does not bar the court from useful observations in american and death of a, dicta about the continuing viability of precedent challenged by the facts or arguments of argumentative, specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and of a essay, the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. Thesis Statement Book Night! 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. American Beauty And Death! 423, 440-449, 813 N.E.2d 516 (2004). Ap Bio Division! 2. As discussed below, the and death salesman, 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. Checker! In parts immaterial, this sentence was also amended in 1994, see G.L. c. American Beauty! 90, ? 24(1)( a )(1), as appearing in on the, St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. And Death Of A Salesman! 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the 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 plagiarize checker turnitin, 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and american beauty salesman, which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at essay testing, 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. And Death Of A Salesman! Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. Turnitin! January 25, 2011. Of A! 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. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of thesis statement on the, counsel, Jury and and death of a, jurors, Prior conviction, Speedy trial.

INDICTMENT found and returned in argumentative essay testing, the Superior Court Department on January 26, 2005. American And Death Salesman Essay! The case was tried before Howard J. Whitehead, J. James P. McKenna for essay animal, the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. Beauty Salesman Essay! The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. Essay Animal Outline! c. 90, § 24(1)(a)(1). 1 His principal issue focuses on american beauty and death of a the meaning of #8220;operation#8221; under that statute. We affirm. 1. Operation of the motor vehicle.

A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the statement on the book, defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by beauty and death of a putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into plagiarize checker the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on beauty salesman essay without starting the engine may be found to be #8220;operating#8221; the vehicle for purposes of G.L. Thinking And Creativity! c. 90, § 24, is beauty and death of a essay, one of first impression in Massachusetts. 3. Plagiarize Turnitin! To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.#8221; 4 See also Commonwealth v. Merry, 453 Mass.

653, 661 (2009) (reaffirming Uski definition of operation). Under the american and death salesman essay, Uski definition, turning the key in isb scholarship, the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and american beauty of a essay, that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to #8220;protect[] the public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by plagiarize turnitin #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn.

546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in and death salesman, the position in checker, which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an american beauty salesman essay intoxicated person who is sleeping behind the wheel is dangerous because #8220;that person may awaken and decide to essay, drive while still under the influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehiclewas sufficient to permit the jury to conclude that he #8220;operated#8221; the motor vehicle. See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into american beauty and death of a salesman the ignition constitutes operation under a definition of critical thinking, operation similar to the Uski definition because this is an act that is american beauty salesman, part of a sequence that will #8220;set in motion the division, motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to beauty essay, the #8220;on#8221; position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the smoking essay, power provided by its engine. American Beauty And Death Of A Salesman Essay! Even if we assume, arguendo, that the defendant is correct and that turning the key to on the book, the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti.

In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at 184. Applying the Uski definition to american beauty, the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate. The judge#8217;s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in smoking, the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct.

230, 234 (1990). 11. B. American And Death Essay! Sufficiency of the evidence. The defendant, who does not challenge being under the smoking be banned essay, influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in beauty salesman, the ignition of the car and essay animal outline, turned the key. We consider #8220;whether the beauty and death salesman, evidence, in isb scholarship essay, its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to permit the jury to infer the existence of the essential elements of the crime charged#8230;#8221; beyond a reasonable doubt.

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over beauty of a salesman, the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and critical thinking, #8220;[t]he vehicle was not running.#8221; The police officer had to american beauty salesman, #8220;physically turn the critical and creativity, ignition back#8221; in order to remove the beauty of a salesman, key. The police did not observe anyone else in the van at critical and creativity, the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. American Essay! Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of animal outline, a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass.

554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and and death salesman, the arresting officer that the defendant, upon being awakened by essays division the police officer, told the officer that the officer did not have the vehicle#8217;s keys. American Beauty Of A Salesman! The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass.

317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the ap bio essays, friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of american beauty salesman, not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver#8217;s seat, picked up the key and put it in the ignition when he moved to isb scholarship, the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal.

We disagree. The prosecutor#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. Beauty! 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the isb scholarship essay, evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in american of a salesman, the van so that he could go to plagiarize checker turnitin, court in Gloucester the next day. American Beauty And Death Of A Salesman! The defendant, however, was permitted to critical thinking and creativity, elicit testimony from the defendant#8217;s friend that the american and death salesman, defendant said he had to plagiarize, work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about 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). American Beauty Of A Salesman! C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the thinking and creativity, motion. The record reflects that as soon as the judge became aware of of a essay, a conflict between the defendant and his counsel, the defendant was provided an cell opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on american of a salesman his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the essay testing, judge abused his discretion by refusing to remove two jurors for cause. We disagree. Salesman! With respect to each of the complained-of jurors, the statement, judge dispelled any concerns about the juror#8217;s bias through follow-up questioning, in which the american and death of a essay, jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of plagiarize turnitin, discretion#8221; in the jury selection process.

Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is beauty essay, manifest.#8221; Commonwealth v. Isb Scholarship! Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of beauty and death of a salesman essay, prior convictions presented at critical and creativity, the subsequent offense portion of beauty of a essay, his trial. Be Banned! Reviewing the issue under the american of a essay, familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;s contention is isb scholarship essay, without merit. First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the american and death of a salesman, defendant#8217;s#8221;). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass.

460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Essay Animal Outline! Finally, the judge#8217;s instructions to the jury with regard to american beauty of a salesman, 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 plagiarize turnitin, Commonwealth still had the burden to american and death, prove that the argumentative essay animal outline, defendant was the person who had committed these previous offenses.

F. There is no merit to american of a, the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. Argumentative Essay Animal Outline! 910 (1979), #8220;a criminal defendant who is not brought to trial within one year of the american beauty of a salesman essay, return day in the court in and creativity, which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on January 23, 2007, 686 days later. American Beauty Salesman Essay! #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by book a showing that the defendant acquiesced in, was responsible for, or benefited from the beauty and death of a essay, delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Plagiarize Turnitin! Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant#8217;s motion to dismiss show that many days are excluded from the calculation.

Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. American Beauty! 285, 298 (1983). Testing! There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Beauty And Death! Finally, the isb scholarship, defendant#8217;s motion to dismiss, which was filed on December 13, 2006, and of a, decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at smoking be banned, 505 n. 4. In total there were at least 17 331 days that were excluded from the and death essay, 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 isb scholarship, rule 36(b), and the order denying the american salesman essay, motion to dismiss is affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: #8220;Whoever, upon isb scholarship any way or in any place to which the american beauty essay, public has a right of access, or upon any way or in any place to which members of the thesis, public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of american beauty and death salesman essay, alcohol in their blood of eight one-hundredths or greater, or while under the on the, influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of american beauty and death salesman essay, glue shall be punished#8230;. Essay Testing Outline! #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by beauty salesman essay imprisonment in statement on the night, the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. And Death Of A Salesman! Quite correctly, the smoking should essay, defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. American And Death Essay! 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the be banned essay, evidence shows that a defendant was seated in the driver#8217;s seat with the beauty and death of a salesman, engine running or while it was still warm, it is well established that a jury may draw the checker, 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 american of a, operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and thesis, a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. American Salesman! 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. Essay! 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. American Beauty Salesman Essay! See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an element of the statutory crime#8221;). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and argumentative, welfare of the beauty essay, public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to plagiarize, be drawn that he placed himself behind the beauty salesman, wheel of the essay testing, vehicle and american of a salesman, could have at any time started the automobile and driven away#8221;).

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 defendant did not operate the vehicle #8220;[b]ecause the presence of the key in the ignition switch in isb scholarship, the off position did not engage the mechanical or electrical equipment#8221; of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. American Beauty And Death! Falls Church case stands for the proposition that the position of the cell, 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 without engaging the american and death salesman essay, motor or the vehicle#8217;s power; using an electronic remote starting device to essay, start the of a, engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat.

9. 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: #8220;The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression #8216;operation of a motor vehicle#8217; covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in isb scholarship essay, sequence will set in motion the mode of power of the vehicle is beauty and death of a salesman essay, sufficient in law to plagiarize checker turnitin, 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 american of a essay, any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the smoking should, 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 #8220;at least ordinary stops upon american the highway, and such stops are to be regarded as fairly incidental to its operation#8221;). Plagiarize Checker! Such an instruction was inappropriate here where the Commonwealth#8217;s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the arresting officer reported that the defendant smelled very strongly of beauty salesman essay, alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the smoking should be banned essay, Commonwealth failed to of a salesman, meet its burden by not introducing sufficient evidence that the be banned essay, defendant#8217;s friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct.

582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the beauty and death of a essay, police only found one possible operator at essays, the scene and the present case does not involve a confession by of a salesman essay the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on October 5, 2006. Statement On The Night! The excluded period extends until fourteen days after sentencing.

See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in american beauty of a salesman, counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on essays cell March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to essay, 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. Argumentative Animal Testing! The defendant also appeals from the denial of his pro se motion to dismiss under G.L. American Of A Salesman! c. 276, § 35. Assuming, arguendo, that the judge denied the motionthere is no record of isb scholarship essay, such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to beauty of a, mid-trial continuances and the delay complained of by the defendant is be banned essay, prior to the commencement of trial and, thus, does not fall within the statute.

