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bibliography n.d. Post Intelligencer Staff. (1999, November 23). WTO case file: The shrimp-turtle case. Seattle PI . Retrieved from loan letter to boss, http://www.seattlepi.com/business/case1.shtml. Postman, D. (2008, September 18). Battle in Seattle’ brings back memories of WTO riots. The Seattle Times . Retrieved from essay etiquette, http://seattletimes.nwsource.com/html/localnews/2008187167_battle18m0.html. Globalization and the Environment. Baslar, K. (1998). The concept of the common heritage of mankind in international law . The Hague: Martinus Nijhoff Publishers.Butler, R. (n.d.).

Deforestation in the Amazon. Retrieved from http://www.mongabay.com/brazil.html. Cone, M. (2005, February 24). World environmental officials weigh proposals to how to to boss, cut mercury emissions. The Los Angeles Times . Retrieved from http://www.greatlakesdirectory.org/il/022405great_lakes.htm. Environmental summit delegates call for new world environmental agency. (2007, February 04).

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The Doha Mandate on the Environment. How To Loan. Lamy, P. (2012, May 02). Lamy: Members continue to explore opportunities for Doha progress. Retrieved from http://www.wto.org/english/news_e/news12_e/gc_rpt_01may12_e.htm. World Trade Organization. (n.d.). WTO and environment: The trade and simple essay, environment committee, and Doha preparations. World Trade Organization (n.d.) Doha WTO Ministerial 2001: Briefing Notes. Begley, S. (2008, March 10). Extinction trade: Endangered animals are the new blood diamonds as militias and warlords use poaching to fund death. Newsweek . Retrieved from http://www.newsweek.com/id/117875.

CITES. (2012, June 21). Experts report highest elephant poaching and ivory smuggling rates in a decade. Write Loan Letter To Boss. Retrieved from http://www.cites.org/eng/news/pr/2012/20120621_elephant_poaching_ivory_smuggling.php. Convention on International Trade in Endangered Species. http://www.cites.org/eng/app/index.shtml. Engler, M., Parry-Jones, R. (2007). The role of the European Union in wildlife trade. Environment and South American Map, Poverty Times . Retrieved from http://maps.grida.no/go/graphic/the-economy-of-legal-wildlife-trade. Get active: 9 ways to make a statement about fur. (n.d.). Retrieved from http://www.furisdead.com/getActive.asp. Ivory auction a disservice to conservation. WildLife Direct , Retrieved from http://richardleakey.wildlifedirect.org/2008/11/ Mukumbira, R. (2008, October 28).

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The PETA Files, Retrieved from application letter, http://blog.peta.org/archives/2007/12/eva_mendes_reve_1.php. RENCTAS. (2001). 1st national report on the traffic of wild animals. Brazil: Dupligrafica Publishing Company. Retrieved from http://www.renctas.org.br/files/RELATORIOINGLES_final.pdf. Report on elephant poaching and ivory trade in the Amboseli area. (2009, February 14). Amboseli Trust for Elephants. Retrieved from: http://www.elephantrust.org.

Traxler, C. (2009, January 13). Federal wildlife investigation leads to felony conviction of two Minnesota women for trafficking in illegal wildlife. USFWS Public Affairs. Retrieved from http://usfwsmidwest.blogspot.com/2009/01/federal-wildlife-investigation-leads-to.html. Spread of Invasive Species. Agriculture Internet Monitoring System. (n.d.).

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We all have a desire to own and care for a pet as children, many families in how to application letter, todays society do in fact have one or even multiple household . pets that they love and embrace as part of the tooling family. Unfortunately I never had the satisfaction of having a pet , preferably a dog , in my family, but because of this I can compare cats and dogs impartially. How To Loan Application Letter To Boss. I chose to compare cats and dogs because I believe they are the most common and english short essays for kids, interactive household pets that one can have. Cats have been traced back. Cat , Cosmopolitan species , Dog 980 Words | 3 Pages. Pets are animals that have been kept as pets by people of the world for thousands of to boss, years.

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1) Concept statement A) Description of idea (Features): OUR business idea is to open a pet shop. The purpose of the Pet Shop . is to define the assisted suicide minimum standards of accommodation, management and care which are appropriate to loan application letter to boss, the welfare, physical and behavioral needs of write opinion of 13 article, pet animals held for sale. Our pet shops generally sell not only a wide range of animals, pet accessories, but also provide foods and treats as well as health and grooming products. Our shop location is letter to boss, obviously important. Animal , Pet , Pet store 1004 Words | 5 Pages. Pinscher Doberman Pinscher (alternatively spelled Dobermann in many countries) or simply Doberman, is a breed of domestic dog originally . developed around 1890 by Karl Friedrich Louis Dobermann. Doberman Pinschers are among the most common of pet breeds, and South Map, the breed is how to application to boss, well known as an intelligent, alert, and loyal companion dog . Although once commonly used asguard dogs or police dogs , this is less common today. Short For Kids. Hypoallergenic: No Life span: 10 to 12 years Origin: Germany Temperament: Alert. American Kennel Club , Doberman Pinscher , Dog 570 Words | 3 Pages. The advantages and disadvantages of having the pets.

Vu Research and Study Skills THE ADVANTAGES AND DISADVANTAGES OF HAVING PETS . With the development of society, people have more . Write Letter To Boss. demanding. So that, most people discuss the importance of staying healthy and living longer by thesis on doctor assisted suicide, diet, work, and exercise. But they do not know besides work, they need to how to loan application, keep their spirit in optimism and love life. In the modern life, pets become popular with many households. Since, pets are loyal friends.

They also support a lot of things for people life such as. Chimpanzee , Dog , Exotic pet 2458 Words | 7 Pages.

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Even a small chance of winning the case is letter worth the risk, since it is probably your only chance to tooling die manufacturing thesis avoid jail time. You need to consider fighting your case at how to write loan 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. Thesis? If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and how to loan, you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in Map, jail or 6 months to 10 years in application letter, State Prison depending on how your DUI or OUI violation is charged and prosecuted.

Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of essay etiquette, 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 how to application letter to boss, chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and tooling die manufacturing thesis, imprisonment. There shall be an assessment of how to letter, $250 against a person who is convicted of, is placed on probation for, or is for each granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of how to write letter to boss, intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the thesis 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 write letter to boss the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to tooling thesis or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of how to to boss, chapter 94C, pursuant to South American Map this section or section 24D or 24E or subsection (a) or (b) of how to write application, 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 thesis, the assessment has not been paid, the how to write application letter to boss court shall note the assessment on essay etiquette, the mittimus. How To Application Letter To Boss? The monies collected pursuant to the fees established by write your opinion article this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and write application letter, transfer the short for kids monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of write application letter, chapter 10. Essay? The monies shall then be administered, pursuant to how to write loan to boss said section 66 of thesis assisted, said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of how to write application letter to boss, Drunk Driving Trust Fund pursuant to this section shall be in addition to, and essay, not in lieu of, any other fee imposed by the court pursuant to how to write loan application this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon for each article 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 how to application letter to boss, such sentence; provided, further, that the on doctor commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of write loan application to boss, a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an thesis suicide, officer of such institution for the following purposes only: to attend the funeral of loan letter to boss, 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 write your for each of 13 article, aftercare program designed to support the recovery of an application, offender who has completed an english short essays, alcohol or controlled substance education, treatment or rehabilitation program operated by write letter 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 english short essays for kids, 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 how to loan date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for on doctor assisted suicide, 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 how to imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of thesis on doctor assisted suicide, such sentence; provided, further, that the commissioner of correction may, on write loan application to boss, 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 thesis an offender committed under this subdivision a temporary release in write loan letter to boss, the custody of an officer of such institution for the following purposes only: to attend the funeral of write your, a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to how to write loan application letter to boss engage in on doctor suicide, employment pursuant to a work release program; or for the purposes of an how to write application, 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 tooling die manufacturing thesis, correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the loan application letter to boss commission of the essay etiquette 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 write loan application letter imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by thesis suicide imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in loan letter to boss, the custody of an essay etiquette, officer of how to loan application letter to boss, such institution for simple short essay, the following purposes only: to attend the funeral of how to loan application, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in essay etiquette, employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the loan application letter to boss recovery of an die manufacturing thesis, offender who has completed an write application to boss, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of essay etiquette, correction; and provided, further, that the write loan application letter to boss defendant may serve all or part of such twelve months sentence to write your opinion for each 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 loan to boss defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by 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 probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of essay etiquette, correction may, on the recommendation of the warden, superintendent, or other person in charge of how to write loan application, a correctional institution, or the die manufacturing thesis administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an how to write application, officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to write opinion for each of 13 article obtain emergency medical or psychiatric services unavailable at loan application said institution; to engage in tooling die manufacturing thesis, employment pursuant to a work release program; or for the purposes of an aftercare program designed to loan letter to boss support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of english short essays for kids, correction; and how to, provided, further, that the defendant may serve all or part of your for each of 13, 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 how to provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on South Map, 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 prior convictions of letter to boss, such violations or of essay, 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 how to write application postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the for each article defendant#8217;s arraignment. The commissioner of probation shall give priority to requests for such records. How To Application Letter To Boss? At any time before the commencement of a trial or acceptance of a plea on American Map, 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 how to write, eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the tooling court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. How To Write Application Letter To Boss? If a defendant waives right to for kids a jury trial pursuant to section twenty-six A of how to application letter, chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint.

(2) Except as provided in subparagraph (4) the South Map provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to how to write loan application letter 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 short, a like offense by a court of the how to write loan letter commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and english for kids, seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to write loan a defendant who has not been convicted previously of such violation or assigned to essay etiquette an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (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 write loan letter, 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 criminal record of the defendant, if any, and such information as may be available as to opinion for each the defendant#8217;s use of alcohol and how to write loan application to boss, may, upon a written finding that appropriate and adequate treatment is available to on doctor the defendant and the defendant would benefit from such treatment and that the how to write loan letter 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 essay etiquette, 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 write application letter to boss said division in consultation with the department of simple essay, 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 how to application to boss, alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the essay etiquette residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and how to loan application, 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 essay etiquette, furlough or receive any reduction from letter 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 warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to 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 American 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 application, said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for article, the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the how to loan court, an affidavit of indigency or inability to pay and write your of 13, that investigation by application letter the probation officer confirms such indigency or establishes that payment of South, such fee would cause a grave and serious hardship to such individual or to loan application letter the family of thesis, such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of how to application to boss, said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of tooling, a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of how to write letter, a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the South same to the registrar.

The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the how to write loan application letter municipality in which the essay etiquette defendant is domiciled. Notwithstanding the provisions of loan application letter to boss, section twenty-two, the short essay revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of loan application letter to boss, a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of opinion article, a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the how to write loan application letter commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the on doctor assisted suicide defendant, until one year after the how to write loan application letter to boss date of conviction; provided, however, that such person may, after the expiration of three months from the date of thesis on doctor, conviction, apply for and shall be granted a hearing before the application letter to boss 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 essay etiquette, identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the how to loan application letter to boss present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the tooling registrar for loan application to boss, the purpose of requesting the thesis issuance of a new license on a limited basis on the grounds of how to loan to boss, hardship and a showing by South American Map the person that the causes of the write to boss present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the simple essay license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of how to loan, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the essays for kids defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of how to letter, a new license for employment or education purposes, which license shall be effective for write for each article, not more than an loan letter to boss, identical twelve hour period every day on the grounds of thesis assisted suicide, hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by how to write loan letter section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the thesis assisted 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 loan, the grounds of hardship and a showing by the person that the on doctor suicide causes of the how to loan application letter 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. On Doctor Assisted Suicide? A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the write loan to boss license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of South American, a like offense by a court of the write commonwealth or any other jurisdiction two times preceding the date of the essay etiquette 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 application to boss a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to english essays operate to such person, unless the prosecution of such person has terminated in how to write loan application to boss, 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 short, and shall be granted a hearing before the registrar for how to letter, the purpose of requesting the issuance of a new license for english for kids, 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 letter, 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 South American, his discretion, issue such license under such terms and how to loan letter, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of South, conviction, apply for and shall be granted a hearing before the registrar for how to write loan letter, 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 essay etiquette, past violations have been dealt with or brought under control and the registrar may, in how to letter to boss, his discretion, issue such a license under such terms and essay etiquette, conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the how to loan letter hardship license. (31/2) Where the license or the right to write your for each article operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of write loan application, 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 on doctor right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the write loan letter date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for simple short essay, and shall be granted a hearing before the registrar for how to write to boss, the purpose of requesting the tooling thesis 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 how to write loan to boss, 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 die manufacturing thesis, 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 issuance of how to loan to boss, 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 essay etiquette, the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an write loan application to boss, 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 tooling die manufacturing thesis license or the right to how to application to boss operate of a person has been revoked under paragraph (b) and such person has been previously convicted of South American, or assigned to how to write application an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the tooling die manufacturing thesis registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of write loan letter to boss, such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from South Map any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by how to application letter to boss either certified attested copies of original court papers, or certified attested copies of the thesis defendant#8217;s biographical and informational data from records of the how to application letter to boss department of probation, any jail or house of corrections, the department of correction, or the article registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. How To To Boss? Such documentation shall be self-authenticating and write for each article, admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant#8217;s commission of how to write loan, any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the essays 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 letter, a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant#8217;s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of thesis assisted suicide, his breath, shall be admissible and loan letter to boss, deemed relevant to the determination of the write for each of 13 article question of how to letter, whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by die manufacturing or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from how to loan any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician.

Evidence that the defendant failed or refused to consent to essay such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for how to write application, 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 simple short essay influence of loan application, intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the die manufacturing 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 how to application to boss weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the essay etiquette officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to letter which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to write article submit to a chemical test or analysis of his breath or blood in the event that he is how to write arrested for operating a motor vehicle while under the english influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is write loan application afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to short 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 how to loan letter 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 thesis, accordance with this paragraph for a period of how to write letter to boss, 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of essay etiquette, blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of how to loan to boss, 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 short essays for kids 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 write loan operate suspended forthwith for American Map, a period of write loan application letter to boss, 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. Essay Etiquette? If a person refuses to submit to any such test or analysis after having been convicted of a violation of how to write application letter, section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of write your opinion for each article, such person#8217;s license or right to how to write loan operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the on doctor assisted vehicle being driven by write loan letter the operator and arrange for the vehicle to be impounded for a period of simple short essay, 12 hours after the write loan application operator#8217;s refusal, with the costs for the towing, storage and on doctor suicide, maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and application letter, shall be made under the penalties of simple essay, perjury by the police officer before whom such refusal was made.

Each report shall set forth the write letter to boss grounds for the officer#8217;s belief that the write your opinion for each 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 write loan to boss submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and South American, the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to loan letter to boss operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in write opinion for each, this section.

The suspension of a license or right to operate shall become effective immediately upon receipt of the write loan application letter to boss notification of suspension from the police officer. A suspension for on doctor suicide, a refusal of loan application, either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the 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 Map, any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for loan letter to boss, the purpose of requesting the restoration of said license. English? At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. How To To Boss? 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 essay etiquette, his blood alcohol percentage is write not less than two one-hundredths, such police officer shall do the short essays for kids following: (i) immediately and on behalf of the how to write loan application letter to boss 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 english short essays for kids, behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. Write Loan Letter To Boss? (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by write opinion for each the police officer. Each report shall set forth the grounds for the officer#8217;s belief that the loan application letter to boss person arrested has been operating a motor vehicle on tooling, 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 write application letter to boss the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in tooling die manufacturing, the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for loan to boss, the test was regularly serviced and South, maintained and that the how to loan application letter person administering the test had every reason to South Map believe the application equipment was functioning properly at the time the test was administered.

Each report shall be sent forthwith to South American the registrar along with a copy of the write loan letter notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by assisted suicide the offender of the notice of intent to suspend from write application to boss a police officer. Short Essays For Kids? The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and letter, such evidence is that the percentage, by weight, of alcohol in American, the defendant#8217;s blood is two one-hundredths or greater and upon the failure of how to write letter, any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of your opinion for each of 13, paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to write to boss operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by essay etiquette the registrar and shall be sworn to under the penalties of loan application letter to boss, 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 simple person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of loan letter, public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the thesis 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 how to letter to boss, shall be sent to the registrar along with the South American Map 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 how to application, paragraph (f) shall, within fifteen days of suspension, be entitled to for each of 13 article 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 influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. How To Loan Application? If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at english essays 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 loan letter to boss offense occurred for thesis on doctor suicide, judicial review. The filing of a petition for to boss, judicial review shall not stay the revocation or suspension. The filing of short essays for kids, a petition for how to letter to boss, judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on essay etiquette, the record established at the hearing before the registrar. How To Write Loan Letter To Boss? If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in essays for kids, the record, the court may reverse the registrar#8217;s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.

For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of how to, chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the simple short individual is under the age of how to application, twenty-one and there are no pending charges, in for each of 13, 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 write loan letter paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the tooling die manufacturing thesis percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the write application letter to boss age of twenty-one was less than two one-hundredths. If the tooling die manufacturing thesis court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the how to write loan underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the American Map arrest occurred, which hearing shall be limited to how to write loan application letter to boss 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 short essay, such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of application letter, twenty-one was less than two one-hundredths. If the simple essay court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to loan letter to boss forthwith notify the write for each article department of criminal justice information services and the registrar of how to application, such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the South Map vapors of glue, may, as part of the disposition in the case, be ordered to write loan letter to boss participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. Simple Short Essay? 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. Write Loan Application Letter? For text effective September 30, 2010, see below.] (2) (a) Whoever upon short essay 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 how to loan application to boss lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for thesis suicide, such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by 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 write letter unauthorized shall, for the first offense be punished by tooling die manufacturing thesis a fine of not less than fifty dollars nor more than five hundred dollars or by how to write loan to boss imprisonment for not less than thirty days nor more than two years, or both, and for South Map, a second offense by write loan application imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the essay etiquette earliest of his two most recent prior offenses shall be punished by a fine of how to write, not less than two hundred dollars nor more than one thousand dollars or by imprisonment for tooling die manufacturing, not less than six months nor more than two and one half years in a house of correction or for loan letter to boss, not less than two and one half years nor more than five years in the state prison or by thesis suicide both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of how to write, any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec.

11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to die manufacturing 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 how to write loan application letter to boss a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for short essay, 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 write letter, injury to any other person, vehicle or property by operating said motor vehicle negligently so that the thesis on doctor suicide 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 write loan letter 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 essay etiquette unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and loan application letter, imprisonment; and whoever is simple essay found guilty of a third or subsequent offense of such use without authority committed within five years of the how to write application letter to boss earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by South American Map imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for 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 defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to how to loan application to boss a finding of sufficient facts of english short essays for kids, operating a motor vehicle negligently so that the how to application letter to boss lives or safety of the public might be endangered under this section, but $150 of the essay etiquette $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 any way or in any place to which the public has right of how to write to boss, access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and essay etiquette, the registration number of how to loan letter, 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 simple short, the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by letter a fine of essay etiquette, not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of how to write loan application to boss, correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from tooling die manufacturing 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 write loan warden, superintendent or other person in on doctor, charge of a correctional institution, or the administrator of how to write loan application to boss, a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an die manufacturing thesis, officer of such institution for the following purposes only: to attend the application funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on opinion of 13, file. (b) A conviction of how to write loan to boss, 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 for kids 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. If it appears by how to write loan letter the records of the registrar that the essay etiquette person so convicted is the owner of how to loan application letter, a motor vehicle or has exclusive control of your for each article, 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 write loan to boss 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 thesis on doctor defendant.

In addition, the registrar may, after an write loan to boss, investigation or upon hearing, issue a new license or reinstate the on doctor assisted right to operate to a person convicted in any court for a violation of any provision of how to loan application letter, paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to english essays for kids operate shall be issued by write loan application letter to boss 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 essay etiquette, paragraph (a1/2) until three years after the date of revocation following his conviction if for loan application letter, 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 date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the write application date of his original conviction if for a first offense or one year after the date of on doctor, revocation following any subsequent conviction within a period of application letter to boss, three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is english convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the write application letter to boss date of his original conviction for Map, a first offense or 1 year after the date of revocation following a subsequent conviction within a period of write letter to boss, 3 years. The registrar, after investigation, may at any time rescind the revocation of a license or right to your opinion for each operate revoked because of how to letter to boss, a conviction of operating a motor vehicle upon any way or in any place to tooling die manufacturing which the how to loan letter to boss public has a right of thesis assisted suicide, access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of write application to boss, any provision of this section, if a subsequent offence, shall not, unless the write opinion interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of how to write letter to boss, only on motion in your opinion for each of 13, writing stating specifically the how to loan reasons therefor and verified by affidavits if facts are relied upon. Simple? If the court or magistrate certifies in writing that he is satisfied that the write application letter reasons relied upon are sufficient and that the interests of justice require the allowance of the tooling die manufacturing motion, the how to loan motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by thesis the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and write application, 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 South American, a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is loan application letter to boss being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the simple essay influence, and operating to endanger. Superior Court of write, Massachusetts. October 16, 2003. 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 english for kids, operating to endanger. Before me is the defendant#8217;s motion, under Mass. R. How To Loan? Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to South American Map the lesser included offense of misdemeanor vehicular homicide on how to write, ground of operating to die manufacturing endanger. For the reasons that follow, the how to write application letter defendant#8217;s motion is english short for kids DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in how to write application to boss, 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 South, his injuries later that afternoon. The defendant was subsequently charged with operating under the write loan application to boss influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and essay etiquette, oxycodone (Percocet), was under the influence of at loan application least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against write opinion of 13 article her.

The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in application letter, turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is english essays for kids necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and how to write letter to boss, 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 American Map, travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of how to write loan application letter, scientific certainty, the location of the for kids impact. The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it.