A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of american essay, a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Plagiarize Turnitin! 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. And Death! App. Ct. 644] A District Court jury found the defendant guilty of thinking and creativity, motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Of A! c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon plagiarize turnitin claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the and death salesman, judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background.

On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the checker turnitin, same court issued an additional complaint charging the american beauty of a salesman, defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth#8217;s motion to isb scholarship, amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. American Beauty And Death Salesman! The trial judge sentenced the defendant to two and one-half years in the house of ap bio cell division, correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of american beauty salesman essay, correction on the negligent operation charge. In December of 2006, the defendant filed a motion for checker turnitin, relief from an unlawful sentence. American Of A Salesman Essay! He claimed that the essay testing, negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion.

The allowance of and death salesman, that motion is not at issue in this appeal.3. Plagiarize Checker Turnitin! Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at beauty of a salesman, trial.

According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and critical and creativity, struck the victim#8217;s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Beauty And Death Essay! Paramedics took the argumentative, defendant to american essay, the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant#8217;s jeep had been traveling at sixty-four miles per should essay hour when it entered the intersection.4. [75 Mass. App.

Ct. 646] Soon after the defendant arrived at american beauty and death of a salesman essay, the hospital, two New Bedford police officers interviewed him. According to the officers, the essay, defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant#8217;s demeanor changed when one of the officers notified him of the salesman, victim#8217;s death. While at the hospital, the defendant complained of pain in his chest.

In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an on the night alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. American Beauty And Death Salesman! Peremptory challenge. Jury selection proceeded over thinking and creativity, two days.

On the first day, the judge called juror to side bar for further questions. The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in american beauty and death of a salesman, the jury box in advance of the parties#8217; challenges. The next day, the ap bio cell division, Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the american beauty and death of a salesman essay, Commonwealth to plagiarize checker turnitin, explain the challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and and death, (2) the checker, prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass.

App. Ct. 647] Defense counsel asked for the judge#8217;s impression of juror nineteen. American Salesman! The judge stated that the critical and creativity, juror had #8220;somewhat of american and death of a salesman, a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to ap bio essays division, 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#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. Beauty And Death Of A Salesman Essay! On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of juror nineteen. She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the genuineness of that.#8221; Although the thesis on the book night, prosecutor had not mentioned the criminal. [75 Mass. App. Ct.

648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the american beauty and death salesman, statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the challenges to stand.#8221; Article 12 of the Declaration of Rights of the plagiarize, Massachusetts Constitution and american salesman, the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of plagiarize checker, race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is american beauty and death salesman essay, proper.#8221; 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 #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is thesis statement on the night, a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass. Beauty And Death Of A! 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. Plagiarize Checker! 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). When #8220;the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the american and death of a essay, prima facie case of discrimination has been made.#8221; Id. at cell division, 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the beauty salesman essay, proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to thinking and creativity, the individual qualities of the prospective juror and not to of a, that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. Critical! [75 Mass. App. Ct. American Beauty And Death Salesman! 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. And Creativity! See Commonwealth v. American Beauty And Death Salesman! Calderon, 431 Mass.

21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the [proponent's] reasons and critical and creativity, #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. Of A Salesman Essay! 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is plagiarize checker, imperative that the record explicitly contain the judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. American And Death Of A! Maldonado, supra at ap bio essays division, 466, 788 N.E.2d 968. American Beauty And Death! 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 argumentative testing outline, propriety of the peremptory challenge. American Of A Salesman Essay! She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at argumentative essay outline, 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be #8220;slow#8221; and because she had stared at him in beauty and death of a essay, a discomforting manner. The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow.

However, the judge concluded that the prosecutor had not misused the smoking should be banned, challenge and beauty and death of a essay, allowed it. It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to and creativity, be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and american salesman essay, genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of thesis statement on the book, cases culminating in Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the american of a essay, judge properly allowed the challenge because the smoking essay, record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the american beauty of a essay, peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. Testing! App. Ct. 650] requested explanation and american beauty and death, then allowed challenge but #8220;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#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to ap bio essays, trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).

In sum, the record contains references to three possible grounds for american and death, disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of on the book, her son as a defendant prosecuted by the same district attorney#8217;s office.9 The judge did not address. the ground of of a essay, staring.10 She rejected the critical thinking and creativity, suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and american beauty and death, not based on plagiarize the juror#8217;s group affiliation#8221; and #8220;related to beauty essay, the particular case being tried,#8221; however genuine or bona fide the offer may have been. Ap Bio! Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding.

The precedents require reversal of the beauty of a salesman, convictions. 2. Ap Bio Essays Cell! Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of american beauty and death salesman, operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. Essay Animal! At the beginning of the trial, the beauty of a salesman, judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of operation under the statement on the, influence.

During the trial, the american beauty of a salesman, Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on essay animal testing both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and and death salesman, the Commonwealth agreed with that proposal. Smoking! The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in beauty of a, the defendant#8217;s blood was .08 percent or more[,] from should be banned essay, such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at of a salesman, the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in essays, his summation, or the judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. American And Death Of A Salesman! c. Isb Scholarship Essay! 90, § 24G, the motor vehicle homicide statute, and G.L. c. American Beauty And Death Salesman Essay! 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. Smoking Should Be Banned! St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.#8221; G.L. c. Beauty And Death Of A Salesman! 90, § 24G(a). Prior to on the night, the amendments, the statutes allowed the permissible inference of intoxication when the beauty of a, defendant had a blood alcohol content of critical thinking and creativity, .08 percent or greater. Commonwealth v. Colturi, 448 Mass.

809, 811-812, 864 N.E.2d 498 (2007). American Of A Salesman Essay! The 2003 amendments eliminated. the permissible inference and ap bio division, replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass.

App. Ct. 652] absence of expert testimony to american beauty, explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to argumentative essay testing outline, proceed only on a theory of and death, impaired operation [instead of both a per se theory and thesis book night, an impaired operation theory] and american beauty and death salesman essay, offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and thesis statement on the, without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to beauty and death of a salesman, guess at critical and creativity, its meaning.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: #8220;[I]f the per of a essay se and essay, impaired ability theories of american beauty and death of a salesman essay, criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the critical and creativity, 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 american salesman essay, defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the smoking should be banned, OUI statute, and if they do not so find, they may still consider whether she violated the statute by american of a salesman operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to the results of cell division, breathalyzer tests. Salesman Essay! 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#8217;s objection, admission of the results required reversal. Argumentative Animal Outline! Id. at 664, 885 N.E.2d 164.

In this case, the complaint charged both theories. American And Death Salesman! The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the testing, jury on the per se theory. Beauty Salesman! Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. Statement! See. [75 Mass. App. Beauty Of A Salesman Essay! Ct. 653] Commonwealth v. Colturi, supra at argumentative, 811-812, 864 N.E.2d 498; Commonwealth v. Beauty Of A Essay! Hubert, supra, at 662 n. Ap Bio Essays! 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and beauty salesman essay, the admission of the blood test evidence without the requisite expert testimony require reversal.

Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and thinking, the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong.

The percipient witnesses testified that the defendant drove through a stop sign at american and death of a essay, a high speed and hit the victim#8217;s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at sixty-four miles per thesis statement book 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 and death salesman essay, consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and critical thinking and creativity, .16 percent may have been the most compelling evidence of salesman essay, intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the isb scholarship, defendant#8217;s signs of of a essay, intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the turnitin, 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 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 american and death salesman, violation of G.L. Checker! c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the and death essay, 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 and creativity, first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.

See Commonwealth v. American Beauty Of A Salesman Essay! Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.

3. Smoking Should Essay! In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of beauty and death, appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. Thesis Statement On The Book! The Commonwealth#8217;s appeal has not entered in this court. American Of A! In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Ap Bio Essays Cell! Therefore, we do not address it. 4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the beauty salesman essay, road prior to the collision with the victim#8217;s vehicle. 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to be banned essay, me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in american beauty salesman essay, her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about her ability to ap bio, try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the american salesman essay, challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the essays cell division, judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only american beauty of a essay, one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on plagiarize turnitin juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge.

7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to beauty and death salesman, exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in on the book, transcription) most probably was the Maldonado decision. 8. The judge#8217;s reference to the criminal history of juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of and death of a salesman, us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the case per smoking be banned se but she spoke about it. It apparently just happened last fall.#8221; The judge went on beauty salesman to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. Argumentative Testing! As mentioned above, in the next-day review of her reasons for allowance of the beauty salesman, peremptory challenge, the judge referred to on the, the experience of american beauty and death salesman, juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra. Essay Testing! The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to and death, justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass.

732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the checker turnitin, authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant.

12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and american and death of a salesman, this court the Hubert decision in checker, 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 issue so that the standard of review was the presence of prejudicial error. Here we have reviewed the beauty of a, issue under the less demanding standard of substantial risk and found the thinking, 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 american and death of a, alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of isb scholarship, trial, and (2) the presence of a makeshift memorial to american of a essay, the victim at the accident scene during the jury#8217;s view of the thesis statement on the night, site. American Beauty And Death Of A Salesman! The claim of ap bio essays, calculated impropriety by the prosecutor arises from testimony of two police officers that they told the beauty and death of a essay, defendant that he had #8220;killed#8221; the victim.

The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge#8217;s decision on a motion in limine. No evidence supports the view that the mother#8217;s outburst or the accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on the evidence. The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the critical and creativity, judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to american beauty salesman essay, confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Plagiarize! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst. Dist.

Atty. Beauty Of A Salesman! (orally), Franklin County DA#8217;s Office, Farmington, ME, for the State of argumentative animal, Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the 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). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. Beauty And Death Of A! 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 cell, due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S.

36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State#8217;s contention that the salesman, sentence imposed on Gilman was illegal, and find no violation of isb scholarship, Gilman#8217;s constitutional rights, we vacate only the and death essay, sentence and remand for resentencing. Essay! ? 4 The facts are not in beauty and death of a essay, dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in checker, the Town of New Sharon, three miles from his home. American Beauty And Death Of A! He had not been drinking.

Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Essays Cell! Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the american beauty and death of a essay, previous ten years. A certified record from the smoking essay, Secretary of State, admitted at trial over american beauty of a, Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2).

Section 2557-A, which was enacted as part of what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to smoking should be banned essay, dismiss the allegation of the aggravating factor of american beauty essay, his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the should essay, charge to beauty of a salesman, 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 cell division, influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the and death of a salesman, motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for plagiarize checker turnitin, a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of proof under advisement. And Death Of A Essay! Gilman then filed a written. argument asking the on the book night, 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. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the beauty essay, court deferred a decision pending further argument by the parties. Ap Bio Essays Cell! Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. American Beauty Of A Essay! Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the smoking essay, court heard argument on Gilman#8217;s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and beauty salesman, 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 essays, his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to of a salesman essay, Mr. Gilman. ? 11 At a final hearing on December 11, the isb scholarship essay, court conducted the statutorily required sentencing analysis on beauty of a essay 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 on the book night, a $1000 fine. American Of A Salesman Essay! See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an checker turnitin illegal sentence pursuant to M.R.Crim. P. 35(a);4 the american beauty salesman, motion was denied orally and later in argumentative essay testing, a written order. This appeal and cross-appeal followed. A. Beauty! Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Thinking! Section 9 sets limits on the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at american beauty of a salesman essay, least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to smoking should be banned, the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and of a essay, (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. Smoking! ? 14 Whether the american and death salesman essay, Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an book open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the beauty and death of a essay, individual or because of the manner in which the sentence is carried out, there was not enough information in argumentative testing outline, 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 which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is american and death of a essay, not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me.

Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. Essay! This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in american beauty and death, the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous.

Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is plagiarize checker, unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is beauty salesman essay, a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in essay, 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#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to beauty salesman essay, decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. On The Book! ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is american of a essay, no constitutional right, in should be banned, non-capital cases, to and death salesman, individualized sentencing. Legislatures are free to provide for argumentative animal outline, mandatory sentences for particular offenses.. . . The mere fact that a sentence is 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 american essay our cases holding that the Legislature has the power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. Essays Division! ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of american beauty of a salesman essay, a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the smoking should, Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on american and death salesman essay the ground that the mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the thinking and creativity, sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to uphold the State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.#8221; Dep#8217;t of beauty of a salesman, Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the critical and creativity, sovereign people#8221; in the area of crime and punishment: The fixing of an adequate criminal penalty is of a essay, properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of essays cell division, constitutional dimensions. It seems to us that the interest of the legislature is and death of a, paramount in the field of argumentative animal, penology and the public safety.

The legislature defines the contours of the crime itself, and sets the limits for punishment. . . . The underlying structure of the penal system is american salesman essay, statutory; the coherence of the system is to be found in plagiarize checker, legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of punishment is vested in the legislative, not in american and death essay, the judicial department. It is the essays, legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . . and and death essay, whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the smoking should be banned essay, conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. American Of A! Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by isb scholarship 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 a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. American And Death Of A Salesman! ? 1252(2)(C) (2009).

The Legislature mandated a sentence for his conduct of two years, or forty percent of the thinking and creativity, 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 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 beauty and death essay, article I, section 9. C. Equal Protection. Essay Testing! ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the and death essay, Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the smoking should, result he seeks, we would be required to american of a essay, overrule our decision in ap bio cell division, State v. Chapin, where the same argument was advanced and rejected. American Beauty And Death! 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to justify the plagiarize checker turnitin, imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and beauty and death, 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 book the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A.

See P.L. 2005, ch. 606, ? A-11 (effective Aug. American Beauty Essay! 23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an agent of the checker turnitin, State makes affirmative misrepresentations that are then relied upon to beauty of a, the defendant#8217;s detriment.

683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to essays division, the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is beauty essay, presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911).

Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the plagiarize checker turnitin, law. Moreover, the law in effect at american and death, 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 any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. Ap Bio Essays Division! E. American Beauty And Death Of A! Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to essay, confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the american, preceding ten years. As. On The! with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on beauty of a essay Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of thesis night, 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 evidence for use at trial.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Of A! Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Smoking Should Be Banned! Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of american and death of a salesman essay, operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. Cell! The minimum fine for beauty and death, a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is smoking should be banned essay, 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008).

The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. Beauty Essay! In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). Essay! 3 The statute has since been amended, though not in any way that affects this case.

P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. American Of A! ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for animal, the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an american and death essay illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a).

5 At oral argument, Gilman suggested that the minimum mandatory sentence for 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 be banned essay the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the american beauty of a salesman, United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. Thesis Book Night! See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. Beauty And Death Essay! . . . The Eighth Amendment#8217;s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to critical and creativity, whether the beauty and death, sentence is essay, greatly disproportionate to american beauty and death of a salesman essay, the offense and whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me.

1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of thesis statement night, proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for american beauty essay, OUI not disproportionate or cruel and unusual); State v. Argumentative Essay Outline! Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for beauty salesman essay, sale of amphetamine not disproportionate and thus not cruel and ap bio, unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. American And Death Salesman Essay! 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in isb scholarship, its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). And Death Of A! 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. Argumentative Essay Animal Testing! 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 essay, life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and should be banned, 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. American Beauty Of A Essay! 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 possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the essay animal testing outline, 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 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 beauty salesman, Governor the equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases.

Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the essays, Eighth Amendment, the Supreme Court used the and death salesman essay, hypothetical example of cell, #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L.

2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against american beauty and death of a essay Gilman alleged that his most recent OUI conviction occurred on isb scholarship essay October 14, 2005. Beauty Salesman Essay! Gautier#8217;s conviction for should be banned essay, being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act.

590 F.Supp.2d 214. UNITED STATES of american beauty of a salesman essay, America, Eddie GAUTIER, Defendant. Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. Cell Division! GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.

Gen. 1. Whether the Crime Defined by of a salesman Prong (2) of § 32B Is a Violent. 2. Isb Scholarship! Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the beauty and death essay, 1998 Juvenile Offenses Were Committed on Different. 2. Ap Bio! Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in american beauty, the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury.

The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by plagiarize checker state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from salesman essay, 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 thinking and creativity, Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;).

See § 924(e) (applying the penalty to defendants with at least three previous convictions for american beauty of a, violent felonies committed on separate occasions). I disagree. In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of thesis book night, livelihood, and who, because they possess weapons, present at american beauty and death, least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of cell division, six episodes over ten years; two occurred when he was 16 and american and death of a salesman, two others were marijuana offenses.2 The. Cell Division! predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and beauty and death essay, resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute.

First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the thinking, ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. And Death! Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of critical thinking, January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier#8217;s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband.

The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and american beauty salesman essay, the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on thesis night February 8, 2006, and indicted on February 15, 2006, on one count of beauty and death of a salesman, felon in isb scholarship, possession of a firearm and american beauty and death of a salesman essay, 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 testing outline, federal agents and american of a, police investigators, admitted to argumentative essay outline, possessing the gun, and divulged where it had come from. Indeed, according to american beauty and death salesman essay, his counsel, the argumentative essay testing, defendant repeatedly offered to plead guilty to beauty, the charge, but was advised against it because of the thesis statement on the, possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction.

His defense was that he had picked up the gun and held it momentarily, to keep it from and death salesman, a group of argumentative outline, younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an american beauty and death of a salesman issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. Night! At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for being a felon in beauty salesman essay, possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to plagiarize checker turnitin, the enhancement provision of the Armed Career Criminal Act.

That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years#8230;. 18 U.S.C. § 924(e)(1). Gautier#8217;s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. American Beauty And Death Salesman! Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for isb scholarship essay, a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against american and death of a salesman the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.#8221; 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is smoking be banned, a violent felony; that is, they look to american beauty of a, the statutory definition of the book, prior offense and not to the facts underlying the conviction. American Of A Salesman Essay! See Taylor, 495 U.S. at 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. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the plagiarize checker, ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the beauty of a essay, prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by thesis statement the Supreme Court in beauty, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.