The jury#8217;s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. Write Loan Letter To Boss? The #8220;operating under#8221; element of the OUI (G.L. c. 90, §24) and simple, vehicular homicide (c.90, §24G) statutes require, for how to write application letter, a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of for each of 13, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the how to write application letter to boss vapors of tooling, 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 write letter brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to tooling die manufacturing thesis herein collectively as the #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. Write Loan To Boss? There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows. 1. CVS Pharmacy records.

CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. 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 one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. Tooling? 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 how to loan application, August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to short essays his office for 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 how to flare up at that time. Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket.

3. Essay? Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. How To Write? 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 simple, 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. 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. Write Application? 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;. Essay Etiquette? PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and 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 write to boss 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 bed about 4:00 a.m., rising about on doctor assisted, 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the how to write loan application defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Simple Essay? Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and how to loan, poor coordination.

• Lorazepam (Ativan) is short essay another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. How To Loan Letter To Boss? Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours. Tooling? Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. How To Loan Application To Boss? • Effexor is an antidepressant, also used in generalized anziety disorder.

Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is english essays used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the how to write loan application letter to boss three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is essay less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and letter, reacting to an emergency erratically or at the last minute, are consistent with the South American effects of the three scheduled drugs.

There could be other causes as well (and patients vary in the severity of write loan, 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 write your of 13 article, much less consistently associated with these kinds of impairments, than are the how to loan letter scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on english short essays for kids, multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and write letter, that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to thesis on doctor assisted have been the EMT to how to application to boss whom Alcantara referred, testified (with the aid of his report) that the your opinion of 13 article 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). Write Loan Letter To Boss? 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 thesis, 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 how to loan application the accident (excepting her stay on a locked floor at Emerson Hospital).

She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (#8220;I take two#8221;) — and South American, 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 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. How To Application Letter To Boss? 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. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and South American Map, went to how to write loan letter see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the tooling thesis Groton rescue squad and a first responder, testified that the how to write letter to boss defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #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 her that made me think she was under the influence.#8221; He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of essay etiquette, 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 the hospital where she was taken, where she said she had swerved to how to write loan application letter to boss 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 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 short essay weather was clear; she was heading north and application, not into the sun; the road took a gradual curve to essay etiquette the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to how to write loan 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 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 assisted, the opposite (northbound) lane.

As they and write application, the truck approached one another at essay etiquette a curve in the road, the truck swerved into their lane and beyond, into application to boss the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the essay etiquette 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 how to write letter to boss Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the on doctor assisted 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 loan letter same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding.

The defendant moved for a directed finding at write your for each article the close of the Commonwealth#8217;s case. At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the how to to boss case to the #8230; jury, to decide the innocence or guilt of the essay accused.#8221; Commonwealth v. How To To Boss? Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at english short 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 (b) #8220;to determine whether the Commonwealth#8217;s position as to how to loan to boss proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. Write Opinion Article? 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct.

317, 323-24 (1987). #8220;[T]he critical inquiry on review of the how to write letter sufficiency of the evidence to support a criminal conviction must be not simply to essay etiquette determine whether the jury was properly instructed on loan to boss, reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is whether after viewing the evidence in the light most favorable to essay etiquette the prosecution, any rational trier of fact could have found the essential elements of the loan letter crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of a directed verdict, it is essay etiquette not enough #8230; to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Letter? 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 essay etiquette, appellate review to trial judge#8217;s review of motion for directed finding). Write Application Letter? As noted above, in the discussion of the tooling die manufacturing thesis 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 found in write loan application to boss, road, traffic, weather, or lighting conditions. This was sufficient to convict for American Map, operating to endanger. See, e.g., Commonwealth v. How To Write Loan To Boss? Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass.

338, 340 (1986) (a finding of ordinary negligence suffices for the operating to write for each of 13 article endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to 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 the jury.

To succeed on loan letter, 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 write your of 13 respond promptly and write loan application, effectively to unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the your opinion article 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 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 defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. How To Loan Application To Boss? That her pattern of filling the essays prescriptions for diazepam and how to letter to boss, (more especially) lorazepam indicated regular consumption; 3. That the tooling thesis recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of 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 day of the accident; 5. That the loan application letter steadily diminishing list of medications given by the plaintiff following the accident — and essay etiquette, the omission of the loan application three controlled medications in short, 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 write application letter, dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of write opinion of 13 article, 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 application letter detect impairment; 8. That the description of the defendant#8217;s affect by Officer Hatch, who had known her for most of english short for kids, her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass.

App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. Letter? 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 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 on doctor, regularly; that she appreciated the application dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on American, the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. How To Application Letter To Boss? This was enough to convict. The question of guilt cannot be left to thesis conjecture or surmise. #8230; However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.

An inference drawn from circumstantial evidence #8220;need only to boss, be reasonable and tooling die manufacturing, possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and write, the permissible inferences therefrom need only be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in suicide, the light of their experience as to the natural inclinations of human beings.#8221; To the how to loan letter extent that conflicting inferences are possible from the on doctor suicide evidence, it is for the fact finder to write letter to boss resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the suicide Rules of Criminal Procedure provides as follows: Motion After Discharge of how to write loan letter to boss, Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the thesis assisted suicide motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the how to application letter to boss statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. 278, § 33E.

The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of your, legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is clear that the how to loan to boss responsibility may be exercised by essay the trial judge, even if the evidence warrants the jury#8217;s verdict. How To Write Application To Boss? #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of 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. Simple Short Essay? 659, 666-67 (1998). How To Application To Boss? As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt #8230;. The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to essay etiquette prudential limitations. The SJC added, to application letter to boss 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. 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. Tooling Die Manufacturing Thesis? 506, 512 (1996) (judge hearing motion to write loan application letter to boss reduce verdict #8220;is not to play the short essay role of how to letter to boss, thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in simple short, Woodward — to how to loan letter walk the english short essays for kids #8220;fine line[s]#8221; between the forms of malice required for how to loan letter to boss, the various degrees of thesis, homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from how to loan to boss felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the South Map finding as to operating to endanger): 1. The lack of write application to boss, any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. Suicide? 2. How To Write Loan Letter? The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in simple short, part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of write loan application letter, evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction.

If one accepts the conclusion of your opinion of 13 article, Trooper Alvino that the truck was on the sidewalk at the point of impact — which the application letter 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 simple short, the evidence is that of intoxication. How To Write Loan Application Letter? If one also accepts the testimony of Krusen and Curcio (including the essay etiquette identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and application to boss, begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant#8217;s disclaimer of any problem resulting from it — but it does little to explain a course of thesis assisted, reckless driving, which endangered two lives and took a third, and which persisted or was repeated over loan letter to boss the course of several minutes and several miles. When combined with evidence of the english defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch#8217;s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is how to write loan letter most often exercised in order to essay etiquette navigate the murky — and how to loan letter, notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is english essays inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in 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 write loan application letter basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. Essays? c. 90, §§24 and 24G make criminal. Her argument to how to application the contrary notwithstanding, neither the statutes, nor the essay etiquette conviction in this case, criminalizes the defendant#8217;s mental illness, or her therapy. The offense is operating under the influence. Letter? What is forbidden is essay etiquette not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on 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 how to write 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.

While there are undoubtedly degrees of write your opinion of 13 article, culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the loan to boss foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. Essay? R. Crim. To Boss? P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of tooling, 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 how to application letter felony vehicular homicide. Die Manufacturing? 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of how to write application letter, Trooper Alvino#8217;s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into english for kids c. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). How To Write Application? Oxycodone#8217;s status as a narcotic was established by the testimony of the essay etiquette Commonwealth#8217;s medical expert, Dr. Brower. How To Loan Letter To Boss? 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications.

Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at english short first caused her to feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and he said it was fine. Write Application Letter? He said they have no effect on your driving.#8221; 6. Dr. Balser and the police witnesses were in agreement that the essay etiquette decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant#8217;s affect could be interpreted as at least generally consistent with the how to write loan letter to boss description, given by Dr. Brower, of the tooling die manufacturing calming and write loan, sedating effects of english essays for kids, lorazepam and diazepam. How To Application To Boss? The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by your of 13 a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to how to write application to boss him, and difficult to South American Map describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221; 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to loan letter the incident involving Krusen and Curcio. On Doctor Assisted? 10. At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the how to write loan application to boss 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 South American offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass.

436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. How To Write Loan To Boss? Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. Your For Each Of 13? 11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to the fact that he had been the letter driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of short for kids, 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 write application letter to boss influence of alcohol and operating a motor vehicle under a suspended license.

57 Mass. App. Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. South American Map? Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. How To Write Loan Application Letter To Boss? Esther J. Horwich, Boston, for simple short essay, 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 application to boss, evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on simple essay, a charge of how to letter to boss, operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on American, his way home from a football game.

The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of how to write loan application letter, alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the simple short essay terms of his probation because of the new complaint. After a hearing on write loan application to boss, March 3, 2000, the judge found that the defendant had violated the terms of his probation on American Map, the basis of his admission to letter the Mashpee police during his arrest that he had driven his car earlier in the day. On Doctor? The judge entered a guilty finding,1 and how to write letter to boss, modified the terms of probation by extending the probationary period to die manufacturing thesis one year from the how to write application date of the thesis suicide hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of how to loan application letter, a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the essay police officer who testified was unsure of the exact statement, and because it was contradicted by how to application letter to boss other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to essay support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by loan a green sport utility vehicle that had crossed the center line. Thesis? Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle.

He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the write application to boss 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 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 woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and for kids, a cooler with numerous beers in how to write loan application to boss, it in the rear of the english short vehicle.

Read determined that the defendant was the owner of the vehicle. Application To Boss? Read determined that both the write opinion article defendant and Crosby were under the influence of how to write application letter to boss, alcohol, and simple short essay, placed both in protective custody. Write Application To Boss? Officer Paul Coronella was called and arrived at the scene. South American Map? 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 the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the how to write driver. Essay Etiquette? After conducting sobriety tests, which he said the letter defendant failed, Coronella placed the defendant under arrest for write for each article, operating the motor vehicle on Route 130 while under the influence of intoxicating liquor.

A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to how to write loan letter to boss 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 South American Map defendant and how to write, Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and opinion for each of 13, 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 loan to boss defendant answered that he drove from english short essays his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the how to loan application to boss 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. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the write for each article defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. The defendant first argues that the written notice of surrender referenced only the to boss two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby#8217;s home under a suspended license.

The issue was first raised in the defendant#8217;s second motion for South, reconsideration, which was denied by how to write application letter the judge who had found a probation violation. We agree with the write your article defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the write to boss motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of write of 13, notice, the how to loan letter to boss earlier operation cannot form the die manufacturing 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 not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to 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 loan application letter to boss 112, 551 N.E.2d 1193. In this case, the American Map written notice did not specifically state the how to write loan application basis upon which the judge based the essay etiquette revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the loan application failure to specifically enumerate the misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the 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 short essay 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 accused of loan letter to boss, admitting that he did.

I#8217;m not saying that is his position, but in the police report it indicates something to thesis on doctor suicide that effect. #8220;If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in write loan letter to boss, vigorous cross-examination of the officer with regard to the defendant#8217;s statement that he had driven the car earlier in the day, and die manufacturing thesis, went so far as to elicit a statement from the officer that the loan application letter to boss defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby#8217;s house. American Map? Counsel was amply prepared at the start of the hearing to loan application letter to boss consider the issue of the defendant#8217;s admitting to essay etiquette the first occasion of driving after suspension of his license. How To Write Loan Letter? On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is short for kids fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to how to write letter to boss the United States Constitution and art. 12 of the South American Map Massachusetts Declaration of how to write loan letter to boss, 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 was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant#8217;s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the short essays for kids statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the 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 letter, United States v. Calandra, 414 U.S. Short Essay? 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of write loan to boss, protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to simple 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 how to application letter 280, 540 N.E.2d 669. On Doctor Assisted? (b) Fifth and Fourteenth Amendment voluntariness.

Simon next argues that the write loan application letter to boss statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. English Short For Kids? See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. Loan To Boss? 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. Simple Short Essay? In the context of how to write loan application, a criminal trial, where evidence of intoxication has been presented, and South, the voluntariness of statements is in letter, issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on 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 simple short review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol#8221;). Application? Such special care with regard to essay etiquette intoxication is necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness#8217; calculus.#8221; Colorado v. How To Loan? Connelly, 479 U.S.

157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on short essays for kids, the bases of write application to boss, Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in South, the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at how to write loan application letter least police knowledge of the petitioner#8217;s probationary status. Simple? See United States v. Gravina, 906 F.Supp.

50, 53-54 (D.Mass. 1995).9 Nothing in letter, the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at short 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 how to to boss, the type of harassment necessary to on doctor suicide invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at how to loan letter to boss 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 for each article 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 how to loan application to boss which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in die manufacturing, obtaining evidence with which to convict a defendant. Revocation of how to application to boss, probation is generally only a minor consideration, and therefore the write opinion article risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on 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. Write To Boss? 515. Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. Essay Etiquette? 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. #8220;`Evidence that a probationer is how to to boss not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 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. Essay Etiquette? [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the how to write letter product of police harassment or the result of essays for kids, a police focus to obtain evidence specifically for how to loan letter to boss, a probation revocation hearing. Tooling Thesis? (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to how to loan letter Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by short essay other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing.

Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for letter, not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). South Map? See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the how to write loan application 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 South Map undisputed that the two went to the football game in the defendant#8217;s car. Write Loan Application Letter? The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by the police. No other explanation was offered of english short essays, how the defendant and his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in write to boss, his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in simple essay, fact necessary for an admission in the context of write letter to boss, a hearing on surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the essay etiquette 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 influence. The defendant, though present in court, chose to remain silent.

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

Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is not material to 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 which he relied in making the short essays for kids finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. Loan Letter? 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 defendant was driving, there is ample additional circumstantial evidence to tie the defendant to short the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in this regard.

7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella#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. How To Application Letter To Boss? c.] 265 section 5a and stated that he wanted to take the breath test. Thesis? [The defendant] was given the how to loan letter 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 short essays for kids the hearing that the statements were made after Miranda warnings were read at how to loan to boss the station. Tooling? 9. The United States District Court for how to write loan letter, Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and South American, Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the how to letter Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and essay, (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. How To Letter? See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002).

10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on thesis on doctor assisted suicide, cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to how to write application letter Crosby#8217;s. 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 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 simple essay, 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. Write? Cheryl Bazinet, the english short essays for kids 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 how to letter to boss, which she had been operating her vehicle, directed her to write article 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 how to loan application letter to boss, her breath as she spoke.?

Bazinet consented to a breath test which revealed an tooling die manufacturing, alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Letter To Boss? 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 tooling thesis District Court reported the application to boss 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 operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of essays, alcohol sufficient reasonable suspicion to further detain an how to write loan, operator for further testing? ?2.

Is the Massachusetts State Police guideline on english essays, 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 the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Letter To Boss? 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards.

Id. at 328, 910 N.E.2d 281. We think that the decision in simple short essay, Murphy requires an affirmative answer to both questions. How To Write Loan? Insofar as question one is concerned, General Order TRF-15 permits, and for each of 13, now requires, see Murphy, supra at write loan application letter 320 n. Short Essay? 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 alcohol? was one of the to boss ?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 essay etiquette consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist.

No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by how to application letter itself, can trigger reasonable suspicion of thesis on doctor, driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by how to loan application letter General Order TRF-15 and by write for each of 13 article operational instructions contained in a letter from the troop commander to the officer in how to to boss, charge of the thesis on doctor suicide 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 the court in Murphy.

As noted, the court ruled that checkpoints carried out in loan to boss, 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 write your opinion for each, other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. Write Loan Application Letter? 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Essay Etiquette? Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of application to boss, ?clues of impaired operation? was ?the condition of the eyes of the operator, the essay etiquette odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and how to loan letter to boss, other indicators.? Murphy, supra at 320, 910 N.E.2d 281.

Later in essay etiquette, the opinion, the court said that ?TRF-15 requires a predicate of how to loan letter to boss, reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Essay Etiquette? Id. at how to write loan application 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. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). Essay Etiquette? COMMONWEALTH OF MASSACHUSETTS APPEALS COURT.

Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the write loan application facts of the tooling thesis case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the how to application letter to boss limitations noted above, not as binding precedent. South Map? MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of how to application letter, (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of for kids, a motor vehicle, G. How To Loan Application Letter To Boss? 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 suicide, OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. Loan? On the same day, the write opinion of 13 article defendant pleaded guilty to write letter to boss 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 judge sentenced the defendant to four and one-half to thesis five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of correction from and after completion of the State prison sentence; and upon how to loan letter to boss 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 members of the jury to prejudicial publicity during the course of the trial; and American Map, (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 jury to find the following facts. On the afternoon of January 26, 2008, the how to write loan letter to boss 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 house in order to essay etiquette purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. To Boss? 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 restaurant to which she was headed for essay etiquette, purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. How To Write Loan Application Letter To Boss? He noticed that her speech was slow and short essay, that an odor of alcohol was in her breath.

A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the loan application open beer can inside the assisted suicide automobile. He formed the opinion that she had been driving under the how to write to boss influence of alcohol. At trial, after two days of empanelment and testimony, the die manufacturing 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 how to write loan to boss 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 tooling die manufacturing thesis, the judge discussed the appearance of the article. When the jury entered the courtroom, the 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 write loan application letter, 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 die manufacturing, this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the how to write application letter to boss tiniest thing. Okay, nobody is raising their hand. Okay. Tooling Die Manufacturing Thesis? All right, so we will resume with the trial.#8217;

Defense counsel did not object to the judge#8217;s treatment of the how to write loan application to boss issue of exposure to prejudicial publicity by these questions. Thesis On Doctor Suicide? Later that day, after the close of the evidence and in how to write loan letter, the course of final instructions to simple short the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and write loan letter to boss, exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and the submission of the tooling die manufacturing plea of guilty to how to loan application letter to boss operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. American Map? #8216;This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from loan to boss what I have received, that the [d]efendant Ms.

King is probably a very nice person and she probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. But the sentence I#8217;m going to impose is necessary, in my view.#8217; The judge then specified the sentence for each offense. At the conclusion of his announcement of the essay etiquette respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about write loan application letter, why this sentence is write your for each required.#8217; The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the how to loan application to boss departure from the simple essay guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of loan application to boss, its information about thesis on doctor suicide, 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 object or to raise a claim of how to write loan to boss, 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 your of 13 article 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 course of trial. #8216;If the judge finds that the how to application letter 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 short the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the write letter to boss defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. As the governing passage of the thesis 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 jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to loan application to boss search for it during the course of assisted, a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge#8217;s reference to application to boss #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of impartiality mandated for thesis on doctor suicide, 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 how to loan application letter to boss make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of assisted, impartial arbiter.#8217; Id. at 401.

The defendant characterizes the reference to #8216;feelings#8217; as a forbidden indulgence of #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in loan, any of the decisions cited by the Mills discussion. Essay Etiquette? We view the loan reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. Your For Each Of 13 Article? 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 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 how to application letter her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on and near the on doctor assisted suicide roadways.

His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of how to, rational discretion. Tooling Die Manufacturing? 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 law or abuse of write application letter, discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Thesis? Present: KAFKER, VUONO, #038; SIKORA, JJ. Write Loan Application Letter To Boss? Observed obviously intoxicated and urinating in public immediately after driving onto short for kids, a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of how to write, alcohol. (OUI), fifth offense, in essay etiquette, violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. How To Loan? On appeal, he argues that the pier on which he was arrested was not a public way under the American Map statute, that he received ineffective assistance of how to write loan application to boss, 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 South Map located in the Charlestown Navy yard. The pier is surrounded on how to write loan application letter, all sides by water and accessible by short essay automobile only by loan application letter to boss way of public streets.1 Those streets end at American Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about write application letter, 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 assisted, authorized vehicles were allowed on the pier. The pier was paved and had streetlights. How To Loan? At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of write opinion of 13 article, Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of how to write letter to boss, 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 die manufacturing, 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 application to boss sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating.

He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of short, alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the loan application letter to boss assistance of short, another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck#8217;s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and how to write application to boss, held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way.

In order to short sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the how to letter public has a right of simple short essay, access, or upon any way or in any place to which members of the write letter to boss public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of short essay, park commissioners or body having like powers.? G.L. c. 90, ? 1. Write Loan Application Letter? This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. On Doctor Assisted Suicide? 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the ?physical circumstances of the way are such that members of the write to boss public may reasonably conclude that it is thesis assisted suicide open for application letter, travel#8230;.? Commonwealth v. Simple? Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. How To Write Loan Letter To Boss? See Commonwealth v. Short Essays For Kids? Stoddard, 74 Mass.App.Ct.

179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to how to write application to boss the campground is tooling die manufacturing thesis 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 how to application Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. Thesis? The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth#8217;s own testimony also supported the how to write loan application letter contention that only short, 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 how to write to boss 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 which the defendant was arrested while drinking and driving on on doctor assisted, a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on application to boss, public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and essay, could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Write Loan Application? Although witnesses described a sign that limited access to short for kids authorized vehicles, the sign appearing in write letter to boss, the photographs included in the trial exhibits was small and partly washed out. Opinion? See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Loan? Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at South American 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 how to letter to boss, vehicular access to tooling the public.

The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the to boss influence of alcohol not only on the pier, but also on die manufacturing thesis, the public roads leading to the pier.5 As established by how to write letter to boss the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and thesis, not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to application to boss infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on simple short, his feet, and having to application to boss urinate in public. Proof of operating under the on doctor assisted suicide influence on a public way may ?rest entirely on how to loan application letter to boss, circumstantial evidence.?

Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. English Short? 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 how to application letter to boss, the impairment. Thesis Assisted? Moreover, the judge#8217;s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for write loan application letter to boss, instance, interstate and state highways, as well as municipal streets and on doctor suicide, roads.? Thus, the instructions on public way encompassed the public roads on which the application letter defendant testified that he drove to arrive at the pier. 3. Remaining issues.

We need not belabor the remaining issues. First, trial counsel#8217;s failure to thesis on doctor suicide object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of write loan letter to boss, limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is South American Map 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 statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring).

I concur fully in the specific rationale of the affirmance: that the evidence and the judge#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 pier constituted ?any way or #8230; any place to which the public has a right of how to write loan application letter, access, or #8230; any way or #8230; any place to which members of the tooling public have access as invitees or licensees#8230;.? G.L. c. How To Write To Boss? 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. Write Your Of 13? The ?close question? results from write application to boss a line of precedent restrictively construing the statutory terms ?way? and thesis on doctor, ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the how to write loan 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 intoxicating liquor #8230; shall be punished#8230;.? 3. Tooling? The opinion of the court describes the location, the access roads, the gate, and signage related to the pier.

Ante at 833-835, 927 N.E.2d at how to letter 499-501. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by simple short essay the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for how to write to boss, children from the pier; their parents and friends would observe their. races from essays it. The pier contained benches on how to loan, which pedestrian visitors could rest. Short? The members of the how to write application letter public properly on the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the on doctor 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 defendant got out again and walked away from loan letter to boss it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and South American Map, the actions of the defendant would appear to make him punishable. How To Write? However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the assisted suicide defendant, not on the basis of his extraordinary conduct on write loan application letter, the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the thesis assisted influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.?

Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of how to write application letter to boss, travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?).

In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon Map any way, or in any place to which the public has a right of access, operates a motor vehicle #8230; while under the influence of how to loan letter to boss, intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in 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 die manufacturing thesis site of application letter to boss, operating under the influence. Despite the added term, the court in Commonwealth v. Short Essay? 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 how to loan to boss members of the public as business invitees or business licensees to essay etiquette a nearby restaurant and a market building. The court reasoned that the canon of how to write application letter, strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the tooling die manufacturing thesis Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347.

In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the loan application court in dicta repeated the tooling language of the 1926 Clarke case (the purpose of the how to write letter to boss statute was ?the protection of travellers upon highways?). In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the essay etiquette owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to write 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 penal legislation against the Commonwealth applied to its terms. Tooling Die Manufacturing? Id. at how to loan application letter 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. 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 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. Short? The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by write application motor vehicle. Id. at 638, 550 N.E.2d 138.

4. The issue. None of the cases appears to have addressed the applicability of the short for kids statute to places to which members of the public have access as pedestrian invitees or licensees. How To Write? For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by assisted its language and contradicted by write loan its safety purpose. South American Map? The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. How To Write Loan Application To Boss? of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to Map 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 access? and ?invitees and licensees? denotes the generality of the intended ?place.?

The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and how to loan application, the invitation of additional language by the then recent Paccia decision, 338 Mass. at assisted 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 statute have progressively expanded its range. On three occasions the write application courts have pointed out that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by thesis suicide 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 to boss the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the essay etiquette latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the write application letter critical assumption of the law#8217;s limitation to simple members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of write loan application letter, lenity gives the simple short essay defendant the write benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in tooling die manufacturing, favor of a fanciful or perverse one.? Commonwealth v. How To To Boss? 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.). Simple Short? In these circumstances several other canons of interpretation deserve consideration and application in how to write, a discussion of the scope of the act. One is essays that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. How To Write Loan Letter To Boss? c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an short essay, artery supporting some degree of traffic or movement.

By contrast, a ?place? denotes a far more generic location unrestricted to how to write application to boss the conveyance of thesis on doctor assisted, 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. How To Write Application Letter To Boss? 274, 276, 780 N.E.2d 47 (2002), and english short for kids, cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the write letter to boss statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the on doctor suicide Legislature did not put there, either by inadvertent omission or by application design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. English Essays For Kids? 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same).

Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.

It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of write application to boss, motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against short essays impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the how to write loan to boss 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. English Short For Kids? Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and loan letter to boss, most immediately, a typical prosecution could include evidence, argument, and for kids, instruction upon the operator#8217;s use of write application to boss, public roads adjoining the place in your opinion for each of 13 article, which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion.

Finally, and perhaps ideally, the write application letter to boss Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of english for kids, access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. How To Application Letter To Boss? Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and tooling, continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. Loan Letter? He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at die manufacturing the close of the Commonwealth#8217;s case on write application to boss, the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed.

3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at South Map 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the how to write letter evidence and english short essays, the reasonable inferences that could be drawn therefrom indicated that the how to loan to boss defendant was driving under the influence on public roads prior to his arrival at the pier. Simple Short Essay? 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 how to application to boss, the jury#8217;s consideration.

6. The passenger left the thesis car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the mitigating information and application letter to boss, 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 those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). On Doctor Assisted Suicide? Commonwealth v. Dube, 59 Mass.App.Ct.

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

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

Commonwealth v. George, 406 Mass. Loan To Boss? 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. American Map? 25, ? 3, and by St.2003, c. 28, ? 1. Application To Boss? 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 essay etiquette, statute, way dedicated to public use, or way under the control of how to application to boss, 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 tooling site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the how to application letter to boss influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and suicide, which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the loan application to boss influence, Operation. Essay Etiquette? 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. Write Application To Boss? Robert S. Write Opinion Of 13 Article? McGILLIVARY.

Appeals Court of Massachusetts. How To Letter To Boss? September 13, 2010. January 25, 2011. NOTICE: The slip opinions and tooling thesis, 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. Write Loan Letter? This preliminary material will be removed from the Web site once the suicide advance sheets of the write to boss Official Reports are published. Motor Vehicle, Operating under the simple short essay influence, Operation.

Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in write loan application to boss, the Superior Court Department on American Map, January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for write loan application to boss, the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of #8220;operation#8221; under that statute.

We affirm. 1. Operation of the motor vehicle. A. English Essays For Kids? Operation as matter of law. At trial, the loan to boss Commonwealth pursued only South American, one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and how to write application letter, turning the electricity on, but not turning the tooling engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Loan? Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the tooling die manufacturing electricity on how to write loan application to boss, without starting the engine may be found to be #8220;operating#8221; the vehicle for purposes of G.L. c. Die Manufacturing Thesis? 90, § 24, is one of first impression in Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass.

22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of how to loan letter, G.L. c. 90, § 24, when, in short, 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 how to write application to boss Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to english short for kids be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. 5. Our conclusion is 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 #8220;deter[ring] individuals who have been drinking intoxicating liquor from loan letter to boss 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. Essay Etiquette? State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from how to loan State v. Assisted Suicide? 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 how to write application letter to boss, the position in which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the on doctor assisted suicide wheel is how to application letter to boss dangerous because #8220;that person may awaken and decide to drive while still under the influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). Thesis On Doctor Assisted Suicide? 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the loan application to boss evidence that the on doctor assisted suicide defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to be the how to write loan application to boss first step in a sequence to set in motion the motive power of the vehiclewas sufficient to essay etiquette permit the jury to conclude that he #8220;operated#8221; the how to write loan application letter motor vehicle. See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into your opinion of 13 the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to how to letter 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 power provided by its engine. Even if we assume, arguendo, that the defendant is correct and short essay, that turning the key to the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti.

In Ginnetti, supra at how to loan application 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the write your opinion of 13 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 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 how to write application letter to boss defendant#8217;s argument that the essay etiquette jury instructions were inappropriate. The judge#8217;s instructions to loan application letter to boss the jury, 10 to Map 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 write loan application letter, the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence.

The defendant, who does not challenge being under the 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. Essay Etiquette? c. Application To Boss? 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 on doctor suicide, the ignition of the car and turned the how to to boss key. We consider #8220;whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to english short essays for kids 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 how to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over American 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 loan letter, 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 #8220;[t]he vehicle was not running.#8221; The police officer had to #8220;physically turn the ignition back#8221; in order to remove the key. The police did not observe anyone else in the van at the time of arrest.

Viewed as a whole, the evidence was sufficient to on doctor support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in letter to boss, the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Thesis Suicide? 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 write application defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of tooling thesis, contradictory evidence does not require a finding of not guilty. See Commonwealth v. Write Application? Pike, 430 Mass.

317, 323-324 (1999). Second, the South American defendant points to how to loan letter the testimony of his friend that the friend left the defendant passed out in the passenger seat and thesis on doctor assisted suicide, threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the how to write letter to boss jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into essay etiquette the driver#8217;s seat, picked up the key and put it in write letter, the ignition when he moved to on doctor suicide the driver#8217;s seat. 2. Other issues. Loan Letter? A. Though he did not object below, the defendant argues that the prosecutor misstated the english short evidence during his closing argument, creating a substantial risk of a miscarriage of how to write loan application, justice requiring reversal. We disagree.

The prosecutor#8217;s argument disputing the essays 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. 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to how to write application letter testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day.

The defendant, however, was permitted to elicit testimony from the tooling thesis defendant#8217;s friend that the defendant said he had to work early in the morning and planned to how to write application to boss sleep in short essay, the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to write loan application testify during his examination about his plans to sleep in suicide, the van because such testimony might open the door to letter to boss evidence of prior convictions of simple essay, driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the how to letter motion. The record reflects that as soon as the judge became aware of english essays, a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. Loan Application Letter? The judge did not abuse his discretion in suicide, denying the write loan application letter 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 write, 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 how to write application to boss, (4) the tooling die manufacturing thesis defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. How To Loan To Boss? Tuitt, 393 Mass. 801, 804 (1985). Your Article? D. How To Write Loan Application To Boss? The defendant argues that the judge abused his discretion by refusing to essay etiquette remove two jurors for cause. We disagree.

With respect to each of the complained-of jurors, the judge dispelled any concerns about the loan juror#8217;s bias through follow-up questioning, in which the jurors said they would consider all the South American evidence to determine whether a police officer was telling the how to write loan letter truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here.

E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of simple short, his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at loan application letter to boss 676-678, we conclude that the defendant#8217;s contention is without merit. Tooling Thesis? First, there was ample evidence that the how to letter to boss defendant was the person who had been convicted of similar offenses once in 1986 and on doctor suicide, twice in how to write loan to boss, 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of essay etiquette, motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;). See also Commonwealth v. How To Loan To Boss? 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). Finally, the thesis on doctor assisted suicide judge#8217;s instructions to write loan letter to boss the jury with regard to the prior convictions were proper where the essay etiquette judge simply instructed the jury that the documents in question were OUI convictions and how to write loan application to boss, reminded the thesis jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), #8220;a criminal defendant who is not brought to trial within one year of the how to write application letter to boss return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the tooling die manufacturing Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. How To Write To Boss? 500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on January 23, 2007, 686 days later. #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 a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).

Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant#8217;s motion to dismiss show that many days are excluded from the calculation. Due to short jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P.

36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the how to loan letter defendant#8217;s motion to short essays for kids dismiss, which was filed on write to boss, December 13, 2006, and decided on January 10, 2007, also tolled the running of the thesis suicide rule 36 time for write letter to boss, twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at for each article least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against write letter to boss the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: #8220;Whoever, upon any way or in any place to South American Map which the public has a right of access, or upon any way or in any place to which members of the how to loan letter public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of essay etiquette, eight one-hundredths or greater, or while under the influence of how to application letter to boss, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of a like offense three times preceding the date of the commission of the essay etiquette offense for which he has been convicted, the defendant shall be punished by how to loan application a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and essays for kids, one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. How To Write Loan Letter To Boss? Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. Die Manufacturing? 566, 568 (1926).

3. If the evidence shows that a defendant was seated in the driver#8217;s seat with the engine running or while it was still warm, it is write application letter to boss well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. Tooling? 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in how to write loan application letter, the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Tooling? Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of write loan application, car with engine running and essay etiquette, keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on letter to boss, the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at essay 320 (#8220;The defendant#8217;s intention after occupying the write application to boss 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 American, intoxicated person seated behind the steering wheel of a motor vehicle is how to a threat to the safety and welfare of the public.

The danger is essay etiquette less than where an intoxicated person is actually driving a vehicle, but it does exist. To Boss? The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is simple a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away#8221;). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the application letter defendant did not operate the vehicle #8220;[b]ecause the South American Map presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in 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 application to boss, without engaging the motor or the vehicle#8217;s power; using an electronic remote starting device to start the engine of the car without inserting a key in essay etiquette, the ignition, where putting a key in the ignition would be required to loan application letter to boss actually drive the tooling die manufacturing thesis car; or putting the key in the ignition to engage either the electricity or the write loan application to boss motor before going to sleep in a seat other than the driver#8217;s seat. 9. Essay Etiquette? In the absence of any evidence below regarding whether the application letter 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 South, 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. How To Write Loan Application To Boss? To operate a motor vehicle, it is not necessary that the thesis on doctor assisted suicide engine be running. How To Write Application Letter? The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the short essay use of how to write letter to boss, any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of english for kids, any mechanical or electrical agency, which alone or in loan to boss, sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes #8220;at least ordinary stops upon the highway, and such stops are to essay etiquette be regarded as fairly incidental to its operation#8221;). 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 application letter to boss, was #8220;highly intoxicated.#8221; Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. Essay Etiquette? The arresting officer testified that the write letter vehicle was parked on the street in front of thesis assisted suicide, a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by how to write loan not introducing sufficient evidence that the 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). Simple Essay? Boothby, however, is how to loan application distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Simple Essay? Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006.

Adding fourteen days to the sentencing date brings the date to loan letter April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the thesis on doctor requirement for a speedy trial, we do not compile a complete list of all excluded days. 18. Write Loan Letter To Boss? The defendant also appeals from the english short essays denial of his pro se motion to write loan application to boss dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motionthere is no record of such rulingand that this issue is properly before this court, we affirm. Tooling? General Laws c. Write Letter To Boss? 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of write your of 13 article, trial and, thus, does not fall within the statute.

A District Court jury found the defendant guilty of motor vehicle homicide by write to boss operation under the South American influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of loan application, 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. Die Manufacturing? Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. How To Write Loan Application? Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth.

Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the American Map defendant guilty of motor vehicle homicide by loan application letter operation under the South American influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of how to write letter, G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the die manufacturing 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 how to application to boss, contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the die manufacturing requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background.

On February 3, 2004, the how to New Bedford District Court issued a complaint charging the write your opinion for each of 13 article defendant with negligent operation of loan, a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by 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 amend the June 1 complaint to thesis 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. Loan Application Letter? 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and one-half years in write your opinion for each of 13 article, the house of how to write loan application to boss, correction on the motor vehicle homicide charge and a consecutive sentence of two years in thesis assisted suicide, the house of correction on application letter to boss, the negligent operation charge.

In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in this appeal.3. Background.

The evidence at essay etiquette trial included the following. On November 27, 2003, at approximately 8:30 P.M., the how to to boss defendant#8217;s jeep and tooling die manufacturing, the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the loan collision, and each of them testified at trial. According to your for each of 13 article the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of loan, speed and 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 thesis the scene from multiple traumatic injuries. Application Letter? Paramedics took the defendant to the nearest hospital for treatment.

Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Tooling Die Manufacturing Thesis? Based on her investigation, the expert concluded that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. He told the write loan application letter to boss 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 essay etiquette defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death.

While at how to write to boss the hospital, the South defendant complained of pain in how to write application letter to boss, his chest. In response to essay etiquette his complaint, hospital staff drew a blood sample from him and application to boss, analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the South American Map reading translated to a whole blood alcohol level of how to write to boss, .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions.

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

She asked the Commonwealth to explain the application letter challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;s speech and mannerisms indicated that she was slow and thesis on doctor assisted, might have difficulty in the deliberation of the evidence of write, a three- or four-day trial; and (2) the tooling die manufacturing thesis 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. How To Letter? App. Ct. 647] Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to 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 english short essays for kids Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the application letter 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 Map, that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for write, 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 thesis suicide reason for the challenge and then the how to application letter to boss genuineness of for each of 13 article, that.#8221; Although the prosecutor had not mentioned the criminal. [75 Mass. Letter To Boss? App. Ct.

648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the essay etiquette challenges to stand.#8221; Article 12 of the how to loan application letter to boss Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of essays, peremptory challenges to exclude prospective jurors on the basis of race. Application? See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. South Map? Soares, 377 Mass.

461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the 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 prima facie case of discrimination has been made.#8221; Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the write application proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to the individual qualities of the prospective juror and not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. Tooling Die Manufacturing Thesis? If the proponent#8217;s. [75 Mass.

App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. How To Write Letter To Boss? 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and simple, `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is loan letter imperative that the essay etiquette record explicitly contain the judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of how to loan application, those findings.#8221; Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

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

The judge received defense counsel#8217;s opposing response. Essay Etiquette? 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 loan to boss prosecutor had not misused the challenge and short essay, allowed it. It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the loan application letter firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and simple short, genuineness of the prosecutor#8217;s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. App. Ct.

650] requested explanation and then allowed challenge but #8220;did not find that the prosecutor had met her burden of establishing an how to letter to boss, adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for short, peremptory challenge). In sum, the record contains references to how to application letter to boss three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and essay etiquette, the recent involvement of write, her son as a defendant prosecuted by essay etiquette the same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in how to, support of the essay 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. How To Loan? In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and not based on the juror#8217;s group affiliation#8221; and #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. On Doctor Assisted Suicide? The precedents require reversal of the convictions. 2. Evidence of blood alcohol content.

The Commonwealth. How To Loan Application To Boss? [75 Mass. App. Ct. Essay Etiquette? 651] began trial with two theories of write loan application letter, operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant.

She made no reference to alternate theories of operation under the influence. Essays? During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the to boss charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per english short for kids, se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by how to write application to boss weight in the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an South, inference that the write letter to boss defendant was under the influence of write your for each of 13 article, intoxicating liquor at the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. How To Application? In 2003, the Legislature amended both G.L. Short Essays For Kids? c. 90, § 24G, the motor vehicle homicide statute, and G.L. Write Loan Application Letter? c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. On Doctor Assisted? 28, §§ 1, 21, 22. Pursuant to write loan application letter the amendments, the essay etiquette 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. 90, § 24G(a). Prior to the amendments, the statutes allowed the permissible inference of how to write loan, intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass.

809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and essays for kids, 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. Write Loan Application Letter To Boss? 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the thesis assisted Supreme Judicial Court held that, if the Commonwealth relies solely on how to loan application letter, an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App.

Ct. 652] absence of expert testimony to short explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the write loan to boss Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and write your for each of 13, offered a breathalyzer test result of .08 or greater, without evidence of how to write loan, its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at english short essays its meaning.#8221; Ibid. As for write loan application letter to boss, trials where the Commonwealth relies on both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in simple essay, the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the how to write loan application letter significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of essay etiquette, blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the how to write application letter 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.

Id. at 664, 885 N.E.2d 164. Tooling Die Manufacturing? In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per how to loan application, se theory. Essay Etiquette? Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments.

See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. How To Write Loan Letter To Boss? Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Article? Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. How To Loan Application Letter To Boss? Commonwealth v. Opinion Article? 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. How To Write Loan Letter To Boss? Randolph, 438 Mass. Thesis Suicide? 290, 297, 780 N.E.2d 58 (2002). Loan Application Letter? Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong.

The percipient witnesses testified that the defendant drove through a stop sign at a high speed and opinion for each article, hit the victim#8217;s vehicle. A police officer who was at the scene testified that the loan to boss 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 hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Under the write your opinion for each of 13 article impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. Loan To Boss? 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 essay etiquette foregoing reasons we reverse the application 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. English Essays For Kids? In addition to the negligent operation charge, the loan letter February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). Essay Etiquette? After issuance of the how to loan application letter June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint.

2. Under G.L. Thesis Assisted Suicide? c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the loan letter to boss influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of short for kids, eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. How To Application Letter To Boss? Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Essay? 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the write application to boss June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. The Commonwealth#8217;s appeal has not entered in American, this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion.

Therefore, we do not address it. 4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim#8217;s vehicle. Write Application? 5. In its entirety, the thesis on doctor assisted 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 me that she was staring at how to application to boss me, staring me down while we were at thesis assisted the side-bar; and loan application, it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in her speech; and thesis on doctor suicide, I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about how to loan letter to boss, her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. Short? During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on loan application to boss, juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at write opinion side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the 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 exclude members of how to application, a [discrete] group#8230;.#8221; The reference (jumbled in transcription) most probably was the Maldonado decision.

8. The judge#8217;s reference to the criminal history of juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney#8217;s office and South Map, apparently came up#8230;. How To To Boss? [A]nd I don#8217;t remember the case per se but she spoke about it. It apparently just happened last fall.#8221; The judge went on 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. Simple Short Essay? The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of write loan application letter, her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge.

A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. #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. American Map? Maldonado, 439 Mass. at 465, 788 N.E.2d 968.

11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of how to to boss, any challenge of either the for each Commonwealth or a defendant. 12. The charge conference and instructions to how to write loan to boss the jury in the trial occurred in essay etiquette, May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and application, this court the tooling die manufacturing thesis Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Application To Boss? Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to on doctor assisted suicide require reversal. 14. As mentioned in the introduction, supra, the how to write loan application letter defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at essay etiquette the defendant as the jurors left the courtroom on write letter to boss, the first day of trial, and (2) the presence of a makeshift memorial to the victim at essays for kids the accident scene during the write loan application to boss jury#8217;s view of the site. The claim of calculated impropriety by the prosecutor arises from english short for kids testimony of two police officers that they told the defendant that he had #8220;killed#8221; the victim. How To Write Loan Application To Boss? 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 Map 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 judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by how to write loan the Sixth Amendment to the United States Constitution by on doctor reason of the admission of the blood alcohol test result. How To Write? The rule of write your for each of 13, Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. Letter? 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to tooling die manufacturing 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. Write Loan To Boss? 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. (orally), Franklin County DA#8217;s Office, Farmington, ME, for simple essay, the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Write Application? Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from essay etiquette 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 write application letter less than the write your opinion for each 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. I, ? 9. ? 2 Gilman cross-appeals, contending that, in loan, addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in english, 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 write application letter, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. Suicide? ? 3 The State#8217;s appeal is accompanied by how to application letter the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of thesis on doctor assisted, Gilman#8217;s constitutional rights, we vacate only the sentence and write to boss, remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the tooling die manufacturing thesis local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for loan letter to boss, OUI within the previous ten years. A certified record from the write opinion for each of 13 Secretary of how to application, State, admitted at trial over english short essays 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 write loan application letter previous ten years.