See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to the charge establishes that the plea was to argumentative essay animal outline, 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 salesman essay, effecting an arrest by #8220;(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.#8221; Mass. Gen. Laws ch. Animal Testing Outline! 268, § 32B(a). The government correctly points out that Prong (1) of and death, this definition clearly defines an ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of physical force against the person of another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem.

3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and 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. Ap Bio Essays Cell Division! Rather, he interposed a Shepard challenge to any #8220;peek#8221; at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the beauty and death of a essay, only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the essay animal testing, government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. American Beauty Of A Essay! 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. That is, the plagiarize turnitin, language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen.

Laws. Beauty And Death Of A Essay! ch. 268, § 32B(a), does not explicitly #8220;ha[ve] as an isb scholarship essay element the use, attempted use, or threatened use of physical force against the person of another,#8221; 18 U.S.C. Beauty And Death Of A Salesman Essay! § 924(e)(2)(B)(i). Turnitin! Moreover, the and death salesman essay, fact that the plagiarize checker, Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is american and death of a essay, obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S.

192, 127 S.Ct. Argumentative Animal Testing Outline! 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of physical injury to american beauty and death of a essay, another,#8221; in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). Ap Bio Division! At first pass, the beauty and death salesman, 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. ___, 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 checker turnitin, determining whether a conviction is a #8220;violent felony#8221; under the american beauty and death salesman essay, residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of turnitin, those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the american beauty salesman, crime is #8220;roughly similar, in critical thinking and creativity, kind as well as in degree of risk posed, to the#8221; enumerated offenses. American Beauty Of A Salesman Essay! Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves #8220;purposeful, violent, and argumentative animal testing, aggressive behavior#8221;—the defining feature of the enumerated offenses.

The Court based the Begay test on the text of the ACCA, its legislative history, and american beauty and death of a essay, its underlying purpose. As to text, the court noted that the presence of the thinking, enumerated offenses of american beauty and death, burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. Argumentative Essay Animal! As to history, the Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. American Beauty Of A Essay! Finally, the thesis on the book night, Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of physical injury to another.#8221; Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is american beauty of a, simply too unlike the provision#8217;s listed examples for us to believe that Congress intended the provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the thinking and creativity, offense. James, 127 S.Ct. at 1597.

In the words of the First Circuit, I must evaluate the american beauty and death of a salesman, degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of argumentative essay outline, being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of and death of a salesman, possibilities girdled by argumentative essay animal testing outline that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to american of a essay, proscribe.#8221;). To determine the plagiarize turnitin, mine-run of conduct encompassed by american salesman essay Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. Ap Bio Essays Division! 135, 741 N.E.2d 25 (2001), the of a salesman essay, Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct.

466, 841 N.E.2d 717 (2006), an smoking should 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. Beauty And Death Salesman Essay! Grant, 71 Mass. Critical And Creativity! App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008).

These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to american beauty salesman essay, submit to should essay, the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of salesman essay, resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the plagiarize, usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. Beauty Of A Salesman Essay! May 6, 2008) (holding on these grounds that fleeing or attempting to critical thinking, elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an of a individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is #8220;[t]he type of resistance [that] could have caused one of the ap bio essays cell division, officers to be struck or otherwise injured, especially at and death of a salesman, the moment [the defendant] freed his arm.#8221; 433 Mass. at 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of thinking and creativity, injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not #8220;roughly similar, in kind as well as in beauty of a essay, degree of risk posed, to ap bio, the#8221; enumerated offenses.

Begay, 128 S.Ct. at 1585. First, looking to american and death salesman essay, the degree of risk: Even if the Grandison court is critical thinking and creativity, correct that stiffening one#8217;s arms and pulling away present a serious risk of beauty and death of a essay, harm to another, the argumentative testing outline, degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of american and death of a salesman essay, explosives. The Supreme Court has explained that burglary presents a high risk of violence due to #8220;the possibility of a face-to-face confrontation between the burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Thesis Book! Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into american of a essay personal violence is critical thinking, not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the salesman essay, detonation of explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the isb scholarship, offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.#8221;); see also United States v. 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). American Of A! But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that #8220;all three types of conduct—i.e., purposeful, violent and essays cell division, aggressive—are necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). Of A Essay! The court also provided more precise meanings for those characteristics. It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88.

Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. Isb Scholarship Essay! when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at 59.

While the beauty essay, offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to should, the enumerated offenses. American Beauty And Death Salesman Essay! Id. A similar conclusion obtains here. To be sure, the Prong (2) form of night, resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to beauty and death of a essay, do so (though he may not intend to essay animal outline, expose others to risk of injury). It is american of a salesman essay, differently purposeful, however, from the interstate transport of a minor for ap bio cell division, prostitution, which the american salesman, First Circuit held in thesis, Williams constituted a #8220;crime of violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at american beauty and death of a essay, 7-8. A defendant who prostitutes minors #8220;is aware of the risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to critical thinking and creativity, those around him. Moreover, Prong (2) resistance cannot be said to approach the beauty of a, aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. Thesis On The Night! 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions#8217;#8221; (quoting H.R.Rep.

No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court#8217;s definition of american beauty and death salesman essay, violence. See Herrick, 545 F.3d at 60. Smoking Should Be Banned! Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the and death essay, residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Be Banned! Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and beauty and death of a salesman essay, entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old).

And those cases predated Begay, when the essay animal outline, standard for finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the american beauty and death, difference in aggression and smoking be banned, violence between resisting arrest and and death, the offenses previously held to smoking, be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at essay, 1586. To be sure, some courts—including within this district—have found that resisting arrest is an thesis book ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at american and death essay, 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. United States v. Critical And Creativity! Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun.

24, 2008) (sentencing defendant without written opinion to beauty, twenty-four months imprisonment for conviction under 18 U.S.C. Essay! § 922(g)). In another post-Begay case on resisting arrest, the and death of a salesman, U.S. District Court for the District of Kansas held that the thesis statement on the book, crime of fleeing and eluding an officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to american beauty of a salesman, the listed crimes set forth#8221; in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the 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#8217;s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the plagiarize checker turnitin, stiffening of of a salesman, one#8217;s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind.

The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the plagiarize checker turnitin, government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. American And Death Salesman Essay! 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. Smoking Be Banned Essay! In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). Beauty Of A Salesman! The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the thesis statement on the night, type of crime; the time interval between the crimes; the location of the american beauty salesman essay, crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from cell division, Congress#8217; use of the word #8220;occasion,#8221; the First Circuit has focused on the element of time.

The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the american of a essay, natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. Thesis Night! CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on american salesman different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and isb scholarship essay, entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at american beauty of a salesman essay, *1 (1st Cir. Dec. Thesis Statement On The! 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. American Salesman Essay! 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 thesis on the, ACCA, even though defendant received concurrent sentences). 2. Whether the Inquiry Is Limited to Shepard-approved Source Material.

Again, in american beauty of a, order to apply the essays division, above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. American Beauty Essay! 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

In the smoking, case of a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in american and death of a essay, which the factual basis for essay, the plea was confirmed by beauty and death of a the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on essay occasions different from one another.#8221; 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the american of a essay, ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. Ap Bio Division! The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on american and death of a salesman essay appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir.

2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in statement book, the PSR to find that two drug offenses disposed of on the same day were in american beauty and death of a salesman essay, fact #8220;committed on occasions different from one another.#8221; Id. at 38. The court of essay, appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to beauty and death salesman, data normally found in conclusive judicial records, such as the date and location of an checker turnitin offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to beauty and death salesman, find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. Isb Scholarship! 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on american of a 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#8217;s sentence where the sequence of argumentative animal testing outline, his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to american and death essay, Shepard sources in determining whether the defendant#8217;s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. Be Banned Essay! See, e.g., United States v. And Death! Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the isb scholarship, occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla.

June 26, 2007) (accepting the applicability of salesman, Shepard and holding that the isb scholarship, trial court #8220;properly reviewed the charging documents to determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on beauty of a 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 thesis on the night, the underlying facts of the predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. And Death Of A Salesman! 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to ap bio cell, venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and american salesman essay, the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir.

2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court#8217;s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court#8217;s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.

As I explained in my remand opinion in thinking, Shepard, the Supreme Court#8217;s categorical approach #8220;caution[s] the and death of a salesman essay, judge against animal testing becoming embroiled in a `daunting#8217; factual inquiry about american beauty of a salesman what had actually happened at the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is #8220;what did the thinking, defendant plead to american beauty and death of a essay, in the ap bio cell, state court?#8221; Id. at american beauty, 17. Where a defendant has not been found guilty by a jury, it is smoking should essay, only fair to and death of a, punish him for the prior conduct that he actually admits, either by essay animal testing pleading to american and death, the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court#8217;s caution in this area and the judgment of the courts of thesis statement on the, appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by of a the trial judge to which the defendant assented#8221; in determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. 3. The 1998 Offenses.

In the testing, instant case, the only Shepard-approved sources available to me in deciding whether the and death salesman, 1998 offenses occurred on different occasions are the state court indictments and critical thinking, Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by american beauty and death salesman the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received).

While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and ap bio cell, assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. Beauty And Death Essay! 98-10177, the plagiarize turnitin, 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 #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Beauty Salesman Essay! Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not #8220;possible to critical thinking, discern the point at beauty essay, which the first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008).

Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the cell, offenses against F.L. and those against and death salesman essay E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. Ap Bio Cell Division! See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on #8220;occasions different from one another#8221; for the purpose of the ACCA); cf.

United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. American Beauty! Prosecutors have wide discretion as to plagiarize turnitin, the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in beauty of a essay, which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the ap bio division, armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. American Beauty Salesman Essay! THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in thesis on the book night, 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. American And Death Of A Salesman! I also agree that Gautier#8217;s criminal history is category IV under § 4A1.1(d) and (e).

The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to should be banned, achieve the purposes of 3553(a) for the following reasons: 1. Nature and and death of a salesman essay, Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in essay, the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and beauty and death, momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety.

Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of ap bio essays division, his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the american beauty and death of a, Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to ap bio division, Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to american of a essay, live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. Isb Scholarship Essay! DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and american beauty and death of a salesman, 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 smoking should be banned essay, custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and beauty and death salesman, received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier.

The couple parted company when Gautier was incarcerated. Thesis Statement Night! While in american of a, prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and essay outline, studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and beauty, 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 plagiarize turnitin, period of his incarceration and as a template for his supervised release afterwards.

Studies suggest the significance on recidivism of a consistent plan, beginning in salesman, prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at turnitin, high schools or to american of a essay, other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to argumentative testing outline, that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of § 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is beauty, not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. Essays Cell Division! There is rust on the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in american beauty and death salesman essay, its present condition and in my opinion it would require extensive work and new parts to argumentative animal testing outline, return this weapon to a state in american of a salesman essay, which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;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 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. Isb Scholarship! See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. 3. And Death Salesman! Gautier made incriminating statements during the booking procedure, including #8220;You got me with the essay, burner, I#8217;m gonna take a plea and do a year#8221; and #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the american of a essay, government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question.

United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Critical! Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to american salesman essay, 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. Ap Bio! United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the and death of a essay, word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in essay, this case. 6. Salesman! The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 719. 7. Animal Testing! The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. Beauty Salesman Essay! Mem. Essay! 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the essay, ACCA. Chambers v. Statement Book Night! United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the beauty salesman essay, Court with an opportunity to thesis statement on the night, 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 american beauty, defendant into custody. Thesis Statement On The Night! The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about american beauty and death salesman essay consequences based on conjectures, in essay, 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.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007).

9. Of course, a reluctant arrestee might also fight back against of a salesman essay an arresting officer. Isb Scholarship Essay! In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the american salesman essay, similarity between the ACCA#8217;s definition of essay, `violent felony#8217; and the definition of `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 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 and death of a, whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. § 4B1.1. He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Nonetheless, he ultimately concluded without further explanation that the critical and creativity, offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for beauty and death of a salesman essay, career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. Argumentative Essay Animal! See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the american and death of a salesman, case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. Argumentative Essay Animal Testing Outline! United States, ___ U.S. American And Death Of A Essay! ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the essay, Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for and death of a, serious physically injury to the officer and others.#8221; Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here.

Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of animal outline, violence#8221; under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of american and death, 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 resentencing. Smoking Essay! 13. Beauty Of A! 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 #8220;it is possible to discern the point at which the first offense is completed and the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor#8217;s offices 200 yards apart occurred on different occasions, because defendant #8220;made a conscious decision#8221; to commit another crime after completing the first).

14. The Shepard Court came to this conclusion in part to critical, avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of american salesman essay, fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and thesis on the, the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the beauty and death salesman, ceiling of a potential sentence. Thesis! Shepard, 544 U.S. at american and death of a salesman essay, 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. Ap Bio! 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the american beauty salesman essay, conclusive significance of isb scholarship, a prior judicial record, and too much like the findings subject to american and death, Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.#8221; Id. Isb Scholarship Essay! 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of beauty of a salesman, his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. First, an offense is not a #8220;violent felony#8221; unless it is statement book night, #8220;punishable by and death of a salesman imprisonment for a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, § 921(a)(20).

In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is discharged from Department of Youth Services (#8220;DYS#8221;) 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 checker turnitin, not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of beauty and death salesman essay, civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by thesis statement on the book state statutory law. See United States v. Of A! Caron, 77 F.3d 1, 4 n. 5 (1st Cir.

1996) (quoting United States v. Isb Scholarship! Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from DYS was accomplished by beauty of a essay statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of be banned essay, a felony or adjudicated a youthful offender from obtaining a license to beauty and death, 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 thinking, § 921(a)(20) exception. American Beauty And Death Of A Salesman! 16. Plagiarize Checker Turnitin! The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. American Beauty Salesman! He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for the trying the case.

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

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American Beauty And Death Of A Salesman Essay

Easy Going Person Essays and Research Papers. Akbar (Listen) before going to Ruku. Beauty Salesman! While in Ruku, recite the following supplication 3, 5, 7, 9, 11 or more times. Make it an odd . number.Transliteration: Sub-hana Rabbi-al 'ajeem.Translation: Glory to my Lord the Exalted.Listen | DownloadQawmah (Standing After Ruku)Transliteration: Sami 'allah hu liman hamida. Rab-bana lakal hamd.Translation: Verily Allah listens to one who praises Him. Oh our Lord, all praises be to you.Listen | DownloadFirst Sajdah (Prostration)Before going to the Sajdah, recite. Al-Fatiha , Allah , God 1585 Words | 5 Pages.

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?How to identify and discern a person -07102012 We are ministering and thinking talking to people all the time. And Death Of A Essay! We are meeting people everywhere and . anywhere. We talk about and creativity fellowship, it is people; we talk about church, it is people. When we talk about business, we are meeting with people. When we go shopping we are meeting people too. And Death Of A! So, all the thesis statement on the, time we are in contact with people. That is why we need to know how to discern. If we don’t discern we touch the live wire. When we touch the live wire we can.

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I was raised in american and death salesman, a broken down apartment, by my single mother. She tried her . best to support my sister and me. There were five apartments in each complex. There must have been at least ten trashy buildings pushed together by critical thinking and creativity government funding. Each apartment had up to american essay, ten people hiding away in it. There were enough people to create our own city.

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What he lacks are Jack’s traits; the agility, survival instincts and drive. And what Ralph brings to the table is american of a salesman essay, very important as well. Diplomacy skills, easy going nature, and persistence. If you combine all of ap bio these positive characteristics together, you get more or less, a “Perfect Person .” Piggy is american essay, one of the first characters. Personality psychology , The Order 1061 Words | 3 Pages. No.

Minors can submit a petition for asylum in isb scholarship, the United States, because the Supreme Court feels that application for american and death of a salesman asylum cannot be made against . the wishes of a parent, if the child lacks the mental capacity to request asylum. A third person cannot speak on the behalf of a minor because it is the right of the parent to speak on behalf of his child in argumentative essay animal, the court. Of A Essay! Statement of Facts Jane is 14 years old. She has Canadian citizenship and has no dual citizenship with. Appeal , Elian Gonzalez affair , Human rights 2026 Words | 7 Pages. or gift? I won’t exactly disagree but whichever the critical thinking and creativity, case might be, becoming a people person can be learned and mastered when certain . principles are practised over time.

So, I am going to share some important points with you right now. Things you can do to american beauty of a, connect and relate with people more than ever. If you become consistent with these practices, you will find out critical, that you will become a sort of person others want to american beauty of a salesman, be around. Here are the ap bio, points: 1. Remember People’s Name One of. 2006 singles , The Next Time , Want 2002 Words | 7 Pages. rldTexts convey the challenges and rewards face by individuals coming into the world. A Person moving into of a salesman a new phase of life it can result in . growth to book, a new sense of maturity and american of a essay development for the specific person . This is evident in the Bildungsroman texts “Billy Elliot” (2000) by Stephen Daldry and “Ranger’s Apprentice: the Ruins of essay animal testing outline Gorlan” by John Flanagan which is american and death salesman, highly effective in showing rewards and challenges faced when overcoming obstacles. Plagiarize Checker! The challenges in american of a essay, Billy Elliot spring from. Africa , BAFTA Award for essay Best Film , Billy Elliot 1031 Words | 3 Pages.

what are you going to do with that. ? The Chronicle Review October 3, 2010 What Are You Going to american and death essay, Do With That? Katherine Streeter for The Chronicle Review By William . Deresiewicz The essay below is isb scholarship, adapted from a talk delivered to american and death of a essay, a freshman class at Stanford University in May. The question my title poses, of course, is the one that is classically aimed at humanities majors. On The! What practical value could there possibly be in studying literature or art or philosophy? So you must be wondering why I'm bothering to raise it here. College , Harvard University , High school 3036 Words | 7 Pages. isn’t as easy as one thinks it to american beauty salesman essay, be. What’s more, the never-ending homework that accompanies the students only adds to checker turnitin, the hatred towards . school. Undoubtedly, school is american beauty and death of a salesman essay, annoying and plagiarize turnitin boring with a lot of effort going towards attaining good grades.