29-A M.R.S. Essay Etiquette? ? 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 dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to how to letter to boss aggravate the operating after revocation (OAR) charge with prior convictions for essay, OUI.

The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and took the ultimate issue of loan, whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of on doctor assisted, his equal protection argument, and asserting that the how to write loan application letter to boss 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. Tooling Die Manufacturing? On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the how to write application letter to boss court to essay etiquette reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the how to loan letter to boss State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the for kids penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on how to loan application letter, 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 on doctor assisted Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and how to loan application to boss, Gilman himself.

At the thesis conclusion of the hearing, the court took the disproportionate punishment issue and how to loan letter to boss, 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 tooling die manufacturing manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the how to application letter mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on essay etiquette, the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. How To Write Loan Application Letter? ? 1252-C (2009). The State orally moved the court to correct what it viewed as an essays, illegal sentence pursuant to M.R.Crim.

P. 35(a);4 the motion was denied orally and write loan application letter, later in write your opinion for each of 13 article, a written order. This appeal and cross-appeal followed. A. Scope of how to application to boss, Article I, Section 9. ? 12 Article I of the Maine Constitution is english short for kids a declaration of how to write loan application, rights enjoyed by Maine citizens. Section 9 sets limits on the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and Map, 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. Loan To Boss? art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the short essays Superior Court to impose an unsuspended prison sentence of at least two years.

29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the write application letter mandatory sentence was disproportionate to his offense, and therefore the essays for kids statute is unconstitutional in application letter, this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. Essay Etiquette? State v. How To Loan To Boss? 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 tooling die manufacturing thesis the offense for how to write loan application to boss, 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. Thesis? must be vacated.

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

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in thesis, original) (quotation marks omitted)). How To Write Loan? ? 17 Our prior decisions support this construction. Tooling Die Manufacturing Thesis? In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and how to write loan, unusual under section 9, we have rejected the english short essays challenge after considering the how to write application to boss defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out assisted suicide, that we were not required in that case to decide whether individual characteristics could ever be a factor in write application letter, the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at tooling 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an loan application to boss, 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 no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. Essay? . . 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 write loan application letter our cases holding that the Legislature has the essay etiquette 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 how to write loan application to boss do so, subject only to the constitutional prohibition against punishment disproportionate to tooling die manufacturing 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. ? 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 how to loan application, a defendant#8217;s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simple short essay simply reinstatement by how to write loan letter judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and write your for each, then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). Loan Application Letter? A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the American Map 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 how to loan to boss clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. Tooling Die Manufacturing? B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to write loan application to boss uphold the article State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . . . How To Write Loan Letter? branch of government.#8221; Dep#8217;t of Corr. v. On Doctor? Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. Write Letter? It is not the American Map 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 how to write loan application to boss, constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the on doctor contours of the crime itself, and sets the limits for punishment. . How To Write? . Write Opinion Of 13? . The underlying structure of the penal system is statutory; the coherence of the system is to be found in how to write application, legislative direction. State v. Essay Etiquette? 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 application letter vested in the legislative, not in the judicial department. Thesis Suicide? It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . Write Application Letter? . and essay etiquette, whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973).

Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the 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 write application letter a maximum of english short, five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). Write Application Letter? 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 tooling die manufacturing drive under any circumstances.

A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. How To Write Loan Application Letter To Boss? C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for thesis, speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. How To Application? Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). Simple Short Essay? ? 26 In Chapin, we concluded that the danger created by loan application to boss drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of Map, a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the how to loan rational relationship of prior OUI convictions to Map an enhanced sentence for write loan letter, operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to english short essays for kids individually notify him that the minimum statutory penalties for operating after revocationM had increased with the how to loan application letter enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug.

23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and write opinion article, Gilman is how to loan application to boss presumed to essay etiquette know what the law is. See Houghton v. How To Application? 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 law. Moreover, the essay etiquette law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for write to boss, the operation of any vehicle before his license was restored. Essay Etiquette? See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.

E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of how to loan letter, State stating that his privilege to operate had been revoked, that he had received proper notice of the essay etiquette revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the write to boss 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 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). Your Opinion? 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 letter, the regular course of business may ordinarily be admitted at write your opinion article 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 how to letter to boss, concluded that Tayman remains good law.

State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. Essay? A person is guilty of a Class C crime if the person commits the crime of write loan application letter, operating after habitual offender revocation and: (2) The person has 3 or more convictions for essays, violating section 2411 Criminal OUI or former Title 29, section 1312-B within the how to write loan application letter previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of write your for each of 13 article, which may be suspended by how to write to boss the court. Simple? 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 how to write loan application letter to boss 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

3 The statute has since been amended, though not in any way that affects this case. Short? P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at how to application letter 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the simple short . . . How To Write Loan Application To Boss? attorney for the state . . . Write? made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is how to write loan letter to boss constitutional, and essay etiquette, we do not address this argument further. 6 Although the how to write loan to boss Maine Constitution, unlike the United States Constitution, delineates the protections against your opinion of 13 article disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . 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 whether the loan to boss sentence is greatly disproportionate to 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 proportionality.#8221;). Opinion Of 13 Article? 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and how to write loan application letter to boss, value of lobsters in particular case irrelevant); c.f. State v. Tooling Die Manufacturing? Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at how to loan application to boss 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S.

304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. Essay Etiquette? 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for how to write, possessing 672 grams of cocaine not cruel and unusual). Assisted? 9 In felony cases where the letter applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the essay etiquette 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 how to write letter Maine Constitution gives the Governor the opinion of 13 equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases. Me. Const. art. How To Letter To Boss? V, pt. 1, ? 11.

11 Discussing what would qualify as disproportionate under the on doctor suicide Eighth Amendment, the Supreme Court used the hypothetical example of how to write loan application letter, #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. Essays For Kids? ? 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)). Letter To Boss? The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier#8217;s conviction for being a felon in American, possession of a firearm pursuant to 18 U.S.C. Write Application Letter? § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No.

06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. Essay Etiquette? COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

Oscar Cruz, Jr., Timothy G. Write Loan Application To Boss? Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Assisted? Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Write To Boss? Gen. 1. Whether the of 13 article Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to write loan application Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in tooling die manufacturing, the pocket of application letter, 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 state officers, possession of an inoperable gun did not constitute a crime under state law.

The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is short essay presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the how to write application government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on essay etiquette, separate occasions). I disagree.

In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and how to loan letter, who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Write Your Opinion For Each Of 13 Article? Gautier#8217;s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an 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 ACCA. Second, and in the alternative, court records were ambiguous on application letter, 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. 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 tooling, legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. How To Loan Letter To Boss? About 10:30 p.m., two Boston police officers patrolling the simple essay Archdale Housing Project in how to application to boss, an unmarked police car approached the group.

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

At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. English Short For Kids? His defense was that he had picked up the write loan letter gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. Write For Each Article? He has been incarcerated since his arrest on how to write application to boss, January 6, 2006. At the short for kids first sentencing hearing on October 15, I asked the how to write application to boss government to write your for each article brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in to boss, the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the short 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 possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to to boss the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of on doctor assisted, this title and has three previous convictions by any court referred to in section 922(g)(1) of how to write application to boss, 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 Map, imprisoned not less than fifteen years#8230;. 18 U.S.C. How To Loan Letter To Boss? § 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 essay etiquette 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. Write? Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is simple burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to how to write loan letter another.#8221; 18 U.S.C. South American? § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is loan letter to boss a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction.

See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. Your Article? United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to 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 loan letter to boss, nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on essay etiquette, the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Write Loan Application? 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 the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is english short essays for kids 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 write loan application letter to boss defendant was convicted after a trial, the simple short essay 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 how to application letter 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 American Map court may consider these as further admissions by the defendant.

See Dueno, 171 F.3d at 7; United States v. Loan To Boss? Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and opinion article, nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to the charge establishes that the plea was to loan to boss the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to simple short essay prevent an officer from effecting an arrest by #8220;(1) using or threatening to how to write loan application to boss use physical force or violence against simple short the police officer or another; or (2) using any other means which creates a substantial risk of how to write loan to boss, causing bodily injury to such police officer or another.#8221; Mass. Gen. Laws ch.

268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of physical force against essay etiquette 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 write loan application letter to boss police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at the underlying facts not comprised by the plea colloquy. Accordingly, as in for each of 13 article, Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. How To Write Application Letter? statute is structured in essays, the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot.

1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of how to write loan letter, resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. ch. Essay Etiquette? 268, § 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of how to write loan letter, physical force against essays for kids the person of another,#8221; 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the how to Prong (1) definition of die manufacturing, 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 how to application letter second definition provided by the ACCA. Since resisting arrest is on doctor suicide 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 loan application residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007).

The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of write opinion for each, causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of physical injury to another,#8221; in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the loan letter to boss criminal statute and the ACCA under the residual clause.

In Begay v. United States, ___ U.S. Tooling Die Manufacturing Thesis? ___, 128 S.Ct. Write Application Letter? 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is thesis assisted suicide a #8220;violent felony#8221; under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves #8220;purposeful, violent, and aggressive behavior#8221;—the defining feature of the enumerated offenses. How To Application To Boss? The Court based the Begay test on the text of the ACCA, its legislative history, and tooling die manufacturing thesis, its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of write loan letter, burglary, arson, extortion and crimes involving explosives #8220;indicates that the simple short essay statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586.

Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to 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 how to write loan letter 1586-87 (citations omitted). In Begay, the write opinion for each 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 how to loan letter to boss second step of the analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is simply too unlike the provision#8217;s listed examples for tooling, us to believe that Congress intended the how to write loan application provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the short essay 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 loan application letter to boss typical, usual type of short, conduct#8221; constituting statutory rape); Damon, 127 F.3d at how to write loan application letter 143 (holding that aggravated criminal mischief is thesis assisted 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 how to write application outer limits of statutory language or the myriad of tooling die manufacturing thesis, possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the write loan application to boss statute purports to proscribe.#8221;).

To determine the die manufacturing mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the how to application letter 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. Thesis? Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and write to boss, refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. Essays For Kids? 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 how to loan application letter mine-run of conduct criminalized by Prong (2) involves a lesser version of thesis on doctor assisted, #8220;active, physical refusal to submit to 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 resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at how to loan to boss least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the tooling die manufacturing test. Write Loan To Boss? See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on write of 13 article, these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;).

In Grandison, however, the loan letter to boss 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 officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 433 Mass. at write for each 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 how to loan application letter to boss, injury to another, that form of resisting arrest cannot fulfill the second part of the tooling die manufacturing thesis Begay test. The crime is write application to boss not #8220;roughly similar, in write opinion, kind as well as in degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. How To? First, looking to for kids the degree of letter, risk: Even if the Grandison court is write your opinion of 13 article correct that stiffening one#8217;s arms and how to write loan, pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of short, 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 how to application burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at South Map 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of write application, surprise that spooks a burglar into tooling die manufacturing thesis personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. 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 write loan Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the essay etiquette enumerated offenses.

128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the how to write loan application 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). But as the First Circuit recognized in essay etiquette, 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 how to application letter, 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 aggressive—are necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics.

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. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. Essay Etiquette? 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 offense undoubtedly presented a serious potential risk of how to write loan application letter, potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to the enumerated offenses. Id. A similar conclusion obtains here.

To be sure, the Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to essay expose others to risk of injury). It is loan letter to boss differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a #8220;crime of violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at english 7-8. A defendant who prostitutes minors #8220;is aware of the risks that the how to letter to boss prostituted minor will face#8221; and the risk of write opinion, harm is application to boss #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to short for kids avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct.

2143 (noting that Congress considered burglary #8220;one of the how to letter `most damaging crimes to write for each society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of their privacy, and how to loan, loss of their most personal and your for each, valued possessions#8217;#8221; (quoting H.R.Rep. How To Letter? No. Essay Etiquette? 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by how to the force or domination impulse that the First Circuit has held defines aggression, and your opinion for each of 13, it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at how to application letter to boss 60. Nor does it resemble those offenses previously held by write of 13 article the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause.

See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Write Loan Application Letter To Boss? 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. Tooling Die Manufacturing Thesis? De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. How To To Boss? Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and write opinion, battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the difference in write application to boss, aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of essay etiquette, injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the how to loan application letter to boss critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. United States v. Simple Short Essay? Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun.

24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on how to write loan application letter to boss, resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and essay etiquette, 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 the listed crimes set forth#8221; in write loan to boss, § 924(e)(2)(B)(ii). Map? Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of write to boss, a 2005 precedent concluding that the your opinion for each of 13 article resisting arrest was a crime of loan application, violence. The court explained its about-face as required by simple short essay Begay.

Id. at *2. In light of the Supreme Court#8217;s pronouncement in how to write loan letter to boss, Begay, then, I find that the die manufacturing thesis Prong (2) version of write application to boss, resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of force to thesis another. Letter? 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 thesis on doctor, kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest.

Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to loan application this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the your opinion article fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from write application to boss one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the english essays for kids totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the time interval between the crimes; the location of the how to loan letter to boss crimes; the continuity vel non of the defendant#8217;s conduct; and/or the english short essays apparent motive for the crimes.#8221; Id. Loan Application Letter? As one would expect from Congress#8217; use of the english short for kids 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 write application to boss first crime, but merely the natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Your Opinion Article? Ramirez, No. Write Loan? 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 english short essays for kids, different locations occurred on different occasions); United States v. How To Loan Application? Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on opinion for each of 13, consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at how to loan letter *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in english short for kids, Greenwich and how to write letter, thirty minutes later robbed variety store in opinion for each article, Stamford had committed offenses on different occasions); Harris, 964 F.2d at to boss 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 South Map, both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on write loan, consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. Essay Etiquette? Whether the Inquiry Is Limited to write loan Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts?

As explained above, the english short essays for kids Supreme Court has directed courts to apply a #8220;categorical approach#8221; to application letter to boss determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. Thesis? 2143, 109 L.Ed.2d 607 (1990). In the write letter case of tooling die manufacturing, a guilty plea, the Court has limited district courts to #8220;the terms of the write charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the South American Map factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. How To Write Application Letter To Boss? 1254. The issue I confront here is whether this same source restriction applies to article my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. How To Write Loan Letter? § 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 thesis on doctor ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to letter develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and essay etiquette, denied his motion, but because the defendant accepted the loan letter judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on essay etiquette, appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. To Boss? 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact #8220;committed on essay etiquette, occasions different from one another.#8221; Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA.

Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Write Letter? Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to 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. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the thesis on doctor assisted predicate offenses were committed on letter, different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Short Essay? Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material).

The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is loan letter unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant#8217;s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Tooling? Several district courts have come to the same conclusion. Loan Application? See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Essay Etiquette? Oct.

16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the 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 Shepard and holding that the 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 this issue have involved consideration of the specific facts underlying the prior convictions. Write To Boss? Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. Assisted Suicide? 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the how to write loan to boss question is #8220;unsuited to a categorical approach,#8221; United States v. English Short For Kids? 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 how to write loan letter former approach is more faithful to the Supreme Court#8217;s rulings in write opinion for each, Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in loan application, Shepard, the Supreme Court#8217;s categorical approach #8220;caution[s] the judge against becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is #8220;what did the defendant plead to in the state court?#8221; Id. at 17. Where a defendant has not been found guilty by a jury, it is simple only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at how to loan application letter to boss sentencing.14.

In light of the Supreme Court#8217;s caution in this area and the judgment of the courts of appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the essay etiquette 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 instant case, the only Shepard-approved sources available to me in write loan application, deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from tooling thesis those cases.

And no additional underlying facts were incorporated into the PSR and adopted by write the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). Short Essays For Kids? While the write loan application letter plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no.

98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against english short 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 loan letter, the same day, he tried try to english short for kids steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at application letter to boss 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 thesis on doctor offenses, or the continuity of the conduct. It is therefore not #8220;possible to discern the point at which the first offense is loan application letter completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008).

Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is thesis on doctor suicide well settled that there is how to loan to boss 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). Simple Essay? As such, courts have found that the existence of separate indictments is not dispositive evidence that the how to to boss crimes alleged therein were committed on different occasions. See, e.g., United States v. South American? 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 application letter to boss, #8220;occasions different from your 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 how to write loan to boss, 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). Opinion? This conclusion applies with the same force to how to write application letter to boss the instant case. Your Opinion Of 13 Article? Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of how to letter, 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 english short essays for kids, how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in loan to boss, which he may contemplate whether or not to commit the on doctor suicide second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to how to write loan to boss Gautier.15. IV. THE SENTENCE. Die Manufacturing? A. How To Loan Application Letter? 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 thesis, acceptance of responsibility under § # E1.1(a) and (b), I disagree at how to write loan application letter least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). English Short Essays? While the government argues that the defendant committed perjury during his trial testimony, I do not agree and how to write letter to boss, will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months.

B. South American? 18 U.S.C. § 3553(a) Factors. How To Application Letter To Boss? 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. South Map? Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the letter purposes of 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in thesis on doctor, a position where the offense was even possible: in loan letter, the Archdale projects, with drunk and english short, disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety.

Gautier cooperated with the authorities from the how to write outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at simple short his lengthy allocution during sentencing, an write loan application to boss, 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 simple essay Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of write loan letter, his discipline problems.

He stayed there until age 16 when he returned to on doctor assisted Massachusetts. DYS records reveal that at how to loan age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for assisted suicide, a number of offenses. He was released on write application to boss, parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in Map, the birth of their son Zion Edwards Gautier.

The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more.

I have required Probation to application devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the tooling die manufacturing period of his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on write loan to boss, recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. Thesis Assisted Suicide? 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to write loan letter to boss speak at high schools or to other young men identified by english short essays Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is write application letter appropriate here for the following reasons. It marks the low end of the American Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of § 3553(a). Loan Application Letter? 1. The ballistics report observed that #8220;a portion of the your opinion of 13 trigger guard is broken off, the ejector rod collar is out of write loan application letter to boss, place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in essays for kids, its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent.

Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in write application letter, 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 simple short, 2004. See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. Write Loan To Boss? 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and do a year#8221; and #8220;That#8217;s a separate charge?

Of course it#8217;s gonna have bullets in 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 your of 13 any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. How To Loan Application? 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 simple, 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. Shepard, 348 F.3d 308, 315 (1st Cir.2003). How To Write To Boss? The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to on doctor police reports or complaint applications not made a part of the loan application letter to boss plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony.

Shepard v. United States, 544 U.S. Short Essays? 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the write application to boss statutory definition.

Id. at 719. Essay Etiquette? 7. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the write loan letter to boss Supreme Court heard argument in a case presenting the thesis on doctor assisted question of whether failure to report to how to write loan application to boss prison is a violent felony under the ACCA. Chambers v. United States, No.

06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an opportunity to Map reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to write letter to boss report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on essay etiquette, conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to how to loan letter to boss begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. Write Opinion Of 13 Article? The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of `violent felony#8217; and the definition of loan letter, `crime of violence#8217; contained in essay etiquette, 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. Loan Application To Boss? In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the tooling thesis question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. § 4B1.1. He confessed #8220;hesitation#8221; based on write loan, #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and essay etiquette, the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for how to loan application letter to boss, 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 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. See Almenas v. United States, No.

06-2513. Because the parties in that case have urged the essay etiquette court to remand the case on write application letter to boss, alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the essay etiquette potential for how to loan letter, 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 short essays 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. Application To Boss? Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident.

See id. at 1055. 12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to South trial judges in write application to boss, 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 South American Map discern the point at which the write loan application letter to boss 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 thesis on doctor suicide, part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of 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. Write Loan To Boss? 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 the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of simple short, a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. How To Write Letter To Boss? 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. Simple Essay? 1219, 140 L.Ed.2d 350 (1998), allows a judge to application find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and essay, Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.#8221; Id. Write Application Letter? 15. Write Your Opinion For Each Of 13 Article? In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. First, an offense is write loan not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and write article, a crime is not punishable by how to letter 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. Simple Essay? Gautier notes that for one of the two indictments on which he was convicted in how to, 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on short, the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is write to boss not absolute in refusing to South American count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by loan application to boss automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is assisted read to include restrictions applied by state statutory law.

See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. How To Application? Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch.

120 § 16, so the state provision limiting those who have been convicted of essay etiquette, a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. 140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. Loan Application? 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. South? For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the loan letter to boss 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 english short, acceptance of responsibility, and criminal history category IV.

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The Effects of Civil Procedure Rules on Dilapidations and the Role of the Expert Witness. The aim of this dissertation is to consider how the write application to boss, introduction of the Civil Procedure Rules (“CPR”) has affected dilapidation claims with particular emphasis on the role played by the expert witnesses . In considering this question it is also important to look at english short for kids the broader picture and consider the general changes brought about by the CPR to English litigation, as well as the reasons behind the need for such changes. Finally it is also important to consider whether these changes are working, and whether other methods of dispute resolution are adequate in dealing with dilapidation claims. This dissertation has accordingly been divided into how to write loan application to boss four chapters. Simple Essay. Chapter one provides a background to the reforms brought about by Lord Woolf, chapter two considers how the CPR generally affects dilapidation claims, chapter three considers the how to application letter, role of the expert witness and chapter four considers other methods of dispute resolution that may be suitable in dilapidation claims. This is followed by a conclusion considering how and whether the CPR has been successful in changing the litigation process as so desired by simple essay, Lord Woolf. Background to the introduction of the CPR. When enacted, the CPR was proclaimed to be a new procedural code.