Nonetheless, school is beauty and death of a, highly important; hence, the reason why your parents pressurize you to work so hard. Giving school a miss means that you are missing out an important stage of your life. Thus, out of the ap bio, few negatives that come across going to school. College , Compulsory education , Education 1014 Words | 3 Pages. Going Back To College, Is It Worth The Risks?

Is it necessary to american of a, get a college degree in today’s . society? Millions of adults ask their self the same question day after day. Returning to college in today’s busy world creates many challenges for adult students, however the thesis on the book, value of a brighter future makes it all worth the while. With today’s changing workforce many adults are researching the advantages and disadvantages of going back to beauty of a salesman, college. The good. Academic degree , Bachelor's degree , College 1100 Words | 4 Pages. Going public is the peak of efficiency in critical thinking, the life of a company. Becoming public introduces a business to american and death of a salesman essay, capital gains from initial public . offerings witch are traded on an open market. There is also a cost to have this access and potential loss of control over the business when a formally private company goes public. The requirements for going public are governed by regulations enforced by critical state local and american and death of a salesman essay federal laws.

Public companies have the obligation of additional reporting and procedures in. Asset , Cash , Cash register 1074 Words | 4 Pages. Easy A In the thesis statement on the book, movie, Easy A, Olive ‘s entire life takes a turn for the worst based off a little white lie. When . rumors get around that she’s sleeping with everyone, she keeps them going and starts accepting profit for the lies. After portraying the image of a whore, Olive gets fed up with all the gossip and tells everyone the truth. In the midst of it all, Olive compares herself to Hester Prynne. Easy A is an update of the american and death salesman essay, Scarlet Letter with a John Hughes twist. Easy A is an update. Emma Stone , Hester Prynne , John Hughes 759 Words | 3 Pages.

Going Home In the piece “On Going Home” Joan Didion uses many literary techniques to emphasis her sentences. Didion’s use of . quotation marks around specific words stands out first to thinking, the reader. The quotation marks suggest that the meaning she was trying to come across was a bit different from the original meaning the word normally would carry. For example when Didion quotes the words “happy, home, and normal”, they are usually described as positive meaning. But it depends on how the american beauty of a, reader takes. Compound , Linguistics , Meaning of life 831 Words | 3 Pages. Description of a person Jerry, My Boyfriend It is only when an isb scholarship, individual gets to know a person on a deeper level that he . American And Death Salesman! or she can actually appreciate and value that person’s inner beauty.

Although physical attraction is important--and it is the first impression one always gets--it does not express an individual's inner attributes. My boyfriend, Jerry, represents both internal and external beauty. Critical Thinking! Jerry is not as towering as Michael Jordan; however, he is not as short as Michael J. Fox. Brown hair , Interpersonal attraction , People 849 Words | 3 Pages. disadvantages. One is that for it to beauty of a salesman essay, work effectively it needs to be undertaken regularly but often businesses do not put the time or money into testing outline it. American And Death Of A! . Critical Thinking And Creativity! Furthermore this technique of analysis is used to aid decision making so it needs to be very detailed if it is going to be of use; the data can often be overgeneralised and simple so not beneficial. American And Death Of A Salesman Essay! Political European Union regulations on smoking essay, carbon emission reduction.

Threats from a terrorist attack in Europe are increasing. Hoshin Kanri , Management , Organization 1640 Words | 5 Pages. Going to college is american beauty and death of a salesman essay, a life changer. the United State is a great example of a person who went to college and became very successful. A person who decides to continue . Plagiarize Checker! their education after high school will benefit from american beauty and death salesman it. Going to college, it will help an individual to develop skills that would help them in the future. A college degree will also help an individual show that he or she has ambition.

An individual who gets a college degree will be able to get more jobs. It will also help a person be happy. Therefore young individuals that. Academic degree , College , Diploma 1056 Words | 3 Pages. Amanda Spiker Rough Draft Being a mother My first thoughts about animal outline becoming a mother were not what you [Word choice. You and beauty of a salesman essay your mean general humanity. . In academic writing, second person (you and animal testing your) should be replaced with a third person pronoun (he, she, it, one, and they). ] expect a mother to think. I remember thinking to myself “I’m not ready for this, how can I be a mother at such a young age?” I was still in high school when I found out I was pregnant. To be exact the and death salesman, day was November. ABBA , Grammatical person , I Do, I Do, I Do, I Do, I Do 1437 Words | 4 Pages. positive and negative consequences of our actions, and deciding whether the ‘reward’ is worth the thesis night, ‘cost’.

This ability to predict consequences of american and death of a essay our actions . isn’t shared by the lower animals, and is pivotal in checker, making the distinction between a person and a non- person . We have the ability to justify our beliefs and beauty and death essay actions and to enter into reasoned dialogue with others. Rationality also leads to the ability to evaluate experience and checker draw logical, considered conclusions which will influence our actions. Human , Humans , Individual 2110 Words | 6 Pages. Going away: The Dominant Strategy Humans often question their reality. We share a common, physical reality and create mental realities within . ourselves; these mentally created worlds are purely in our heads and can only be entered by the individuals who created them. And Death! Upon entering their mental reality, a person can experience what appears on the outside to look like a detachment from the common physical reality; they cannot consciously function in two realities simultaneously. Turnitin! Some people experience.

Christopher McCandless , Into the Wild , Jon Krakauer 1816 Words | 5 Pages. 1. Target Markets – The market of this area is covered by only two large retail stores other than the local grocers. Among them EasyDay enjoys almost a . American Beauty Of A Essay! monopolistic status as they focus on making the basic experience of shopping an ap bio essays cell, easy and beauty delightful one and hence inducing a sense of well being in essay, the customer. The other outlet i.e. the Vishal Mega Mart loses ground on the service part, as a part of the process we actually went on american beauty and death of a essay, to be the customers and experienced a lack of service in the latter. Customer service , Online shopping , Product 753 Words | 3 Pages. ? Person -centred 2.1 A physical disability is any disability that affects the physical function of one or more limbs. Physical disabilities . can be either congenital or acquired after birth due to an accident or disease. 2.2 Describe the following terminology used in relation to physical disability: Congenital Acquired Neurological A congenital disability is a medical condition which you are born with, congenital disorders are caused by checker development problems with the fetus before birth. Developmental disability , Disability , Disability rights movement 844 Words | 3 Pages. EasyJet EasyJet Airline Company Limited headquartered at London Luton Airport is the UK’s largest budget airline measured . by number of passengers carried, operating domestic and international scheduled services. Easy Jet has grown through a combination of of a acquisitions and base openings fuelled by consumer demand for low-cost air travel.

Ryanair another budget airline is currently Easyjet’s biggest competition. EasyJet has adapted cost-cutting measures such as not. Airline , Airlines , Avianca 1113 Words | 4 Pages. ?NAME: ADE AJOSE COURSE: ENGLISH COMPOSITION 1 INSTRUCTOR: DR JACOB SIZI DATE: 02-09-2014 A SUCCESSFUL PERSON . What really is success? What makes an individual successful? According to Merriam-Webster mini Dictionary, success is defined as, “the act of achieving something good that you have been trying to do, or something that has a god result or is very popular. The word ‘success’ originated in essays, the mid-16th century from Latin ‘successus’ , from the verb ‘succedere’. 2009 albums , 2010 FIFA World Cup , Failure 831 Words | 3 Pages. and keeps advancing.

My mother is the person who I admire the most, looking up at her as my idol, and listen to her is my mother. By . interviewing Mrs. Suwipha Charoensin gives me an idea that to change because of someone who is very special is beauty of a, not difficult and it even gives someone a new life. My mother changes her attitude because of my father from a stubborn and hot tempered woman to calm and steady person . To me I think it is very amazing that one person can change her nature which had stuck. 2002 albums , Change , Family 1512 Words | 4 Pages.

inarticulate,? which is nothing like the way her husband is(p. 134). This allows the reader to see a side of Joan's husband, obviously he doesn't want to thinking and creativity, be . around people who change his wife into a person that he does not know, but to not even go to his daughter's birthday demonstrates that he is perhaps a difficult person himself. Joan's home-life is confusing with her family. She says that it is dusty? and full of mementos? from her life, which her husband holds no value to(p.134). And Death Of A Salesman! Living in checker turnitin, a dusty. Family , Grandparent 941 Words | 3 Pages.

Sales Person Interview [pic] Name: Supreet Kaur . (821-396-355) Interviewee: Balaji .G [pic] I interviewed one of my friends Balaji.G who is working in DHL as Assistant Manager. He is beauty of a salesman, having 7 years experience in logistics Industry. Book Night! Basically his job is to Sell Ocean and Airfreight to Small and Medium Enterprises. I took his Interview on phone as he is working in Chennai. Cargo , Consultative selling , Customer 1027 Words | 4 Pages. Person: How to of a, Win Friends and Influence People.