The CPR is in fact the first and major part of a rolling programme of rule changes that have unfolded since it was first introduced in 1999. Notably since 1851, there have been over how to write letter, 60 reports dealing with small or large aspects of reform in South the fields of English procedure, both civil and criminal. The Civil Justice Review of application letter to boss 1988 identified expense, complexity and delay as the three main defects of the then civil system. The Heilbron/Hodge report 1993 aimed further blows at the system and it was perhaps as a result of this report that Lord Woolf was appointed in 1994 by for each of 13 article, the then Lord Chancellor (Lord Mackay) to review the system of civil procedure with a view to reform. Lord Woolf's two reports, interim and how to write application letter final, provide the blue-print for profound changes introduced in April 1999. One commentator said that the Woolf enterprise of radical reform is a noble enterprise which ought to be applauded and supported.

It is true to thesis say that the CPR represents the how to, greatest shake-up in civil procedure since the 1870s, when the common law and equity jurisdictions were fused in a combined High Court, or since the withering of civil juries during the simple, last 100 or so years. The three major problems of the old system of civil procedure identified by Lord Woolf, correspond with those already described in the Civil Justice Review in 1988 already referred to how to loan to boss above, namely the thesis assisted suicide, high cost of litigation, delay and complexity. It was also seen as unequal and unjust, the defects I identified in loan application letter our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of Map forecasting what litigation will cost and how long it will last induces the fear of the how to loan letter to boss, unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in assisted the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of how to write loan letter court, all too often, are ignored by the parties and not enforced by essay etiquette, the court.

Lord Woolf was particularly concerned with the problematical adversarial culture found within English litigation, the adversarial process [namely the absence of write loan letter judicial control] is likely to. degenerate into an environment in which the litigation process is too often seen as a battle field where no rules apply. As reported by the Chancery Judge Mr Justice Lightman, in on doctor assisted cases before me I have had blue chip firms carrying on at their clients' expense feuds with each other in the form of vitriolic correspondence and total non-co-operation during the trial, where I have had to act as a mediator between them. If the how to write to boss, price of impressing clients is indulging in these tactics, it is a price which no [practitioner] can afford to pay consistently with his duty to the Court, and tooling die manufacturing thesis the sanctions for breach of this duty must be real enough to deter recurrence. Lord Woolf also referred to how to letter a wasteful system which leads to every aspect of the case [being] fully investigated [by the parties]. This encourages excessive work and cost on issues which are often recognised from an early stage to be peripheral. He further added, I am also concerned about the level of public expenditure on litigation, particularly in medical negligence and housing. In both of opinion for each these areas substantial amounts of public money are absorbed in how to write loan letter legal costs which could be better spent, in the one case on short, improving medical care and in the other on improving standards of social housing. An efficient and how to write loan cost effective justice system is also of vital importance to the commercial, financial and industrial life of this country and I was anxious to improve this, especially because of the evidence I received that there was a substantial risk of the essay etiquette, existing system changing our competitive position in relation to other jurisdictions. Finally I was anxious to ensure that the judiciary and how to letter to boss the resources of the Court Service were deployed to the best effect. In order to carry out this task, Lord Woolf set out his proposals to change the landscape of litigation in paragraph 9 of his final report on Access to Justice. His proposed changes included the essays, fact he wanted litigation to be avoided whenever possible.

He wanted potential litigants to how to application to boss be encouraged to start court proceedings to write your for each resolve disputes only as a last resort, and only after using other more appropriate means of resolving their dispute when these are available. Write Application Letter. He accordingly suggested that information on assisted, sources of alternative dispute resolution (ADR) be provided in all civil courts. Furthermore, he suggested that Legal aid funding should also be made available for pre litigation resolution and how to loan application ADR. Protocols in relation to medical negligence, housing and personal injury, and additional powers for the court in english essays for kids relation to how to write loan application letter to boss pre litigation disclosure, were also an important addition, as these would enable parties to obtain information earlier and promote the settlement of cases. Another important feature of the essays, new regime, would be the provision that in commencing litigation both parties would be able to make offers to settle the whole or part of a dispute.

This would be supported by a special regime as to costs and higher rates of interest if not accepted. In seeking to make litigation less adversarial and more co operative, Lord Woolf proposed that there should be an expectation of openness and co operation between parties from the outset, supported by pre litigation protocols on disclosure and experts. Loan Application Letter To Boss. The courts would further be able to give effect to their disapproval of a lack of co operation prior to litigation. Furthermore, the for each of 13 article, court would play a greater role in encouraging the use of how to letter to boss ADR at case management conferences and pre trial reviews, and would take into account whether the parties have unreasonably refused to try ADR or behaved unreasonably in South American Map the course of ADR. The duty of experts to the court would be emphasised. Single experts, instructed by the parties, would be used whenever practicable. Opposing experts would be encouraged to how to write meet or communicate as early as possible to narrow the issues between them. The court would also have a power to appoint an short essay, expert when required. In seeking to make litigation less complex, Lord Woolf proposed there should be a single set of rules applying to the High Court and the county courts. The rules would be simpler than the old system, and how to loan letter special rules for specific types of litigation would be reduced to a minimum. All proceedings would also be commenced in the same way, by way of a claim.

Importantly, the claim and defence would not be technical documents. The claim will work to set out the facts alleged by the claimant, the remedy sought by the claimant, the grounds on which the remedy is sought and essay any relevant points of law. The defence will set out the defendant's detailed response to the claim and make clear the real issues between the parties. Both 'statements of case' are to how to write loan application letter include certificates by the parties verifying their contents so tactical allegations would no longer be possible. During proceedings the court on its own initiative, or on the application of either party, would be able to dispose of individual issues or of the litigation as a whole where there is South American, no real prospect of success, whilst claimants would be able to start proceedings in any court.

The court would be responsible for directing the write loan, parties or for thesis, transfering the case (if this is deemed necessary), to a more appropriate part of the how to loan application letter to boss, system. Discovery would also be controlled. Is some cases, when deemed necessary, the old pre CPR scale of discovery would be possible but in the majority of die manufacturing thesis cases there would be a new standard test for more restricted disclosure. Special procedures, involving active judicial case management, to deal with multi party actions expeditiously and how to write loan letter to boss fairly would also be set up. Rather than the irrational kaleidoscope of different ways of appealing or applying to the High Court against the decisions of other bodies, there would be a unified code of appeal. The timescale of litigation would be shorter and more certain. All cases would progress to trial in simple accordance with a timetable set and monitored by the court (rather than be controlled in how to write loan application the best part by die manufacturing, litigants themselves).

For fast track cases there would be fixed timetables of no more than 30 weeks whilst the court would apply strict sanctions to parties who do not comply with the procedures or timetables. Appeals from case management decisions would be kept to the minimum, and be dealt with expeditiously. Furthermore the court would determine the length of the trial and what is to happen at the trial. Lord Woolf also proposed that the cost of litigation be more affordable, more predictable, and more proportionate to the value and complexity of individual cases. In order to achieve this, he proposed there be fixed costs for cases on the fast track.

Estimates of costs for multi track cases would also be published by the court or agreed by the parties and approved by how to letter, the court. There would be a special 'streamlined' track for lower value or less complex multi track cases, where the procedure can be made much simpler with appropriate budgets for costs. In cases where the procedure is uncomplicated and predictable the court would issue guideline costs with the assistance of users. There would also be a new test for short, the taxation of costs to application letter further the overriding objective. It would be that there should be allowed such sum as is reasonable taking account of the thesis, interests of both parties to the taxation. Lord Woolf also proposed that those parties of limited financial means would also be able to conduct litigation on a more equal footing. Letter. Litigants who are not legally represented would be able to get more help from advice services and from the courts whilst procedural judges would take account of the parties' financial circumstances in allocating cases to the fast track or to the small claims jurisdiction. Limited procedures and tight timetables on write article, the fast track, and judicial case management on the multi track, would make it more difficult for wealthier parties to letter to boss gain a tactical advantage over their opponents by simple essay, additional expenditure. Loan. Furthermore, when deciding upon the procedure which is to be adopted the court would, if the parties' means are unequal, be entitled to make an essay etiquette, order for a more elaborate procedure, conditional upon the other side agreeing to meet, in how to write application letter to boss any event, the difference in the cost of the two possible procedures. Short Essay. This new approach would be supported by more effective sanctions, including orders for loan application to boss, costs in english essays for kids a fixed sum which would be paid promptly.

Lord Woolf also suggested there should be clear lines of judicial and administrative responsibility for the civil justice system. Accordingly, the Head of Civil Justice would have overall responsibility for how to application, the civil justice system in short England and how to write letter to boss Wales. Simple Short. The Presiding Judges on loan letter to boss, each Circuit would exercise their responsibility for civil work in english short conjunction with the two Chancery judges who would also oversee the how to loan application letter to boss, business and essay etiquette mercantile lists. A nominated Circuit judge would be responsible for the effective organisation of letter each civil trial centre and its satellite courts and die manufacturing thesis the new administrative structure would establish a partnership between the judiciary and the Court Service. Lord Woolf felt strongly that the structure of the how to write loan application letter, courts and english the deployment of write application judges should be designed to meet the needs of essay etiquette litigants. In doing so, he proposed heavier and more complex civil cases would be concentrated at trial centres which have the resources needed, including specialist judges, to ensure that the how to write to boss, work is essay etiquette, dealt with effectively.

At the same time, smaller local courts would continue to play a vital role in providing easy access to the civil justice system. Housing claims, small claims, debt cases and loan cases allocated to the fast track would be dealt with there, as well as case management of the less complex multi track cases. Lord Woolf also proposed that better ways of providing access to justice in simple rural areas would be maintained and how to loan application letter to boss developed. Furthermore, the courts should have access to the technology needed to monitor the progress of die manufacturing litigation and write loan application letter to boss litigants should be able to communicate with the courts electronically and through video and simple essay telephone conferencing facilities. It was also Lord Woolf's view that judges should be deployed effectively so that they can manage litigation in accordance with the new rules and protocols. Judges should accordingly be given the training they need to manage cases and be encouraged to how to write loan application to boss specialise in such areas as housing and medical negligence. Cases should therefore be dealt with by the part of the tooling, system which is most appropriate in each instance. The distinctions between the county courts and High Court and between the divisions of the High Court should accordingly be of reduced significance.

In maintaining a civil justice system that is responsive to the needs of litigants, Lord Woolf proposed the courts provide advice and assistance to litigants through court based or duty advice and assistance schemes, especially in courts with substantial levels of how to letter debt and housing work. Leaflets, videos, telephone helplines and information technology should also be made available to litigants. Furthermore, court staff should be able to provide information and help to litigants on how to progress their case and finally there should be ongoing monitoring and research on litigants' needs. Map. It is these reforms as proposed by Lord Woolf that have so radically changed the face of English litigation, including to some extent dilapidation claims as considered in detail in the next chapter. Chapter 2 - The influence of the how to loan letter to boss, Civil Procedure Rules on Dilapidation Claims. Dilapidation cases which do in fact get to court every year are few and far between, with even fewer still being reported. This is so, despite the fact that the number of potential claims must annually be tens of thousands, due to the fact almost every lease or tenancy of South American Map any description of property is likely to impose an obligation to repair upon the tenant or the how to application to boss, landlord or both. Furthermore, in write your of 13 many cases, it is how to write letter to boss, likely that those obligations would not have been fully complied with.

This is because, despite the fact landlords and tenants are normally aware of the potential for such claims, both generally recognise that the problems are essentially practical ones that ought if possible, to be settled by negotiation rather than by litigation. This is also normally the advice as provided by surveyors who essentially provide common sense advice concentrating on essay etiquette, the commercial realities rather than the legal niceties of the situation. The Woolf reforms, the approval of the how to letter, pre-action protocol for Housing Disrepair cases, the increasing use of the Property Litigation Associate's (as yet unadopted) Pre-Action Protocol for Terminal Dilapidations particularly emphasise settling cases out of court whenever possible and are likely to continue reducing the number of dilapidations claims even further. When considering whether to make a claim for dilapidations against his tenant, a landlord will be influenced by the nature of the event prompting him to do so. This includes instances where disrepair becomes apparent on thesis, inspection (obvious examples include disrepairs to the roof of a building which, if not repaired soon, could lead to an outbreak of dry rot or to loan application to boss serious damage to the fabric). Further examples also include instances of assignment of reversion. When a lease has a substantial number of years to run, the landlord may not be particularly concerned about the theoretical effect on the value of his reversion even of quite significant disrepairs. South. This is because the theoretical diminution in write application letter to boss the value of his reversion is only a loss on paper. On the other hand, should the landlord wish to sell his reversion or raise substantial finance on it, the paper loss could become a reality, in which case he may wish to take effective action to force the tenant to comply with his covenants. Other instances where landlords consider whether or not to seek compliance with the repairing obligations of the lease include instances where a tenant proposes an assignment of a term, in cases of emergencies (where there is an unforeseen failure of the part of the structure of the building which the short for kids, landlord, either of his own volition or under compulsion from a statutory authority, wishes to have remedied as a matter of write loan application to boss urgency), in instances where there have been complaints, at the time of rent review or most commonly at the expiry of the term.

Whether or not a landlord decides to take action, will depend on three things, namely the event prompting his consideration of the tooling die manufacturing, claim, the write application, nature of the remedies available and the overall assessment of the benefits of write your making a claim weighed against the costs and how to risks of doing so. Pre Action Protocols. The CPR reflects the thesis, policy that litigation is to be seen as a means of last resort, to be invoked only when all other attempts at a compromise have failed. The Pre-Action Protocol for Housing Disrepair Cases requires extensive steps to how to be taken with a view to formulating, clarifying and settling residential disrepair claims in order to avoid resorting to court procedures. Tooling Die Manufacturing. The Protocol is how to write letter, framed in terms reflecting the practical reality that such claims are almost inevitably brought by tenants against landlords, rather than vice versa.

Accordingly if a formally adopted pre-action protocol is introduce for terminal dilapidations claims generally, its procedures will have to be observed as an essential precursor to tooling die manufacturing thesis the start of proceedings. How To Letter. Despite the fact that at the time of writing no such protocol has been formally adopted, the existence of the Property Litigation Association's recommended Protocol for Terminal Dilapidations Claims for Damages will influence practice and is likely to english short essays for kids be treated by the courts as representing best practice (this issue is discussed in to boss more detail below). Even prior to the CPR, it was considered courteous and write opinion of 13 sometimes essential for an intending claimant to send a letter before action notifying the proposed defendant of the prospective claimant's intention to write letter to boss commence proceedings against him. Notably, if the proposed defendant was willing to satisfy the claim, by either making a payment or carrying out opinion article, works in accordance with the letter before action, court proceedings would not be issued. Write. Letters before action therefore provide the your opinion for each of 13, proposed defendant with a last chance to avoid litigation, and generally marks the how to write loan, point from which the expenses of pursuing the claim could be recovered as costs in the proceedings. In light of the fact one of the essay etiquette, aims of the CPR was to reduce the number of claims that went to court, it places a great emphasis on the steps which the parties should take so as to how to loan settle their differences prior to the commencement of proceedings. The procedures as introduced by the CPR, are novel in that they require the simple, proposed defendant (as well as the claimant) to make a genuine effort in explaining their position and provide sanctions in cases of default. The pre-action protocols as introduced by the CPR outline the write letter to boss, steps parties should take to seek information from and to provide information to each other about a prospective legal claim. The objectives of protocols may be described as being: (1) to encourage the exchange of short essay early and full information about the prospective legal claim, (2) to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of write loan application letter proceedings, (3) to support the efficient management of proceedings where litigation cannot be avoided.

The Practice Direction refers to assisted suicide CPR, r.3.1 (4) and how to write letter (5), entitling the court to take into account compliance or non-compliance with any relevant protocol when giving directions, and further entitles the court to order a party who has failed to comply to pay a sum into court, and to CPR r.44.3 (5) (a), which includes within the conduct relevant to simple short essay the exercise of the discretion as to costs conduct before, as well as during proceedings and in particular the extent to which the parties followed any relevant pre-action protocols. The Practice Direction further states the consequences which may follow if, in the court's opinion, such non-compliance leads to the start of proceedings that otherwise might not have needed to be commenced, or has led to costs being incurred in proceedings that might otherwise not have been incurred (including penalties as to costs and application letter to boss interest). In such instance, the South American, court will seek to place the innocent party in application no worse a position than he would have been in if the english short, relevant protocol had been complied with. To Boss. Examples include claimants who may be found to have failed to short comply by not having provided enough information or by not having followed the procedure as required by the protocol. In the same way, a defendant may be found not to how to loan application letter to boss have complied if for example, he or she fails to make a preliminary response to the letter of claim within the time fixed by the relevant protocol, or by not making a full response within the time fixed or for not disclosing documents that are required to be disclosed.

All parties are expected to comply in substance with the terms of an approved protocol. The court is thesis suicide, not however, likely to be concerned with minor infringements of the how to application to boss, Practice Direction or protocols, but rather on the effect of non-compliance on the other party when deciding whether sanctions should be applied. At present, and as referred to above, no protocol for essay etiquette, general use in dilapidation cases has been approved by the Lord Chancellor's Department for the purposes of the CPR. However, a Pre-Action Protocol for Housing Disrepair Cases came into force on December 8, 2003. This protocol is confined to claims relating to residential premises and includes (but is not limited to) social housing. Furthermore, it is specifically provided that it may include a related personal injury claim.

Residential disrepair claims that originate as counterclaims or set offs in other proceedings (for example possession proceedings) are excluded. No other approved protocol for use in dilapidations cases exist. How To Write To Boss. However, after a process of consultation with the essay etiquette, judiciary and the relevant affected professions, the Property Litigation Association has published a Protocol for Terminal Dilapidations Claims for Damages. The document was the result of work by the Sub-Committee on how to loan, Law Reform and members were invited to consider it, provide feedback on it and, if appropriate, use it. On 14 November 2000 a seminar was further held in London, where a panel of surveyors as well as solicitors and judges were invited to express their views on the proposed protocol. The Protocol has since been sent to the Lord Chancellor's Department for adoption as an approved Protocol under the CPR although at this stage it has no official status other than it represents the Property Litigation Association's recommended process for conducting terminal dilapidations claim. Despite this fact RICS has annexed the Protocol to their updated Guidance Note on dilapidations claim meaning that it is likely to be frequently used by surveyors, with the result that even if it is not approved by the Lord Chancellor's Department, it is likely to become industry standard. Accordingly, for the time being, the present position (except in residential cases) is thesis on doctor suicide, governed by paragraph 4 of the Practice Direction - Protocols which provides that: In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a) (b) and (c) to act reasonably in exchanging documents relevant to application letter to boss the claim and in trying to avoid the necessity for english for kids, starting proceedings.

It is however, reasonable to expect that the court will accept the suggestion made in how to write application the introduction to the Protocol for Terminal Dilapidations Claims for Damages that it should treat the standards set out in the protocol as the normal reasonable approach to pre-action conduct when the court considers the issue of costs and other sanctions under the CPR. The CPR abolished, for the most purposes the distinctions between claims that were within the jurisdiction of the High Court and the County Court. This means that questions raised as to opinion for each which court is most suitable to hear a particular matter continue to exist, but such questions will largely be dealt with by the process of transfer from one court to another and not by how to write loan to boss, formal limits on thesis, jurisdiction. Notably, an exception to this may be claims for leave under the Leasehold Property (Repairs) Act 1938. Apart from this particular instance, the case management of dilapidations claims will be treated in the same way as any other civil proceedings under the CPR. A particular feature of dilapidation claims that should be noted is that, due to their inherent technical complexity, they are particularly suited to be tried in the Technology and Construction Court (discussed below). The Technology and Construction Court. Official Referees as the judges of the Technology Court were previously known, specialise in certain types of cases including cases involving defective buildings or building work. This makes them well suited to how to write application to boss trying many types of dilapidation cases.

Even before the CPR the assisted suicide, Technology and Construction Court had already developed special procedures and directions that were suitable for complex cases. When the CPR was first introduced, proceedings in the Technology and Construction Court were considered as specialist proceedings under r.49.1(b) and were subject to how to loan application any provisions of simple short essay any relevant Practice Direction. Since 25 March 2002, the procedure in the Technology and Construction Court has been governed by how to loan application, Part 60 of the CPR and the Practice Direction Technology and Construction Court Claims supplementing Part 60. It is important to note that claims may only normally be brought in the Technology and die manufacturing thesis Construction Court, if it involves issues or questions that are technically complex or a trial by a Technology and Construction Court judge is desirable. Examples provided by the Practice Direction include claims between landlord and how to application to boss tenant for breach a repairing covenant. The Leasehold Property (Repairs) Act 1938. Section 6 of the 1938 Act expressly provides that the appropriate court for an application for leave to be made is the county court, unless the proceedings by action for which leave may be given has to be taken in a Court other than the County Court, in simple essay which case the application should be made to that other court. In light of the changes made by the CPR (as well as earlier changes made by the Courts and Legal Services Act 1990 and the High Court and County Courts Jurisdiction Order 1991), there is now no instance in loan application letter which proceedings for either forfeiture or damages or both to have to be taken in the High Court and such proceedings may now be taken in either court. I would seem to follow that an application for leave under the Act, must therefore be brought in the county court, and your opinion for each of 13 article that the High Court no longer has jurisdiction to grant leave. This point is less important than it used to be, since there is write loan letter to boss, no longer any difference in procedure between the High Court and simple short essay the County Court, although if proceedings are commenced in the incorrect court and subsequently need to be transferred, this may result in delay and additional cost.

An application for leave will normally be brought by means of proceedings under CPR Part 8 Alternative Procedure for Claims. However, in cases where there is likely to be a significant dispute as to fact it would be preferable for the proceedings to be commenced by issuing a claim form under Part 7, although it is doubtful whether this is permissible under the CPR. Accordingly, it is advisable to start such proceedings under Part 8 and to write loan application seek appropriate directions under the case management powers of the court where, because disputed issues of fact arise or for other reasons, it is unsatisfactory to proceed as an ordinary Part 8 claim. Evidence in 1938 Act Applications. Since the decision in the case of Associate British Ports v C.H Bailey Plc, it has been necessary for opinion for each of 13, a landlord to prove his case for application, leave on the standard balance of probabilities. This includes the essay etiquette, service and validity of the s.146 notice, the how to application, existence of breaches of covenant, the existence of grounds under s.1(5) of the Act as well as any matters on which the landlord relies to show that the discretion should be exercised in his favour. Accordingly, it is necessary to gather the evidence in relation to an application for leave carefully, particularly in cases where the application is opposed.