Age was considered to his best Work. The basic theme of the be banned, book is that to make friends and influence people, one should not antagonize nor control . people. This is undoubtedly a universal truth. Salesman! Real friends don’t do these types of things. It's easy to see why this advice would come as a revelation to isb scholarship essay, many nowadays. Today, winning friends or influence people has changed from how it was back then. Carnegie ideas still apply but not all people use the same way.

After reading this book you should. Celebrity , Complaint , Dale Carnegie 1647 Words | 4 Pages. Easy A social psychology final paper. ? Easy A 12/6/13 SOPS 101 Professor Wight The movie I chose was Easy A because there are . Beauty Of A Essay! many psychological concepts this movie that relate to real-life events and it covers many theories we learned about in this class. Easy A was released in 2010 and directed by Will Gluck. It’s about a teenage girl named Olive who accidentally admits to her friend Rhi that she was having sexual relations with boys. She felt pressured into smoking be banned lying since her friend had already engaged.

Cognitive dissonance , Human sexual behavior , Leon Festinger 1323 Words | 6 Pages. once their children have reached adulthood? Although “ Going Green” involves more effort; it is our responsibility to make the generation and and death of a . Smoking Should Be Banned Essay! future generations aware of the consequences they will render if we all choose convenience over american beauty salesman intelligence. Why go green? We are running out of natural resources. This will directly affect our future generation. The demand for thesis statement energy is higher than the supply and our future generations will suffer. By “ Going Green” and of a essay saving energy you will have more money in. Air pollution , Energy , Environmental movement 1287 Words | 3 Pages. one thing that would give a person their identity.

How would one describe someone's identity? Is it the way they look, or the essay, way they . American Beauty And Death Of A Essay! talk, who they associate themselves with, or none of the thinking and creativity, above? To me someone's identity is a part of their being, them as a whole. Beauty! Nobody could ever physically see it, hold it, or touch it, but it's there. It's a pilot in your decision making, thought process, dreams, and ideas. One may think something is terrible while another person may laugh. The only explanation. Girl , Human , Husband 2251 Words | 6 Pages. Graded Assignment Person of the Decade By the early 1990s, Soviet domination in thesis statement on the book night, Eastern Europe had ended. Beauty! A number of individuals played a . part in the collapse of the Soviet Union.

Understanding the role that each played is an essays division, important part of understanding the process that changed European politics and beauty and death geography. (50 points) 1. Thesis Book Night! Using the information from the beauty and death of a essay, reading and from your online research, decide who you think should be named “ Person of the Decade.” Then write a letter to the Time. Bill Melinda Gates Foundation , Bill Gates , Computer 1037 Words | 4 Pages. Working, parenting, and going to school are tough Is it possible to thesis statement book night, accomplish my goals and still meet everyday responsibilities? Working a . full-time job, being a single parent, and going to college are emotionally draining. It’s stressful, frustrating, and hard to be positive at times when there are so many demands on american beauty and death of a essay, time. Goals can be accomplished and still meet everyday responsibilities. Working, parenting, and going to animal testing outline, school are tough. Working a full time job is american beauty and death salesman, demanding.

Getting up. Distance education , Employment classifications , Full-time 990 Words | 3 Pages. trespass to persons and statement on the night three type of trespass, which are assault, battery and false imprisonment. These three types of trespass to . person must have a few of elements in american and death of a salesman, order to establish. Statement! Therefore I will explain the elements and emphasis on intention of each trespass to person . Besides, I will give cases and examples for american of a essay easy understanding. After that, I will discuss whether intention still important nowadays and essays whether intention necessary to establish the tort of american beauty and death of a salesman essay trespass to persons ? Lastly I.

Battery , Common law , Complaint 2470 Words | 4 Pages. also examine the origin of isb scholarship rehabilitation and the different options that they get for american salesman parole. When we think about prisoner rehabilitation it is seen as a . form of treatment. Simply because when a person goes through rehab, according to should be banned, the definition, it is a form of american of a salesman treatment used to store a person back to good life. So when prisoners go through rehabilitation they are taught how to live a productive life free of thesis on the crime among society. Besides being a cost to the prisons and to taxpayers it affects.

Community service , Crime , Criminal justice 1085 Words | 3 Pages.

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American Beauty And Death Of A Salesman Essay

President Obama's farewell speech - live updates. Last Updated Jan 10, 2017 9:57 PM EST. CBS News’ Emily Schultheis, Jillian Hughes and essay Charlie Brooks contributed to this live blog. 9:55 p.m. ET Mr. Obama concluded by quoting the slogan for his first campaign, “Yes We Can.” “I am asking you to hold fast to that faith written into our founding documents, that idea whispered by slaves and checker turnitin abolitionists, that spirit sung by and death of a salesman immigrants and homesteaders and night those who marched for justice, that creed reaffirmed by those who planted flags from foreign battlefields to the surface of the moon, a creed at the core of every American whose story is not yet written,” he said. “Yes we can. American Of A Salesman Essay! Yes we did. Yes we can.” 9:52 p.m. ET Thanking his staff and the legions of volunteers who helped his 2008 and 2012 campaigns, Mr.

Obama said: “You did change the world.” “To all of you out there every organizer who moved to an unfamiliar town and kind family who welcomed them in, every volunteer who knocked on doors, every young person who cast a ballot for the first time, every American who lived and breathed the hard work of should be banned, change you are the best supporters and organizers anybody could hope for, and I will be forever grateful,” he said. “Because you did change the world. You did.” 9:50 p.m. ET Mr. Beauty And Death Of A Salesman! Obama next thanked Vice President Joe Biden, saying he has become like a “brother” to him. Biden, “the scrappy kid from Scranton who became Delaware’s favorite son: you were the first decision I made as a nominee, and essays cell it was the and death salesman, best,” he said. “Not just because you have been a great Vice President, but because in the bargain, I gained a brother.” 9:47 p.m. Smoking Essay! ET Wiping back tears, Mr. Obama thanked his wife and two daughters. “For the and death of a salesman, past twenty-five years, you have been not only thesis book my wife and mother of my children, you have been my best friend,” he said to Michelle Obama, sitting in the audience. “You took on a role you didn’t ask for and made it your own with grace and with grit and american beauty and death salesman essay with style and critical and creativity with humor.

You made the american beauty essay, White House a place that belongs to everybody. And a new generation sets its sights higher because it has you as a role model.” To his daughters, Sasha and Malia, Mr. Obama said he has watched them become “amazing young women.” “Malia and Sasha, under the strangest of isb scholarship, circumstances, you have become two amazing young women, smart and beautiful, but more importantly, kind and thoughtful and full of passion,” he said. “You wore the burden of years in the spotlight so easily. Of all that I’ve done in my life, I’m most proud to be your dad.”

9:43 p.m. ET Mr. Obama said the most important title in a democracy is that of american beauty of a salesman, a “citizen” -- and laid a blueprint for how people can continue to be involved in safeguarding American democracy. “If you’re tired of arguing with strangers on the internet, try talking with one of them in real life,” he said. “If something needs fixing, then lace up your shoes and do some organizing. If you’re disappointed by your elected officials, grab a clipboard, get some signatures, and run for argumentative animal testing, office yourself.

Show up. Dive in. Persevere.” He acknowledged there are ups and downs for those involved in politics and the business of democracy. “Sometimes you’ll win. Sometimes you’ll lose. Presuming a reservoir of salesman essay, goodness in others can be a risk, and there will be times when the process will disappoint you,” he said. “But for essay, those of us fortunate enough to have been a part of this work, to see it up close, let me tell you, it can energize and inspire.

And more often than not, your faith in America and in american salesman Americans will be confirmed. Mine sure has been.” 9:38 p.m. Thesis On The! ET Americans cannot and should not take democracy for granted, Mr. Obama said. “Our democracy is threatened whenever we take it for granted,” he said. “All of us, regardless of party, should throw ourselves into the task of rebuilding our democratic institutions.” Among the of a salesman, issues he raised were expanding voting rights, increasing transparency in essay animal government and american beauty and death of a essay reversing electoral gerrymandering that’s contributed to critical and creativity increasing polarization in Congress. 9:36 p.m. ET Mr. Obama said democracy is most challenged when people “give in to fear,” urging the country to of a salesman essay avoid “a weakening of the values that make us who we are.” “That’s why, for smoking essay, the past eight years, I’ve worked to put the fight against terrorism on a firmer legal footing,” he said. “That’s why we’ve ended torture, worked to close Gitmo, and american beauty of a salesman essay reform our laws governing surveillance to protect privacy and civil liberties.”

“That’s why I reject discrimination against Muslim Americans,” he continued, to applause. “That’s why we cannot withdraw from big global fights to expand democracy, and human rights, and women’s rights, and LGBT rights no matter how imperfect our efforts, no matter how expedient ignoring such values may seem. That’s part of defending America. Smoking Be Banned! For the fight against extremism and intolerance and sectarianism and chauvinism are of a piece with the fight against authoritarianism and nationalist aggression.” 9:33 p.m . ET Next, Mr. Obama turned to the issue of terrorism -- both at home and american abroad. “Because of the extraordinary courage of our men and women in plagiarize checker turnitin uniform, and the intelligence officers, law enforcement, and diplomats who support them, no foreign terrorist organization has successfully planned and executed an attack on our homeland these past eight years,” he said. “And although Boston and Orlando remind us of how dangerous radicalization can be, our law enforcement agencies are more effective and vigilant than ever. Beauty And Death Essay! We’ve taken out tens of thousands of terrorists including Osama bin Laden. “The global coalition we’re leading against ISIL has taken out their leaders, and taken away about half their territory,” he continued. Be Banned Essay! “ISIL will be destroyed, and no one who threatens America will ever be safe.” 9:31 p.m. ET Nodding to the issue of climate change -- on which Mr. Trump is a self-described skeptic -- Mr.

Obama said it is essential that the U.S. continue its progress. “In just eight years, we’ve halved our dependence on foreign oil, doubled our renewable energy, and of a salesman led the world to an agreement that has the promise to save this planet,” he said. “But without bolder action, our children won’t have time to debate the existence of argumentative animal, climate change; they’ll be busy dealing with its effects: environmental disasters, economic disruptions, and waves of climate refugees seeking sanctuary.” Pretending the problem doesn’t exist “not only betrays future generations, it betrays the american beauty and death essay, essential spirit of this country,” Mr. Essay Animal! Obama continued. 9:28 p.m. ET Mr. Of A Essay! Obama urged people to find ways to keep from “talking past each other.” “Isn’t that part of what so often makes politics so dispiriting?” he asked. “How can elected officials rage about deficits when we propose to spend money on preschool for kids, but not when we’re cutting taxes for corporations? How do we excuse ethical lapses in our own party, but pounce when the other party does the same thing?

“It’s not just dishonest, this selective sorting of the ap bio cell, facts; it’s self-defeating,” he continued. “Because as my mom used to tell me, reality has a way of and death, catching up with you.” 9:26 p.m. ET Another threat to American democracy, Mr. Obama said, is people’s collective retreat into their own “bubbles.” “The rise of thinking, naked partisanship, increasing economic and american beauty of a salesman essay regional stratification, the splintering of our media into a channel for smoking essay, every taste all this makes this great sorting seem natural, even inevitable,” he said. “And increasingly, we become so secure in our bubbles that we accept only information, whether true or not, that fits our opinions, instead of basing our opinions on the evidence that’s out there.” 9:23 p.m. Beauty Of A! ET Mr. Smoking Should! Obama also spoke about the racial tensions still plaguing the country, which have been put on display in recent months with clashes between the and death of a salesman, police and critical the African American community.

“After my election, there was talk of a post-racial America,” he said. “Such a vision, however well-intended, was never realistic. For race remains a potent and often divisive force in our society.” While progress has been made, he continued, “we’re not where we need to american and death of a be.” “All of us have more work to do,” Mr. Obama said. “After all, if every economic issue is framed as a struggle between a hardworking white middle class and undeserving minorities, then workers of all shades will be left fighting for scraps while the ap bio cell, wealthy withdraw further into their private enclaves.” 9:21 p.m. ET As congressional Republicans debate their options for repealing and replacing the american and death salesman, Affordable Care Act, Mr. Obama noted the progress that’s been made on health care -- and thinking and creativity challenged Republicans to come up with something better. “Health care costs are rising at the slowest rate in and death of a essay fifty years,” he said. “And if anyone can put together a plan that is demonstrably better than the essay testing, improvements we’ve made to our health care system that covers as many people at and death of a essay, less cost I will publicly support it.” 9:19 p.m. ET Mr.

Obama framed his remarks as a look at the “state of our democracy,” outlining the challenges the country will face going forward. “A shrinking world, growing inequality; demographic change and the specter of critical, terrorism these forces haven’t just tested our security and prosperity, but they’re testing our democracy as well,” he said. “And how we meet these challenges to our democracy will determine our ability to educate our kids, and create good jobs, and protect our homeland.” 9:14 p.m. ET Acknowledging the american beauty and death essay, tradition of should essay, a peaceful transition of power, Mr. Obama said he had assured President-elect Donald Trump that there would be a smooth transition.

“In ten days, the world will witness a hallmark of our democracy: the peaceful transfer of power from american and death of a one freely-elected president to the next,” he said, to boos from the audience. “I committed to President-Elect Trump that my administration would ensure the thinking and creativity, smoothest possible transition, just as President Bush did for american and death, me.” 9:13 p.m. ET In a nod to his legacy, Mr. Obama said the U.S. is “a better, stronger place” than it was when he took office. “If I had told you eight years ago that America would reverse a great recession, reboot our auto industry, and be banned essay unleash the longest stretch of job creation in our historyif I had told you that we would open up a new chapter with the american beauty of a essay, Cuban people, shut down Iran’s nuclear weapons program without firing a shot, and take out the mastermind of 9/11if I had told you that we would win marriage equality, and secure the right to critical thinking health insurance for another 20 million of our fellow citizens you might have said our sights were set a little too high,” he said. “But that’s what we did.

That’s what you did.” 9:09 p.m. American Of A Salesman! ET Mr. Obama acknowledged democracy is not always easy, and said progress is sometimes “uneven.” “Yes, our progress has been uneven,” he said. Be Banned! “The work of democracy has always been hard, contentious and american and death essay sometimes bloody. For every two steps forward, it often feels we take one step back. But the long sweep of America has been defined by forward motion, a constant widening of isb scholarship essay, our founding creed to embrace all, and beauty salesman essay not just some.” 9:04 p.m ET Mr. Obama was met with loud, sustained cheers when he took the stage.

After telling the crowd to quiet down -- “we’re on live TV here, I’ve got to move,” he said -- Mr. Argumentative Essay Testing! Obama quipped: “You can tell that I’m a lame duck because nobody’s following instructions.” 9:02 p.m. ET President Obama takes the stage at McCormack Place in Chicago. “Hello Chicago,” he said. American Beauty And Death Essay! “It’s good to isb scholarship be home.” 6:35 p.m. ET When he takes the stage tonight, President Obama will talk about how his youth in Chicago helped show him the way to effect real change in the United States, according to speech excerpts released by the White House. “I first came to Chicago when I was in my early twenties, still trying to figure out who I was; still searching for beauty of a salesman, a purpose to my life,” he will say. “It was in neighborhoods not far from here where I began working with church groups in the shadows of closed steel mills.

It was on these streets where I witnessed the essays cell division, power of faith, and the quiet dignity of working people in american beauty and death the face of struggle and loss. “This is where I learned that change only happens when ordinary people get involved, get engaged, and come together to statement demand it,” Mr. Obama will continue. “After eight years as your President, I still believe that. And it’s not just my belief. It’s the american beauty of a salesman essay, beating heart of our American idea our bold experiment in self-government.” 1 p.m.

ET Beginning with George Washington in 1796, it is a time-honored tradition for the President of the United States to give a farewell address. Isb Scholarship Essay! President Obama will continue that tradition on Tuesday when he speaks in essay Chicago at statement book, McCormack Place at 9 p.m. American And Death Of A Salesman Essay! ET. CBSN coverage of Obama’s farewell speech begins at 7 p.m. ET. According to Mr. Obama’s chief of staff, Dennis McDonough, he chose Chicago because “this is a place where working on the South Side of Chicago and the neighborhoods in the shadows of the abandoned steel mills, as a community organizer with people who had been knocked out of jobs that theretofore had been real paths to the middle class, that he recognized that he had a gift for organizing.” His message to Americans, McDonough told CBS News’ Charlie Rose, is to keep fighting for what you believe in. “He had a gift for getting people working together towards the same goal. Essay Animal Outline! And I think that’s what you’ll hear a lot about from the salesman essay, president tomorrow, the importance of sticking together, working together, standing up for what you believe in, and then fighting like hell for it.”

In his eight years in office, President Obama left his mark on isb scholarship essay many different aspects of american and death of a essay, American life. Vice President Joe Biden and Chicago Mayor Rahm Emanuel, who was Mr. Obama’s first White House chief of smoking should be banned essay, staff, are among the beauty salesman essay, Democratic officials who plan to attend. Mr. Isb Scholarship! Obama’s address also has some heavyweight musical talent in the lineup -- Pearl Jam lead singer Eddie Vedder will be be performing with Voice of and death salesman, Chicago, according to statement on the book night a tweet. You can watch the speech at 9 p.m. on CBSN and CBS, among other broadcast and cable news channels. Bannon: McConnell told Trump to beauty back off Drain the Swamp talk.

Steve Bannon tells 60 Minutes that Majority Leader Mitch McConnell told Trump to back off his Drain the Swamp talk -- and says the GOP establishment is trying to nullify Trump's win. A look at what Melania Trump has done since her husband became president.