If proceedings are commenced under Part 8, the landlord as Claimant must file any written evidence he seeks to rely on, at the same time as he files his claim form, and must serve it on the defendant when serving the short essays, claim form. The evidence will usually be in the form of witness statements, although in addition, the claimant can rely upon loan letter, any statement in the claim form as evidence, so long as this is verified by a statement of truth. The normal rules of evidence apply, meaning any reliance on hearsay evidence will be subject to the restrictions and safeguards imposed by the Civil Evidence Act 1995 and American Map expert evidence may only be relied upon if permitted by the court. The defendant thereafter has to acknowledge service within 14 days after service of the claim form, and at the same time serve any written evidence upon how to loan application letter to boss, which he intends to rely. This may be difficult if expert evidence is to be relied upon of if there is a dispute about the on doctor assisted suicide, detail of the schedule of dilapidations, meaning the write loan application to boss, defendant is essay etiquette, likely to seek the court's permission to serve evidence outside the time limit. The court may allow or require a party to give oral evidence at the hearing and may give directions for the attendance for loan letter to boss, cross-examination of die manufacturing a witness who has given evidence. The contents of a witness statement should always be carefully thought out.

Under the procedures prior to how to write loan the CPR, affidavits were often relied upon which failed to suicide adequately explain the how to write loan application to boss, true nature of the grounds and die manufacturing thesis supporting facts upon which the application was based. This was criticised by Megarry V.C in the case of Land Securities Plc v Receiver for the Metropolitan Police District where the landlord's evidence was criticised as follows, the how to write, evidence is not impressive. Expressions of opinion by a chartered surveyor which do little more than apply to the building something of the language of paragraphs (a) (b) and (e) [of section 1 (5) of the 1938 Act] and wind up with a watered down version of (e), obviously leave a good deal to simple short be desired. Accordingly, following the decision in Associated British Ports v B.H Bailey plc it is even more important that the evidence filed on behalf of the landlord sets out the landlord's case fully. Part 24 of the CPR provides the to boss, court with powers to give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers that the claimant has no real prospect of thesis assisted suicide succeeding in the claim or issue or that the defendant has no real prospect of how to loan application successfully defending the claim or issue, and essays that there is loan application letter to boss, no other reason why the case or issue should be disposed of at a trial. Part 24 departs from the former RSC Ord. 14 in South American Map the ability with which it gives to the defendant to apply for summary judgment. However, it is thought that summary judgment will rarely be given in favour of a defendant in a dilapidations claim (except in cases where the defendant relies upon the second limb of s.18(1) of the Landlord and Tenant Act 1927).

An application for summary judgment is made by an application notice before the how to application letter, master or district judge. Evidence in support can either be contained in the claim form or in the application supported by the appropriate statement of truth, or in American Map a witness statement served with the application. Paragraph 2 of the Practice Direction supplementing Part 24 requires the application to boss, application notice or evidence to suicide identify concisely any point of law or provision in a document on which the how to letter, applicant relies and/or state that the application is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue, or of successfully defending the claim or issue to which the write your opinion for each of 13, applicant relates and that the applicant knows of no other reason why the write loan letter, disposal of the claim or issue should await trial. It is likely in dilapidation claims that applications for summary judgment for damages to be determined at a further hearing are likely to be made where it is obvious that there exist at least some items of short essays for kids disrepair for which the defendant is liable. If so, the claimant will seek to argue that even if one breach can be shown to exist, he or she must be entitled to judgment in application letter to boss his favour. Two arguments exist against this. Firstly it may be argued that technically the mere proof of breaches is not enough so as to entitle the claimant to damages to be determined.

Arguably, the claimant will also have to prove that the existence of the proved breach or breaches has caused a diminution in the value of his reversion, as otherwise he or she will not be entitled to any damages, including nominal damages, by virtue of the essay etiquette, provisions of s.18(1) of the Landlord and Tenant Act 1927. Therefore it may be said that mere proof of breach does not entitle the claimant to anything, on the contrary, if it should turn out that the breaches did not cause a diminution in reversion, the Claimant's claim should be dismissed with costs. This argument may be successful in how to write to boss cases where only a small number of write your for each of 13 breaches can definitely be proved and it is less likely to prevail in cases where it is obvious that there are a large number of items for which the defendant is responsible. Loan Letter. Accordingly in that instance the court may conclude that it is sufficiently likely that some diminution has been caused for judgment for damages to be determined to be appropriate. Secondly, if the court orders damages to be determined at a later hearing, it will not normally make any specific findings as to what breaches exist.

Accordingly it follows that whoever subsequently determines the short essays, amount of damages will in how to loan effect be trying the question of breaches for a second time. Even if the court finds that a particular breach exists at the hearing of the application for summary judgment, the nature of that breach will have to be gone into thesis assisted again on the determination of damages, because it will be relevant at that stage to write loan letter to boss consider what is the appropriate remedial work. Short Essays For Kids. This is illustrated in instances where the court may find on the application for summary judgment that for example the roof covering is defective. That fact is sufficient to establish a breach, but so as to determine damages, it will be necessary to enquire whether the covenant requires the how to loan application, roof covering to english short essays for kids be replaced in its entirety, or whether localised patch repairs will do. It is how to write loan to boss, thought that for these two reasons, summary judgment will normally be an unnecessary extra step that does not really achieve anything in dilapidation cases, and will tend to delay the final judgment as well as increase costs. A further complication arises where the claimant's claim is not for damages at essay etiquette the expiry of the term but for forfeiture of the lease and damages. In such cases it is very likely that the tenant will consider counterclaiming for relief from forfeiture. Accordingly, provided that the application to boss, tenant's claim is bona fide and has at least some prospect of success, the essay etiquette, court cannot make an order for possession under Part 24 pending the trial of the counterclaim.

The court that hears the loan letter, application will have to decide what the short for kids, items of disrepair for which the write loan application letter to boss, defendant is liable actually are, how serious those breaches are, the essay etiquette, circumstances under which the breaches arose and whether the defendant ought to be granted relief upon terms that he carry out a specific schedule of works. This type of investigation is of essentially the same matters that would have to be investigated on the determination of damages. Accordingly it would be necessary to ensure that the application for write loan letter, relief and South American Map the determination were heard by to boss, the same court as part of the same hearing. It is accordingly thought that in many instances where the claimant seeks summary judgment for essay etiquette, damages to be determined, the court ought properly to conclude that there is another reason why the case or issue should be disposed of at a trial within the meaning of Part 24.2(b). In such cases it seems that the court should dismiss the loan application to boss, application as the court will no longer follow its former practice of giving leave to defend.

For the reasons discussed above, in most cases there will be little to be gained by an application for summary judgment for damages to be determined, save possibly a dent in the tenant's morale by having lost the first round. More importantly, judgment for damages to short essays for kids be determined carries with it the risk that further items of disrepair, for which the tenant it liable, may be discovered after judgment. How To Write Loan Application Letter To Boss. Once judgment has been given, it will not be able to amend existing proceedings so as to provide details of new breaches. At the worst case scenario, new proceedings may be struck out under CPR, r.3.4 as being an abuse of process, because the landlord should have included all the breaches in the previous proceedings. Notably a tenant against whom judgement for damages to be determined is given, should ensure that the order makes clear that he is, on the determination, entitled to dispute the individual items in the schedule. If he or she does not do this, it may be argued on the determination that the effect of the judgement was that the short, tenant cannot dispute anything in the schedule. Dilapidation claims will involve not only the usual pleadings normally encountered in civil litigation, but also a pleading known as a Scott Schedule. This particular schedule is named after George Alexander Scott, who was an Official Referee between 1920 and 1933. The nature of the disputes that were referred to the Official Referees (now the Technology and Construction Court) involved them in deciding numerous facts on an item by item basis, and this meant the traditional forms of pleadings were cumbersome in dealing with such disputes.

The Scott Schedule was a type of pleading that brought both parties ' cases in relation to each of the disputed items together in a tabular format and write loan application to boss more importantly, in a single document. This could be easily referred to by council, witnesses and the judge during the trial and facilitated the understanding of South Map evidence. It is now settled practice for the judge of the write application to boss, Technology and Construction Court, in succeeding the Official Referees, to order that a Scott Schedule be prepared. Notably, such a direction may also be made in appropriate cases, by tooling, any court. The initial burden of preparing the schedule lies with the claimant. The document must set out under appropriate headings the claimants case in relation to liability and quantum on an item by item basis. Write Loan Letter To Boss. If appropriate, this may be based on the schedule of dilapidations prepared by the surveyor. The purpose of the schedule is to enable both sides to short essays for kids know what the issues are and it is important that the how to write application letter, defendant pleads his case properly in the Scot Schedule. A bare denial of english essays liability for a particular item is not helpful in how to loan application letter advancing the case.

For example, where the claimant pleads in write of 13 column (x) that the roof covering is torn or holed over approximately 60 per cent of its total area, the defendant's case may the that the roof is letter to boss, not torn or holed at essay all as alleged or that the roof is torn or holed, but not to the extent as alleged by how to to boss, the claimant. Accordingly, it is important for the defendant to set out whichever of these is in fact his case. It should be stressed that the Scott Schedule is designed to encapsulate the parties' respective cases in relation to the detailed items of claim, and english essays for kids is taken to be without prejudice to any defence of a general nature that has been raised in relation to liability or quantum. In admitting that items of disrepair existed and that remedial works were necessary to make things right at a certain cost, the defendant is how to write loan application, not admitting that these repairs are in fact his liabilities under his covenants, or that the cost of remedying the defects is relevant to the quantification of the South American Map, claimant's loss if any. Letter. These general defences should be raised in the defence in die manufacturing the ordinary way and need to be repeated in the Scott Schedule.

This type of schedule not only works to save time during the write application, proceedings, but also helps to concentrate the minds of the for each of 13 article, parties at write a relatively early stage upon the exact nature of their detailed cases, and opinion of 13 article the nature and importance of the issues which divide them. Preparing the schedule at loan to boss an early stage will give both parties an opportunity to narrow the differences between them and may help them to write for each of 13 reach a realistic compromise. Disclosure enables one party to litigation to obtain the right to how to letter inspect and if desired to short for kids request copies of documents in the control of the how to write application, other party. In dilapidation cases disclosure is most significant in relation to essay etiquette issues arising under s.18 (1) of the application letter, Landlord and thesis suicide Tenant Act 1927, and in particular whether the landlord intended to redevelop the how to loan application, premises following the termination of the lease. Die Manufacturing Thesis. In such cases disclosure enables the tenant to see not only those documents that are available to the public at how to write loan application letter to boss the relevant time, including planning applications, but also internal memoranda and other documents evidencing the landlord's private thinking on the matter.

CPR Part 31 allows a party to make a reasonable search for english short essays for kids, documents that adversely affects their own case or adversely affects or supports another party's case and to make and serve on the other parties a list of those documents. The party must also include in the list any other documents on which he relies. The disclosing party is then under an obligation to disclose the documents to the other parties and allow them to inspect the documents in the list, except where there is a right to withhold inspection, or where it is considered that it would be disproportionate to the issues in the case to allow disclosure of those documents. The right to withhold a document arises where a successful claim for write loan application to boss, privilege can be made. Documents that contain advice from legal advisers on legal matters are absolutely privileged, but this does not apply to other advice from non-legal advisers. Accordingly, if a landlord were to take the advice of counsel some months before the expiry of the essay etiquette, lease as to his prospects of obtaining planning permission for a redevelopment, his instructions to his solicitor, the solicitor's instructions to counsel and counsel's opinion would all be privileged. However, other advice the how to, same landlord may have obtained in relation to the proposed development, for example from a valuation surveyor as to the viability of the scheme, would not be privileged.

Another head of privilege that may be of relevance in such instances is the head of privilege protecting from disclosure documents which came into existence with the predominant purpose of being used in the preparation of actual or contemplated litigation. The exact boundaries of tooling die manufacturing this privilege are however ill-defined. It is write loan letter, thought that it would not normally apply to notes by a building surveyor in the course of his initial inspection of premises with a view to compiling a schedule of dilapidations, but that it would cover his notes made on a subsequent visit for the purposes of essay etiquette pricing a Scott Schedule. It would not cover a valuation of the loan letter, demised premises carried out for the purposes of a general valuation of the landlord's portfolio, even if the valuer took into account the state of essay etiquette repair of the demised premises, but it would cover a report prepared by the same valuer for the purposes of countering the tenant's contention that there had been no diminution to the landlord's reversion. The CPR has not significantly altered the powers or practice of the courts as to the award of interest. The court has power to award simple interest at such rate as the court thinks fit or as may be prescribed on all or ay part of a debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and the date of payment or judgment, whichever is the write loan application to boss, earlier. On Doctor Assisted. Interests may be calculated at different rates in how to write application letter to boss relation to different periods. To award interest is not to punish the defendant but to compensate the Map, plaintiff for being kept out of his money. Accordingly, whilst the court maintains an overriding discretion not to award interest, in practice interest is readily awarded, particularly when dealing in commercial matters. In disrepair cases where damages are awarded, interest will normally be awarded from the how to write loan, date on which the cause of action arose until the date of judgment. Essay Etiquette. This means that interest on write loan letter, damages for failure to yield up in repair will run from the term date of the lease until the date of judgment.

Notably this fact must be taken into consideration by tenants who are considering making a Part 36 payment. Thesis. The rate of interest will be within the court's discretion, but will normally be the how to write letter, rate payable under the Judgment Act on judgment debts, that is prescribed from time to time. It is also important to note that the tooling die manufacturing thesis, court cannot award interest on arrears of contractual interest. In the case of Johnsey Estates (1990) Limited v Secretary of State for the Environment, Transport and how to write loan letter to boss the Regions the diminution in the value of the reversion was held to be £200,000. Interest was awarded on die manufacturing, that sum from the term date of the lease. In Craven (Builders) Limited v Secretary of State for how to write, Health the diminution in the value of the reversion was assessed at £40,000. The tenant accepted that prima facie interest should be payable from the term date but argued that the landlord should be deprived of two and a half year' interest because it had delayed, and was in South breach of a court order to set down, in how to bringing the action on for trial. In this instance, Neuberger J. rejected that contention on the principal ground that he was not satisfied that the landlord was substantially to blame or that there had been any unreasonable delay.

He further referred to the fact that if the delay had been after the Civil Procedure Rules had come into force and if he had been satisfied that the delay was not merely failure to simple short essay obey court orders but was due to the landlord delaying in some way of another, then he would have deprived the how to, landlord of some interest, and english essays for kids he might even have done so even if it had not been established that it was the landlord's fault. Interest can only how to loan be awarded on money being claimed in proceedings. Short Essays. The court does not have any power to award interest in cases where the defendant discharges his liability for debt or damages before the claimant commences proceedings. Write Letter To Boss. This is an important fact to bear in mind by english short, tenants who are liable to pay the cost of work carried out by how to application, the landlord under a covenant allowing him to short for kids enter and carry out how to application to boss, remedial work at the tenant's expense. If the debt is paid prior to the landlord commencing proceedings, then there will be no liability or interest. If on the other hand, the essays, debt is write letter, paid shortly after proceedings have been issued, then the landlord will be entitled to ask for interest to be awarded in relation to the period beginning on english short, the date when the liability to pay arose. Where the defendant is an original tenant, the interest may be awarded from the date of the assignee's default, even though the original tenant was not aware of the default at how to loan application to boss the time.

However, the court may be persuaded to adopt a more realistic approach and award interest only form the date on which the defendant first became aware of the assignee's default. Chapter 3 - The role of the Expert Witness. The subject of expert witnesses has figured prominently throughout the consultative process. Apart from discovery it was the subject which caused most concern. The need to engage experts was a source of excessive expense, delay and, in some cases, increased complexity through excessive or inappropriate use of experts. Expert evidence was one of the most challenging areas considered during the reassessment of civil procedure which led to wide ranging reforms being introduced in this area. The key, as will be discussed in more detail below, was a re-emphasis on the true duty of the expert to inform the court rather than to justify the position of the party paying his fees. Furthermore, when the write opinion article, new CPR came into force, there was concern at write loan application to boss the concept of the single joint expert, the strong desire to keep expert evidence to a minimum and the requirement to inform the court of expert availability on allocation of the case. The CPR have now been operating for a few years, and unsurprisingly expert evidence in general has generated a high level of case law at appellate level. Case law tends to tooling thesis show that the role and how to application letter to boss duties of experts is evolving, mainly as a result of the court's emphasis on proportionality.

The courts are now taking a firmer hand regarding all aspects of expert evidence, including in dilapidation cases, whether it should be allowed at all, its usefulness, its timing and of course its cost. Expert evidence will only thesis on doctor be allowed if it is really necessary and how to letter to boss if it is, it should not be used more than is thesis suicide, necessary. The reduced use of expert evidence is, however, not to be perceived as diminishing the how to write letter to boss, value of expert evidence. It is recognised that there are cases where expert evidence will still clearly be necessary. Judges cannot be experts in everything. In those cases, the courts have been careful to warn judges to pay sufficient attention to the expert evidence before them and to give reasons for preferring one expert's evidence to another's.

The impact of the CPR on expert evidence can be assessed by reviewing the South American Map, extent to which some individual rules have been effectively applied since the introduction of the CPR. These will be discussed in more detail later in write application to boss this chapter, although a summary of the main points include: The expert's duty to the Court and not it's fee paying client. The Access to Justice Final Report recommended a new approach which emphasised the expert's impartiality which was embodied in CPR r.35.3. As May L.J highlighted in his keynote address to the EWI annual conference in October 2001, you [experts] have an overriding duty to the court. a duty which overrides any obligation to the person from whom you have received instructions or by whom you are paid. You are not there to engage in a sparring match with your opposite english short for kids number. The courts have actively upheld this duty by criticising expert witnesses where they have shown signs of partiality. Initially, there were concerns that this duty would entail the appointment of shadow experts with whom a party could discuss the full merits of his case without concern that those discussions could be stripped of privilege. This does not seem to loan application have materialised before the courts although anecdotal evidence suggests it is happening to a certain extent behind the scenes. CPR r.35.7 introduced the essay etiquette, concept of the single joint expert.

The idea being that parties are strongly encouraged to try to agree on an expert to instruct. Where this is not possible, the court could select a single joint expert to how to loan application act in the case. This was not however, initially welcomed. One of the strong concerns in this area was that costs would spiral as a result of the need in complex cases to appoint experts for each party as well as the single joint experts, the costs of which would be irrecoverable. In fact, the thesis, concept of the single joint expert has been creatively adapted to suit different matters and write to boss courts. The courts have in short this context recognised that, whilst taking into account the possibility of appointing a single joint expert, there are many multi-track cases which, by virtue of their complexity and the sums at write application letter state, will still warrant each party having its own experts.

The courts have furthermore enthusiastically taken up the spirit of written questions to experts provided for by CPR r.35.6, whereby a party may put to the other side's expert or a single joint expert, written questions about his report. The advantage of this procedure is that it reduces the need for cross-examination at trial and can be done without the court's involvement prior to trial. Notably this is an area of the new procedure which is as yet still underused. The expert witness in dilapidation cases. The opinion of a properly qualified expert on an issue within his or her field of english short expertise can often give a judge invaluable help in how to to boss finding a sound answer to problems arising in the course of litigation. But like all procedural tools expert opinion evidence, invaluable if properly used can be improperly used and then it can disfigure the litigious process by causing delay, unnecessary expense and contamination of what should be independent and objective expert opinion by considerations of partisan advantage. An important aim of the CPR is to english curb the abuses to which misuse of expert evidence has given rise in the past while ensuring that the courts continue to how to application letter to boss enjoy the help which such evidence alone can give.

There has been an extra ordinary number of decisions, clearly highlighting the importance which litigating parties attach to tooling die manufacturing thesis issues concerning expert evidence. Firstly, money would not be spent disputing these issues if parties did not think they really mattered. But secondly, the decisions of the courts show that the new rules are making a demonstrable impact on practices and habits of how to application thought which were once tolerated but no longer are. New and much more rigorous demands are made of litigating parties and judges too. Expert Witness are the only type of witnesses who are allowed to give opinion evidence when it comes to matters for a court to decide (all other witnesses are only entitled to give evidence of fact). Permission from the english short, court would be required prior to the calling of or submission of any expert evidence and any application for permission must identify the field of the expertise of the expert to be relied upon and (if practicable) identify the how to write, expert. Notably, if permission is granted, it will relate only to the identified field and/or expert. It is tooling thesis, normal procedure for the expert to loan application letter to boss provide his or her evidence by essay etiquette, way of written report and except in a fast-track case, the expert will under normal circumstances be directed to attend the hearing.

The court will use its case management powers to provide the appropriate directions under the CPR in relation to expert witness, but may also give directions in response to an application made by either party to the proceedings. Part 35 of the CPR provides detailed provisions in how to write loan letter to boss relation to experts and assessors that are expanded upon in for kids the Practice Direction supplementing Part 35. The purpose of Part 35 is letter, made clear by simple short, the following note which appears at the start of the Practice Direction, Part 35 is intended to write to boss limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by a single expert. Permission of the court is always required either to call an write opinion of 13, expert or to put an expert's report in evidence. The case of Field v Leeds City Council provides an interesting insight to the requirements the loan to boss, courts generally make prior to simple the appointment of an expert witness. In this case the county court judge refused permission to the defendant council who wished to call, as an expert witness one of its employees, who had, as a member for ten years of the claims investigation section, been involved in looking into disrepair matters for the council. The Court of Appeal held that in principle, there was no objection to a person who is employed by one of the parties being called as an expert witness by that party, so long as he was properly qualified.

The court noted however, that it was important that such a person should have full knowledge of the requirements for an expert to give evidence in court and that he should be fully familiar with the need for objectivity. The primary function and duty of an how to application to boss, expert witness is to assist the court on Map, matters within his expertise. In the case of National Justice Compania Naviera SA v Prudential Assurance Co. Limited Cresswell J set out loan application to boss, seven propositions that are relevant to the performance by expert witnesses of this duty. These have been quoted in essay textbooks and reported judgements over the years and have now largely been subsumed in the relevant provisions of the CPR. The Royal Institution of how to write to boss Chartered Surveyors further published a Practice Statement and Guidance Notes for Surveyors Acting as Expert Witnesses . This statement had three particularly prominent features. Firstly members of RICS who accepted an appointment to act as expert witness were required to draw to the attention of their lay clients, at essay etiquette the time the instructions were accepted, that the Practice Statement applied. Secondly, compliance with the Practice Statement was made a requirement of write loan letter to boss professional conduct for members of the RICS in performing the function of an expert witness, so that a failure to comply would amount to a disciplinary offence.

Thirdly, it required a member, in the body of any expert report which he compiled in english short the capacity of a witness, to how to write loan letter to boss set out his duties under the Practice Statement and to confirm that he had complied with them. This worked to bring the Practice Statement to the attention of the courts and other tribunals in which such evidence was given, as well as reminding the witness, every time he prepared such a report, of his duties. Similarly, the provisions incorporated in write opinion article CPR r.35.10(1) now emphasise that the primary duty of the expert witness is to the court an not to write loan application letter his or her client, and require an expert's report to comply with the requirements set out in any relevant Practice Direction. The Practice Direction Experts and Assessors sets out detailed provisions to regulate the form and content of expert's reports. In particular, it requires any such report to be verified by tooling, a statement of truth confirming the expert believes the facts stated in his report to be true and that his or her opinions are correct. Furthermore, CPR r.35.10(2) also requires the expert to state at the end of his report that he understands his duty to the court and has complied with that said duty, echoing the similar declaration required by the RICS Practice Statement. All reports are to how to write loan application state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

Furthermore, the instructions provided are not to be privileged against disclosure. Notably it is also provided that the court will not order disclosure of any specific document or allow any questioning in court by the other party in relation to thesis on doctor suicide those instructions, unless the court has reasonable grounds to consider that the statement of the loan application letter, substance of the instructions is your for each of 13 article, inaccurate or incomplete. It was originally intended that a Code of loan application letter Guidance for Expert Witnesses would be prepared and annexed to the Practice Direction. However, aster a long delay at the time when the your, CPR were being prepared, the how to loan application, Master of the Rolls authorised in 2001, the publication of the Code of Guidance on Expert Evidence: A Guide for experts and those instructing them for the purpose of court proceedings. This guide has not been annexed as part of the CPR as it was originally thought, but may be found re-printed in the White Book at the end of Part 35. An important innovation found within the CPR is the court's power under r.35.7 to your for each of 13 direct, in cases where two or more parties wish to submit expert evidence on a particular matter that the evidence is to be provided by only one expert. How To Write Loan Application Letter To Boss. Parties who wish to submit expert evidence are referred to as the your opinion for each, instructing parties. The significance of the reference to the instructing parties is write application to boss, that, in short essay a case where there are more than two parties, not all parties may wish to rely upon expert evidence. Those parties which do not wish to do so, are not required to instruct the joint expert and may challenge his evidence in the same way as they could challenge any other expert evidence put before the court, but they will not, of course, have any expert evidence f their own upon which they can rely. Write Loan Letter. The instructing parties may agree the identity of the single joint expert although in instances where they cannot agree, the court may select an expert from a pre-prepared list prepared by the instructing parties or direct that the expert be selected in some other manner.

This is illustrated in the case of Peet v Mid Kent Area HHS Trust where Lord Woolf C.J stated, as we will see when we come to the framework which is provided by the Civil Procedure Rules, the write opinion for each article, Rules permit the Court to require the write loan application to boss, parties to use a single expert. This is not a matter of essay etiquette choice for the parties. In the absence of special circumstances I consider that the how to write application letter, appropriate way that the power should be exercised is to require a single expert rather than an expert for each party. English Short For Kids. It is only by so doing that control can be exercised over the costs involved. In relation to Part 35.7 I would emphasise that the power of the court to direct that the evidence be given by a single joint expert is unrestricted. The court has a wide discretion and that discretion has to loan application to boss be used in order to further the overriding principles set out in Part 1 of CPR. Making reference to thesis on doctor suicide the framework as provided by the Rules, Lord Woolf stressed that the said rules were designed to provide a flexible framework, and that there would always be cases wherein special treatment is required due to the particular issues that arise thereunder. Nonetheless, he argued that in general, the Rules should cater satisfactorily for the great majority of situations where expert evidence is required.

Where a direction for a single joint expert has been made, r.35.8 allows each instructing party to give instructions to the expert, a copy of how to write loan application letter to boss which must be sent to the other instructing parties. The court may give directions in relation to the payment of the expert's fees and expenses and any inspection, examination or experiments the expert may wish to carry out. Furthermore, the on doctor assisted suicide, court may also limit the amount that can be paid by way of fees and expenses to how to loan the expert, prior to the instruction of the latter, and order the instructing parties to pay that amount into short court. Importantly, unless the court directs otherwise, the instructing parties will be jointly and application letter severally liable for the payment of the thesis, expert's fees and expenses. Paragraph 5 of Practice Statement Experts and Assessors, provides that in instances where the court has made a direction for a single joint expert but there are a number of disciplines relevant to the particular issue, a leading expert in the dominant discipline should be identified as the single expert and how to loan to boss should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines. In a dilapidations case, for example, the South Map, court may order that the issue of whether or not there has been damage to the landlord's reversion within the meaning of s.18 of the Landlord and Tenant Act 1927 and of the amount of any such diminution should be the subject of a report by loan to boss, a single expert and a valuation surveyor might be designated as the leading expert, who would then in turn rely upon the opinion of, for example, an expert as to market conditions prevailing at the relevant time. Similarly, if the court had directed that a single building surveyor should present evidence as to what remedial works were required so as to comply with the repairing obligations of the lease, he might be designated as the leading expert who would incorporate in his report the findings of various specialists dealing with mechanical and for kids electrical services, lifts and the electrical installations in the building. The CPR and how to write loan application Practice Directions do not provide explicit guidance as to South American Map what is to how to write loan letter happen one the single joint expert has reported. It has been left to a number of decided cases to clarify the procedures. In Peet v Mid Kent Area Healthcare NHS Trust Lord Woolf quoted a passage from the White Book which stated, If a single joint expert is called to give oral evidence at trial it is South Map, submitted, although the rule and the Practice Direction do not make this clear, that both parties will have the opportunity to cross-examine him or her, but with a degree of restraint given that the expert has been instructed by the parties.

He later observed, That paragraph may be applicable in some cases, but it certainly should not be regarded as being of general application. I summarise my reasons for so saying. The starting point is: unless there is how to loan to boss, reason for not having a single expert, there should only be a single expert. If there is no reason which justifies more evidence that that from a single expert on any particular topic, then again in tooling die manufacturing thesis the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by the expert's report. In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination. Write Loan Application Letter. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the essay, single joint expert's report is the evidence. Any amplification or cross-examination should be restricted as far as possible. Equally, where the parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court to permit a party to instruct his or her own expert and for the expert to be called at the hearing.

However, there must be good reason for that course to be adopted. if there is an issue which requires cross-examination, or requires additional evidence, that is one thing. But the court should seek to avoid that situation arising, otherwise the objectives of having a single expert will in many situations be defeated. The Court of Appeal in the case of Popek v National Westminster Bank Plc applied the above decision, where the how to loan letter, court upheld a decision by the judge to strike out a claim, where the simple, single joint expert's report showed that there had been no breach of duty on the part of the defendant. It was held that the judge had not been in error in depriving the claimant of the opportunity of putting his version of facts to the expert by way of how to write loan letter cross examination. In that case however, it is to be noted that the claimant had not taken the opportunity at an earlier stage to put his disputed version in questions to the single joint expert. This approach contrasts with that held in the case of Layland v Fairview New Homes Plc. In this case, a valuer had been appointed as a single joint expert, so as to assess the amount of diminution in the value of your opinion for each of 13 a flat the claimants claimed had suffered as a result of the grant of planning permission to write application build an essays, incinerator and power plant close by. The expert concluded that there was no diminution in value and the defendants thereby applied for summary judgment. Neuberger J held that in order to resist summary judgment dismissing the write loan application letter to boss, claim under Part 24, the claimants had to establish that they had a real prospect of successfully challenging the single joint expert's conclusion. Provided there was a prospect of the expert through cross-examination, or the court, through submissions, being persuaded to a different conclusion than that supported by the single joint expert's report, the claim could not be dismissed on the basis of the expert's view. In light of the fact there were some points which could be put to the expert and die manufacturing thesis accepted by him or by the court and since the court could not properly reject those points without hearing how the single joint expert dealt with them, it would not be right to grant summary judgment dismissing the claim.

Despite the fact the claimants' case on diminution seemed weak and speculative and even if successful was not likely to result in a large award, it could not fairly be said to stand no realistic chance of success. In the case of Pattison v Cosgrove a single joint expert was appointed in write application to boss a boundary dispute to report on various issues including the position of the boundary and whether some excavation works had undermined certain structures. Once the single joint expert's report had been received, both parties provided further questions to english essays for kids the single joint expert. Subsequently one of the parties applied to the court for permission to call another expert and application letter to boss this was refused. The application was however, allowed on appeal where Neuberger J stated, although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly the reason the new expert is wanted; fourthly, the amount at South American stake and, if it is not purely money, the nature of the issues at loan to boss stake and thesis their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and, finally and in a sense all embracing, the overall justice to the parties in the context of the litigation. Single joint experts are not appointed by the court so as to advise it or to present evidence to it. Accordingly, the report produced by the expert witness is evidence available to write letter to boss each of the instructing parties, which that party may or may not decide to put in essay etiquette as evidence. How To Loan Application. The party who puts in the evidence would then be bound by it and could not dispute it by, for example, cross-examining the single joint expert. In instances where questions have been put to the single joint expert by a party under r.35.6, the expert's answers will be treated as part of his report by virtue of write opinion for each of 13 article r.35.6(3).

It is therefore likely that, in a typical case, where there has been a direction for a single joint expert, the report will consist of the expert's original report together with answers to such questions as the parties have chosen to put to him. If one of the instructing parties is write loan application letter, entirely content with the result of this process, he will put the essays for kids, report in evidence and make it part of his case. Loan Application To Boss. If all parties take this course the expert's report will become agreed evidence. However, if one of the simple essay, instructing parties in not happy with the how to write loan application letter to boss, report of the single joint expert (including relies to any questions which that party has submitted) that party may decide not to put the report in evidence. In this case however, the instructing party may be faced with a problem in that he has no evidence of his own on this particular issue, unless he is able to persuade the court that, notwithstanding the fact that a direction for a single joint expert has been made, it would be appropriate for him to have permission to instruct his own expert dealing with that particular issue. A party that has not put the on doctor, report of the single joint expert in evidence as part of his case (irrelevant of whether it is one of the instructing parties) appears to be entitled to require the how to application to boss, single joint expert to give evidence, and to cross-examine him.

Despite the fact that party may have the benefit of advice from his own expert in the relevant discipline on that particular issue, which could form the basis for cross-examination, that expert could not be called (unless the court has given permission). It remains unclear how often the court will make a direction for a single joint expert in dilapidations cases, whether such experts will be directed on issues of what breaches exist, what remedial work is required, what the proper pricing of the work is, what damage (if any) has been caused by the landlord's reversion, or in South American relation to all those issues. It seems unlikely that joint experts will be frequently appointed in loan to boss dilapidations claims, at least in major claims in the Technology and Construction Court. The CPR and Practice Direction do not require the court to give any special status to the evidence of a single joint expert. Essay Etiquette. In practice, the opinion of a single joint expert, who has been chosen by more than one party (or by application, some process directed by the court), instructed by simple, those parties and having been subjected to write letter questioning by South Map, those parties, is likely to be considered by the court as being especially authoritative, quite apart from the fact, in most cases where a joint expert has been appointed, there will be no other expert evidence on that particular issue. Posing written questions to experts is regulated by CPR, r.35.6, which allows for each party to how to write application letter to boss put to an expert instructed by another party or to a single joint expert written questions in relation to tooling thesis his report.

These questions must be made only once. They must be made within 28 days of service of the expert's report and must only be for the purpose of how to letter clarifying the report (unless the your opinion for each article, court grants permission or the other party agrees). Importantly, the answers to any of the questions posed, become part of the evidence of the expert who has provided the answers, meaning they become part of the evidence that is being relied upon by the party who has instructed the expert. Significantly, the write loan letter, party who has asked the question can (if the answer provided by the expert supports their case) accept that part of the evidence, but also retains the right (in instances where the answers do not support their case) to tooling die manufacturing cross-examine the expert upon it and to call evidence to contradict or undermine the answer given (notably this may only be done to write application letter to boss the extent that the directions given allow). It therefore seems as though the right to ask questions can usefully be used both (a) to obtain the expert's confirmation that he accepts certain points upon your of 13 article, which the write loan application letter to boss, questioning party wishes to rely but also (b) to english essays expose for cross-examination a view of the expert which is thought to be vulnerable to attack. The power to put such questions may also draw out useful background material, including whether there are any particular matters upon which the expert has relied in how to write loan letter to boss order to support particular conclusions already stated in essay etiquette his report. It is important to loan letter note, that for tactical reasons, the Map, party who puts the questions to the expert, will have to consider to how to write loan application letter what extent the points which might be raised can be more effectively dealt with in cross-examination and to what extent they wish the Map, other party's expert to how to loan letter set out in advance of cross-examination his answer to their question. In situations where an expert does not answer the questions put by a party, the court is entitled under CPR, r.35.6(4) to order that the party who instructed the expert may not rely upon his evidence and/or that the party may not recover the tooling thesis, fees and expenses of that expert from any other party. By virtue of CPR, r.35.12, the court may at any stage of the proceedings, direct the experts to enter into a discussion for the purpose of requiring them to firstly identify the issues and secondly, where possible, to reach an how to application, agreement on an issue. This is a similar power to that previously conferred on the court by RSC O.38, r.38 and accords with the short for kids, practice that has evolved in the Official Referees' courts.

The Court may specify the issues the experts must discuss and may direct that, following a discussion, the experts prepare a statement for the court to show those issues on which they agree and those issues on which they disagree, together with a summary of their reasons for disagreeing. Despite the how to write letter to boss, fact the previous RSC O.38 similarly provided that an agreed statement might come out of he experts' discussion, the American Map, procedure under CPR r.35 is more prescriptive, and conforms to the principle that the experts' overriding duty is to how to write application to boss the court. The case of simple short essay Robin Ellis Limited v Malwright Limited decided under the former Rules of the write loan application letter to boss, Supreme Court illustrates this point. In this instance, the Official Referee, Judge Bowser Q.C highlighted the fact that it was not for simple, the parties to tell the experts what opinions they were allowed to hold, and that the duty owed to the court by the experts was to express in their agreement the views which they themselves honestly held. Previously, the procedures allowing experts to meet have shown themselves to write loan application letter to boss be useful and the new rule should continue to do so. Experts will sometimes be in a position where they are able to reach an agreement to english essays for kids such an extent that their attendance at trial can be dispensed with. This is illustrated in instances where the respective building surveyors may be able to agree on what work should have been done and what it would have cost, leaving the question of damage to the reversion as the only live issue at trial. Even in cases where complete agreement on write application to boss, a substantive issue is not possible, the experts will often be in a position to reach agreement in relation to matters which would otherwise take up time at essay etiquette trial. Write Loan. For example, valuers should in most cases be able to agree on matters such as floor areas and the details of their respective comparables, and building surveyors who differ on what work is required should nonetheless be able to agree on the cost of the work for which each contends.

Furthermore, in echoing the previous provision to the effect that the meeting between experts should be on a without prejudice basis, CPR, r.35.12(4) provides that the content of the essays for kids, discussions between experts shall not be referred to at the trial unless the parties agree to this. Whist discussing, experts are to make a proper attempt to identify and narrow the issues on which they differ. Importantly, if an expert is persuaded by his opposite loan application letter number that his view on a particular issue is wrong, he will not be able to write a report expressing his original view and ought to instead agree that matter in the statement for the court. Where experts agree on an issue during their discussions, pursuant to CPR, r.35.12(5), the your opinion of 13, agreement shall not be binding on the parties unless the parties expressly agree to be bound by the agreement. This does not however, release the expert from his duty to the court as to the truthfulness of his evidence which means that in practice, where an expert has reached agreement with his opposite letter number the on doctor, party instructing him will normally have no option but to agree its inclusion in the statement. The rule clearly envisages an attempt in good faith by both experts to discuss the issues, to narrow the differences between them, and to record what common ground exists. For example, an how to to boss, expert would not be complying with the rule if he or she attended discussions and informed the opposite number that he or she has no instructions to discuss anything but is prepared to listen to what is said.

In the same manner, a discussion meeting should not be utilised to discuss settlement of the action since there will then be a danger that the expert will confuse his duty to the court with his duty to his client to obtain the best possible settlement. The court has the power to direct discussions at any stage of the proceedings, although the most advantageous time for such discussions will normally be before reports are exchanged so as to allow for the reports to be written on the basis of the areas of write your for each article agreement and disagreement identified at the meeting. Sometimes, a further meeting after exchange of reports may be useful if the result of exchange is write application, further to clarify the nature of the english essays, matters in write application to boss difference. Content of experts' reports. The Practice Direction to your for each rule 35 requires that the report should be addressed to the court and how to write application to boss not to the party from essays, whom the expert has received his instructions. Furthermore, the report should give details of the expert's qualifications, as well as details of loan application letter any literature or other material the simple short, expert has relied on in making the report. In accordance with CPR, r.35.12 and as referred to previously in write application to boss this essay, there should also be the inclusion of an appropriate statement of truth in the body of the expert's report. Paragraph 1.2(5) provides that, where there is a range of opinion on the matters dealt with in the report, the report should summarise the range of opinion, and give reason for the expert's own opinion. This appears to be addressed to issues of practice or principle on which there is a known and acknowledged range of opinion between experts in the field. It does not mean that on tooling thesis, every occasion on which an expert things that another expert might disagree with him on a particular point, he is letter to boss, required to say so and go on to say what view that other expert might hold.

Subject to these particular provisions, the contents of an your for each of 13, expert's report varies from case to case. There are however, some general points that apply in all instances and that merit a brief mention herein. Firstly the how to write loan application to boss, report should be prepared by a named individual rather than from a firm or company. This is because expert evidence is personal, in that the opinions expressed in the report must be the personal opinion of an individual. After all it may be that that particular individual is later called upon to give oral evidence and be cross-examined on his evidence.

Accordingly, it follows that the report should for the most part be written in the first person singular rather than the first person plural. Secondly, the report must demonstrate the witnesses' credentials to tooling die manufacturing be considered an expert and, in order to explain the nature of his particular field of expertise, the report should contain a statement not merely of his formal qualifications but also something about his career and the nature of how to letter his practical experience. Thirdly, in dilapidations cases, the write your opinion of 13 article, expert's evidence will almost always be based on what he has observed on inspecting the premises, as well as other matters. Accordingly, the expert should give the dates of those inspections and, where appropriate, also explain the how to application to boss, reason for his visit. Fourthly, in some instances, the expert may wish to make particular points about the physical nature of the subject-mater of his inspection.

He will have to decide whether the best means of conveying this to South American Map the court is by a verbal description or by reference to location plans, or photographs or a combination of write loan letter to boss some or all of these. Fifthly, it is likely that the expert's opinion will be based on detailed data that has been assembled from a variety of sources. So that the essay etiquette, court may understand this, the rule upon the admissibility of some parts of the evidence if necessary, it should be made clear in the body of the report what is the source and nature of the information that is being relied upon. Sometimes the expert will simply be setting out or referring to something of which he has first-had knowledge, such as a schedule of dilapidations referred to by the loan letter, building surveyor who drew it up. Sometimes the expert will be referring to information of a factual nature supplied by third parties. An example of this is the fact the expert valuer may refer to details of opinion comparable transactions supplied to him by other agents. Sometimes the how to loan letter to boss, data will e of a more generalised nature, such as statistical surveys, analyses of market trends or indices of building costs. Finally, after having demonstrated the material, factual and otherwise, upon which his evidence is based, the expert should clearly set out the conclusions that have been reached. Thesis On Doctor. The expert must set out in as much detail as he considers appropriate the write application letter, method and line of reasoning which has led him to his conclusions. Whilst writing his report, the expert must bear in mind that he is required to be objective and he must express his honest opinion.

Arguments he does not believe in must not be put forward and opinions which he does not in fact hold, should not be expressed. In instances where there is a point that can fairly be made against him, he should acknowledge it and explain why it does not cause him to change his views. In all, he should aim for a balanced and fair assessment of the essay etiquette, subject matter in his report. Human Rights and the Expert Witness. The Human Rights Act 1998 also has a potentially significant impact on the rules governing expert evidence. Firstly, under CPR r.35.4, the court has total control over the use of expert evidence and how to write letter should limit such evidence to that which is necessary to resolve the proceedings justly. This power lends itself to allegations that Article 6 of the European Convention on Human Rights has been breached, in that evidential restrictions have denied a party a fair trial. Secondly, it may be argued that the appointment of a single joint expert is an infringement of parties' rights to thesis assisted suicide a fair trial, although this has yet to be tested. Thirdly, there has been discussion about whether without prejudice expert meetings under CPR r.35.12 could also be challenged under Article 6, although this again has yet to be tested.

It is perhaps surprising that more challenges have not been made to Part 35 on the basis of Article 6. This is perhaps due to the one attempt to do so that was firmly rejected by Lord Woof in Daniels v Walker. In this case, the issue before the Court of Appeal was of some significance as to the approach which judges should adopt when a single joint expert has been instructed and where one side is unhappy with that report. The facts arose from an accident in which the write, claimant was involved as a child. Thesis. The single issue before the Court of Appeal was the nature of the care which the claimant would require in the future. On receipt of the how to write loan application, report from the joint expert, the defendant was concerned at the extent of the care regime recommended by the expert and sought to obtain a further care report from another expert. The appellants advanced two separate arguments before the Court of Appeal, firstly they raised an write your article, argument based on the CPR and secondly they raised an argument based on the Human Rights Act 1998 and application letter to boss the European Convention on Human Rights (albeit that the 1998 Act was not in force at the relevant time).

As to the CPR argument, the court referred to the overriding objective of the CPR r.35.1 (which places a duty on the court to restrict expert evidence) and CPR r.35.6 (dealing with the ability of the parties to put questions to the experts). The court also referred to CPR r.35.7 which gives the court power to direct that evidence is to be given by a single joint expert. Having considered the relevant rules, the english essays, Court of Appeal said that the fact that a party has agreed to instruct a joint expert does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert. Letter. The Court of Appeal added that in substantial cases, such as this, the correct approach is to tooling regard the instruction of an expert jointly by the parties as the first step in how to write application to boss obtaining expert evidence on a particular issue. The court added that it is to be hoped that in the majority of cases it will not only be the first step but the on doctor assisted suicide, last step.

However, if having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or possibly the whole) of the expert's report which he or she should, subject to the discretion of the write loan application letter to boss, court, be permitted to obtain that evidence. The appeal was allowed in this case and a further care report from another expert was admitted. However, the Court of Appeal noted that this would not be the case where it is suggested that the claimant would be unduly distressed, or anything of of 13 article that nature, by the additional examination. As to the Human Rights arguments, the loan application letter, defendant argued that having regard to the provisions of Article 6 of the European Convention on Human Rights, a refusal of the Map, defendant's wish to instruct a second expert would conflict with Article 6 because it amounted either to baring the how to write loan, whole claim of the defendant or barring an simple, essential part of that claim. The Court of Appeal held that Article 6 had no possible relevance to the appeal. The court said that, even if the Act had been in force, it would be highly undesirable if the consideration of case management issues was made more complex by the injection into them of Article 6 style arguments. The Court of how to letter Appeal said that it hoped that judges would be robust in resisting any attempt to introduce such arguments. It seems that the biggest impact the 1998 Act has had on expert witnesses is in relation to your opinion for each of 13 the bias issues. These occur where there is reason to believe that an expert may be biased towards one party and the result of successful allegations could be that evidence is excluded, or given less weight. This may in some instances apply to dilapidation matters generally, and how to write loan application to boss is likely to damage a party's case.

Accordingly, steps should be taken in all cases to thesis suicide avoid any hint of bias. Chapter 4 - Alternative Dispute Resolution and Dilapidation claims. The introduction of the CPR has meant that it is more likely that dilapidation claims will end up being resolved by agreement rather than by litigation. How To Loan Application. It is therefore important at this stage, to opinion article consider the options available to those who wish to resolve dilapidation disputes without entering into litigation. The first alternative to be considered is that of arbitration. Loan Letter. Arbitration is based on the agreement of the parties and unlike litigation, has limited intervention by the state. This means that in one sense, unlike the public process that is litigation, arbitration can be considered as a private process.

Any resort to arbitration to resolve disputes will start with an arbitration agreement. In dilapidation cases, such an agreement may be found in essays for kids a clause in the lease that gives either party the right to refer to arbitration if any disputes arise under the lease. How To Loan Application Letter To Boss. However, such clauses are, in practice rarely to be found in leases in South a form wide enough to embrace the typical dilapidations dispute (as opposed to how to a more limited arbitration clause aimed at a particular subject-matter such as service charges, where arbitration clauses are somewhat more common, or rent review, where provision for arbitration by a surveyor is widespread). Accordingly, in the absence of such a clause, arbitration will only be possible if the parties agree that for the purposes of their immediate dispute, it is to be referred to arbitration. If the agreement is in writing, as required by s.5 of the 1996 Act, it will be enforceable by either party, and if the other party seeks to resort to litigation instead, a stay can be obtained from the court under s.9 of the for each, 1996 Act. The person chosen as the arbitrator should be qualified to understand the issues that arise in the particular disputed referred to him. It is not normal procedure for an arbitration clause in a lease to provide for a named individual arbitrator. How To Write Application To Boss. Instead, it will normally lay down a procedure by english short for kids, which such a person may be appointed (in default of the how to write application letter to boss, parties' agreement upon his identity).

In a clause in essay etiquette a lease that is specifically aimed at dilapidations disputes, the President of the Royal Institution of Chartered Surveyors or of the Law Society is likely to be named as the person to make appointments. Write Loan Application To Boss. If however, there are no appointment procedures outlined within the lease, or of for some reason those that are set out thesis suicide, fail to operate, the 1996 Act provides a fall back appointment procedure. If the parties enter into a specific arbitration agreement for the purposes of an existing dilapidations dispute they will be able to specify a named individual in their agreement. How To Write Loan To Boss. Alternatively, they may invoke the appointment procedures of the RICS or the Law Society or some other appointing institution or rely upon appointment by essay etiquette, the court. It is how to write, always preferable to obtain an appointment by specific agreement, as this would give the parties the maximum control over the identity of the person who is to South Map decide their dispute. Once an arbitrator has been appointed, he or she will give directions for a speedy and cost effective resolution of the dispute under s.34 of the write to boss, 1996 Act. It is important to note, that unlike litigation, there is considerable flexibility in the range of procedures that may be adopted. For example the arbitration may be conducted wholly in writing or there may be an oral hearing.

Furthermore, the arbitrator may be given power to take the initiative in ascertaining the facts and the law. The strict rules of evidence may or may not apply and under s.37, the arbitrator may appoint a legal or other assessor to assist him. Procedural matters may be agreed between the parties. If they are unable to do so, these may be determined by the arbitrator in Map accordance with hi general duty under s.33 to letter to boss act fairly and impartially between the parties, allowing each party a reasonable opportunity to put forward his case and dealing with that of his opponent, and tooling die manufacturing adopting procedures suitable t the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide a fair means for the resolution of the matter falling to be determined. This may resemble a superficial resemblance to litigation procedures under the CPR, but the important difference is that the parties control most aspects of arbitration proceedings (except where there is disagreement, in which case the letter to boss, arbitrator decides) while under the suicide, CPR the court's case management powers override the wishes of the how to write loan letter to boss, parties as to thesis on doctor assisted suicide how the proceedings should progress. An arbitrator's award will deal with all the matters with which a court's judgment could deal, including interest and costs. It is enforceable in loan application letter the same way as a court judgment and unless the parties agree otherwise, will contain reasons for the decision. In the context of a typical dilapidation dispute, the advantages of tooling die manufacturing arbitration as opposed to loan application letter to boss litigation are twofold. Firstly the right to choose a specific person to decide the dispute enables the on doctor assisted, parties to have the matters resolved by a person from a relevant discipline who is not necessarily a lawyer and write letter who may be thought for some particular reason to be a more suitable tribunal than a judge.

Secondly, the advantage is simple, simply that under arbitration, the dispute is likely to be resolved more quickly. The reason for application to boss, this is not due to the fact the arbitrator is, in general terms, at the parties' disposal, whereas a judge has public duties towards other litigants resulting in a comparable case in court being unlikely to be tried within the timescale which could be achieved at thesis on doctor assisted arbitration. Arbitration may also provide a more flexible range of procedures, especially the possibility of avoiding an how to loan letter, oral hearing. Having said that, the South, improved procedures brought in how to write letter to boss by the thesis on doctor suicide, CPR, allied to the special techniques evolved by how to write loan application letter, the Technology and Construction Court, make the difference between the relevant procedures less marked in dilapidation dispute instances, than in other litigation. A disadvantage of arbitration is also that the short essays for kids, parties will be put to the additional cost of paying the arbitrator's fee, as well as any assessors whom he may appoint. How To Write Application. In a dilapidations case, where the complexity of the issues may sometimes require a lot of time to be devoted by the arbitrator and assessor, the short essay, additional costs may be quite considerable.

Furthermore, in cases where a lengthy hearing is involved, the costs of hiring a suitable venue must also be borne in mind. Notably in such instances as those described, court fees payable in respect of a comparable dispute being resolved by write loan application to boss, litigation are relatively insignificant. A second process by which litigation in dilapidation cases may be avoided is short essay, that of expert determination. Expert determination means that unlike litigation, there are no formal procedures governing the procedure. Furthermore, an how to application to boss, expert essentially decides the matter referred to him according to essay etiquette his own knowledge and experience and not the evidence put before him by the parties. Expert determination may be less suitable than arbitration in dilapidation cases where substantial issues and sums of money are involved. This is because such a dispute will inevitably be so complex that it cannot generally be safely entrusted to the decision of a third party without the benefit of hearing and how to application letter to boss weighing and adjudicating upon the various points put by the opposing parties. On the other hand, expert determination may be well suited to disputes where the issues are straight forward or where the sums at stake are low or of particular issues which the for each article, parties cannot agree and the resolution of which is likely to facilitate an overall settlement of the entire claim. The Dispute Resolution Service of the Royal Institution of Chartered Surveyors is launching a scheme to facilitate determination of dilapidations disputes by application, a Chartered Surveyor appointed either as an arbitrator or as an expert, depending upon whichever the parties think is most appropriate in their particular instance.

In appropriate cases, this will be a speedy and cost effective alternative to litigation either for entire dilapidation disputes or for assisted suicide, particular issues which the parties cannot agree. A third alternative process to how to write loan application letter to boss be considered is that of mediation. CPR Part 26 and the Practice Direction on Case Management make provision for essay, a stay of proceedings to allow for how to letter, settlement of the case. Notably, it was one of the main objectives of the CPR to encourage mediation. The Protocol for Terminal Dilapidations claims for Damages published by the Property Litigation Association specifically recommends both parties explore the possibilities of mediation or other alternative dispute resolution process. The mediator does not make an award or determination binding the parties. Instead his role is purely to facilitate the settlement by english, the parties of their dispute and if mediation is successful, it will result in a compromise between the parties that is legally binding upon them in how to write loan application the same was as contract. In dilapidation disputes, the mediator is tooling, likely to be a Chartered Surveyor, although a suitably trained lawyer is also appropriate. It is unclear at present how frequently and with what degree of success mediation is being used as a result of the encouragement given by the CPR. Mediation seems well suited to the sorts of how to application letter to boss issues arising out of thesis dilapidation claims as they are usually a number of interlocking issues as well as a number of disputed points which are of commercial importance to the parties but which are not necessarily susceptible to resolution through the ordinary litigation process. A fourth and final alternative is that of Early Neutral Evaluation.

Early Neutral Evaluation is referred to both in the Admiralty Commercial Courts Guide, and in dilapidation matters in the Technology and Construction Court Guide. What is envisaged in the Commercial Court, is a discussion between the advocates and a judge, from which it appears to them that and Early Neutral Evaluation is likely to how to loan assist in the resolution of the dispute or of particular issues, in which case it will, if both parties agree, be referred to a judge who is to provide a without prejudice non-binding early neutral evaluation. The Guide provides that the judge conducting the evaluation will take no further part in the case unless both parties agree. Similar procedures are set out in paragraph 6.5 of the Technology and Construction Court Guide. The intention of this process is to allow both parties to learn what are the strengths and weaknesses of their respective arguments and to write your for each see the reaction of a judge of the court which will try the dispute if it does in fact go to court.

It is hoped this process will help the parties narrow the issues, or focus their arguments, or to accept that the result of a full trial is not likely to be much different from that indicated by the evaluation, and to compromise their differences accordingly. It is not thought that this particular alternative dispute resolution procedure has to date been much used in dilapidations claims, but the procedure would seem to be one which, in principle, might be usefully applied in such cases. So have the changes brought in by the application letter to boss, CPR been effective? In March 2001, the Lord Chancellor's Department published a Report Emerging Findings: An early evaluation of the Civil Justice Reforms presenting some conclusions as to the effects of the CPR. The report evaluates whether certain goals of the short essay, new procedures have been met, for example, the goals that litigation will be avoided wherever possible, will be less adversarial and less complex and more co-operative, and that parties of limited financial means will be able to conduct litigation on a more equal footing. The key findings were as follows:

1. Overall, there has been a drop in the number of write loan claims issued, in particular in the types of claims where the CPR have been introduced 2. Anecdotal evidence suggests pre-action protocols are working well to tooling die manufacturing thesis promote settlement before issue and reducing the number of ill-founded claims 3. There is evidence showing that settlements at the door of the court are now fewer and write to boss that settlements before the hearing day have increased. Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly. Despite the fact offers to settle can be made at any time during proceedings, there is a widespread belief that they are used in the early stages of a claim so that a trial may be avoided. 4. The number of cases using Alternative Dispute Resolution has increased, suggesting that since the introduction of the Civil Procedure Rules, parties are more likely to try alternative means of settling claims. 5. The use of write article single joint experts seems to have worked without problems.

It is likely that their use has contributed to a less adversarial culture, earlier settlement and may have cut costs. 6. Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success. 7. The time between issue and hearing for those cases that go to how to loan application to boss trial has fallen. For Each. The time between issue and hearing for small claims has risen since the introduction of the Civil Procedure Rules 8. The number of how to write loan letter to boss appeals in the course of proceedings appears to have fallen sharply. A definitive view on costs is thesis, however, difficult to establish.

The picture remains unclear with statistics difficult to obtain and conflicting anecdotal evidence. 9. The views of litigants in person are difficult to obtain in light of the fact they tend to use the how to application letter to boss, system only once. Whilst research is being undertaken to South American Map assess their views, anecdotally it appears that the courts are providing the assistance required. Loan Letter To Boss. 10. Sources external to the Lord Chancellor's Department show that, with one or two exceptions, the civil justice reforms have been well received overall. It may be said that, given the provenance of the report, it would be expected that it would seek to provide a favourable impression of the changes in procedural law. It should however be noted that much that has happened in recent years is not traceable to the Access to Justice Reports. As a longitudinal study, the report is long on anecdote and short on robust evidence (largely because evidence of the performance of the civil justice system prior to the CPR coming into simple essay effect is slender). To a large extent the report draws on in-house studies conducted by large law firms.

In some respects, the report understates the how to to boss, success of certain aspects of the new rules and, in others, overstates the success. Nationwide, amongst lawyers and judges, particularly those routinely involved with cases in South Map the middle range (including multi-track cases), there is a large amount of discontent. The criticism is not directed at the objectives of the how to write application, new civil justice system, but rather at a perceived lack of resources sufficient to make the system work properly. Doubtless the official answer to this will be that existing resources should be used more efficiently. The use of resources is at essay etiquette the centre of the Lord Chancellor's Department Consultation Paper on application letter, Modernising the Civil Courts published in 2001.

This paper claims to indicate how the Court Service will become a modern customer-focused organisation, providing excellent services, by thesis on doctor assisted suicide, the effective use of technology and through significant re-organisation. The key components of this new vision which the Court Service has for its future fore are said to be a new way of managing the civil justice system, new ways of serving our customers, and a new way of handling cases and supporting our judges and staff. To an extent, the Modernising the Civil Courts Programme is a response to the recommendations made by Lord Woolf in his Reports as to the crucial role of information technology in implementing the civil justice reforms he proposed. Those concerned with the lack of resources presently available to the civil justice system will need to be persuaded that the objectives of the Programme are not to reduce further the number of High Court and County court offices throughout the write loan application, jurisdiction and the number of staff serving in them. A consequence of the sharp drop in the number of civil claims being started since the introduction of the civil justice reforms came into effect is a serious reduction in the income from court fees. For this reason alone, the prospects for the Court Service providing an excellent service for its customers in the future has to be regarded as bleak. In relation to dilapidation claims, it is South American, arguable that it is not only the smooth running of the write letter, litigation process that is necessary, but also some reform in the law itself. Dilapidation law is derived mainly from the common law and like many other areas of die manufacturing English law it has developed rather sporadically and on a case by case basis. Few statutes of universal application exist, and how to letter to boss those that do have been enacted as a response to your opinion for each perceived unfairness of the common law in a particular area. Some statutory intervention has taken place in the residential field, although these have not followed any particular plan and in some areas require reform. The availability of specific performance as a means of enforcing repairing obligations illustrates how piecemeal the development in this area has been.

Over many years, it was believed that specific performance as a remedy was not available, particularly when dealing with the enforcement of a tenant or landlord's covenant. It was only in write application letter to boss 1974 that an write opinion for each, order for specific performance of how to loan application a landlord's covenant in favour of a tenant of a dwelling was finally conferred by write opinion article, statute. Despite this fact, some uncertainty remained regarding the availability of the how to write application letter to boss, remedy in relation to a tenant's covenant. It was only in die manufacturing March 1996 that the Law Commission recommended the court should be given a general power to how to loan application letter decree specific performance of repairing obligations, whether of landlord or tenant. This recommendation has not yet been implemented, although in 1998 the High Court decided at first instance that power to order specific performance of a tenant's repairing covenant exists anyway. The piecemeal development of the law has been matched by a deeply conservative approach to the drafting of simple essay dilapidations obligations in leases There are of course exceptions to the rule, but most draftsmen have tended to stick to the old tried and how to write loan letter tested formulae including the short essays for kids, traditional obligation to repair and keep in how to loan letter to boss repair. These have ordinarily concentrated on the technical operations that are to be carried out to the premises rather than the state in which the premises are to be kept. This has meant that there are some cases where the relevant obligation has been held not to have been broken even though the your opinion of 13 article, premises are clearly unusable.

This means that in a number of areas, the write loan letter, law of dilapidations does not provide the comprehensive solution to modern problems which a more structured and essay etiquette radical approach might provide. In March 1996 the Law Commission published its report Landlord and Tenant: Responsibility for the State and Condition of how to write letter to boss Property. This report contains a useful discussion of many aspects of the existing law, and sets out proposals for reform. The introduction concludes that there are some serious short comings in thesis the law governing the repair and maintenance of leasehold property. The report was published prior to the decision in application letter to boss Southwark Borough Council v Mills where the write your article, House of Lords reaffirmed the general rule that the landlord gives no implied covenant with regard to the condition of the property being let. The House of Lords held that two tenants of council flats had no remedy at common law for substantial interference by noise resulting from the write application letter, lack of assisted suicide sound proofing. This decision would no doubt have been regarded by the Commission as further support for its views on the need for reform. In the case of Habinteg Housing Association v James Staughton L.J said in relation to write application the problem in that case where the landlord was not liable to sort out an alleged infestation of cockroaches on a housing estate that, we are told that the Law Commission has been considering such a problem.

It is to be hoped that they will recommend a solution. What is more, it is hoped that if they do, Parliament will carry it out. Judges and lawyers are sometimes reproached when the law does not produce the right result. South Map. There are occasions when the reproach should be directed elsewhere. In Issa v Hackney LBC decided shortly after the how to write loan, publication of the Law Commission Report, Brooke L.J stated, parliament has now had the Law Commission's report for over six months. The resolution of this injustice lies in decisions being taken about the allocation and distribution of public sector finance to the health service and to local government which are for ministers and Parliament and simple not for write application letter to boss, judges to take in our constitutional scheme of things. In Lee v Leeds City Council Chadwick LJ commented on the recommendation in short the report that there should be an implied term as to fitness for habitation in the following terms, Parliament has not found time to give effect to that recommendation. Loan Letter To Boss. At the least, it has not done so directly.

Unless, as the appellants contends, the solution to the problem can be found in the provisions of the Human Rights Act 1998, the position remains that there continues to exist a class of case where serious wrong continues to be without a remedy in the civil courts. Despite the judicial encouragement, the Law Commission report has not been implemented to date, and it is not clear when, if at all, this may happen. Andrews, N, A New Civil Procedural Code for England: Party-Control Going, Going, Gone, (2000) CJQ 19, 9 Denehan, E, Dilapidations Law and Practice, 2004, Jordans Dowding, N and Reynolds, K, Dilapidations, the write opinion for each, Modern Law and practice, 3rd Edition, 2004, Sweet Maxwell Hall, JG, The Expert Witness, 2001, 3rd Edition, Bary Rose Law Publisher Hollis, M, Dilapidations: An introduction, 2003, The College of Estate Management Lightman, G, The Civil Justice Reforms in Practice, (2000), Butterworths Piggot, MS, Civil Litigation, (2004) Semple Piggot Rocher Plant, C, Blackstone's Civil Practice, (2004) Oxford University Press Vegoda, VH, The Dilapidation Handbook, 2002, London Lark Productions West, WA, West and write letter Smith's Law of Dilapidations, 11th Edition, 2001, Estates Gazette Dilapidations (RICS Guidance Notes), 4th Edition, 2002, RICS Publishing Effects of the Civil Justice Reforms, (2001) CJQ 20, 301 Emerging Findings: An early evaluation of the write your opinion for each article, Civil Justice Reforms (2001) www.open.gov.uk/lcd Modernising the how to loan application letter, Civil Courts (2001) www.courtservice.gov.uk Access to Justice - Interim Report (June 1995) www.dca.gov.uk Access to Justice - Final Report (July 1996) www.dca.gov.uk. If this essay isn't quite what you're looking for, why not order your own custom Law essay, dissertation or piece of coursework that answers your exact question? There are UK writers just like me on hand, waiting to help you. Each of us is qualified to a high level in American our area of letter to boss expertise, and we can write you a fully researched, fully referenced complete original answer to essay etiquette your essay question. Just complete our simple order form and you could have your customised Law work in your email box, in as little as 3 hours. This Law essay was submitted to us by a student in order to application to boss help you with your studies.

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