July 17, 2014

FOLLOW ME

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Hey everyone, don’t forget to follow me on twitter @DonHimmelberg and go “like” my Facebook page M. Don Himmelberg & Associates. I will be trying to keep you updated with news, law, and life as a criminal defense attorney in Nashville, Tennessee.

July 10, 2014

Domestic Violence Front and Center in Nashville

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Domestic Violence victims as well as advocacy groups have been voicing their concern with Domestic Violence laws and procedures. Currently, those laws in place might be changing and powers of the judiciary limited. Recently, a Nashville developer was arrested for domestic assault against his ex-girlfriend. Being somewhat known and arrested is not the story here. The story is that he was released from jail earlier than expected and went back and assaulted the victim again that same morning. In a domestic assault case the accused is supposed to be held in custody for 12 hours before being released on bond, this is known as a “cooling-off” period. In this case a judge had waived the 12 hour “cooling-off” period and deemed it not a domestic case due to bad information. Waiving the 12 hour “cooling-off” period is not uncommon and is up to the Night Court commissioner. Since domestic violence can be an array of offenses each domestic violence case is different. Case law does not set out guidelines, so the Night Court commissioner has to examine the facts for each case differently. Legislatures now want to take that power away from judges and make the law more stringent when dealing with domestic violence cases.

Being charged with a domestic crime is a serious offense. Some domestic crimes are felonies and can carry lengthy prison sentences as well as large fines, domestic violence treatment programs, community service, and more. Individuals charged with a domestic crime have the right to hire an experienced attorney for representation. If you or someone you know has been charged with a domestic crime call immediately 615-308-5405 for a free consultation. Also note that if convicted of a domestic crime you are prohibited from possessing a firearm under law.

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July 3, 2014

Happy 4th of July

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MDH & Associates would like to wish everyone a safe and happy holiday weekend. Remember not to drink and drive and always find a sober ride home. DUI checkpoints will be amped up this weekend and some checkpoints will be a NO REFUSAL. This means if you drive through a DUI checkpoint and they ask you to submit to a BAC test (Blood Alcohol Content) or Blood test you can’t refuse the test. In other circumstances you wouldn’t have to submit and would get an Implied Consent charge instead. Now if you refuse at these NO REFUSAL checkpoints the officer can call up a judge or judicial commissioner and get a warrant to have your blood taken. If this happens to you over the 4th of July weekend, please contact 615-308-5405. We can help you fight and go over your options.

Also remember you can still get a DUI on the lake or river. A BUI (Boating Under the Influence) conviction for operating under the influence will result in fines of up to $2,500 on the first offense, $2,500 on the second offense and $5,000 for the third offense. A jail sentence of 11 months and 29 days may also be imposed for any conviction and operating privileges may be suspended from one to ten years. Additional federal penalties may also be charged. You can deny the field sobriety test but you will be charged with Implied Consent.

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June 30, 2014

GET A WARRANT! SCOTUS says no more warrantless searches of cell phones.

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The Supreme Court in the case of Riley v. California held that police must obtain a warrant before going through people’s cellphones. In a unanimous decision, this ruling is at the soul of privacy rights and marks a win for more American privacy in the ever changing technology era.

This ruling arose from two different cases Riley v. California and United States v. Wurie. In both cases police seized the defendant’s cell phone, incident to arrest, looked through it for information and that incriminating information found was used against the defendants in court.

The Police argued that searching through data on cellphones was no different from asking someone to turn out his pockets, but the justices rejected that, saying a cellphone holds the most personal and intimate details of someone’s life and falls squarely within the Fourth Amendment’s privacy protections.

The Supreme Court went on to say, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice John G. Roberts Jr. wrote in the unanimous opinion. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

SCOTUS (Supreme Court of the United States) went even further to say law enforcement cannot check a cellphone’s call log because it could contain more information than phone numbers, and examining the call log is a violation of privacy that can be justified only with a court-issued warrant.

If a warrantless search was conducted on you or a family member leading to a criminal charge please contact MDH & Associates for a free consultation 615-308-5405. It’s good to know your rights!

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June 25, 2014

SOCIAL MEDIA

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Alright, Alright, Alright we are starting to make some head way on the social media side of things. Please follow us on twitter @donhimmelberg https://twitter.com/DonHimmelberg

Also please go like and share our facebook page https://www.facebook.com/mdhandassociates so more people know where to turn to when they need help.

June 18, 2014

UPDATE

WE HAVE MOVED!!!

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The law office of M. Don Himmelberg & Associates has moved to a new location. We are currently located inside the Higgins Firm on 525 4th Avenue South, Nashville, Tennessee. Same great people just a new building a couple blocks from our previous location. With these changes, we are also making some new changes in a way to communicate with our clients and keep people of Tennessee updated on the law. So the blog site will continually be updated with new exciting material covering, Tennessee law updates, U.S. and Tennessee Supreme Court decisions regarding criminal matters, local and national news, and finally our case disposition updates.

Himmelberg & Associates will also be found on Facebook, Twitter, Linkedin and many more social media outlets. The usernames or address will be posted as soon as we finish updating them. Remember if you or someone you know needs help in a criminal matter, we are here to help. Our consultations are always free so please call 615-353-0930 or 615-308-5405.

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November 20, 2012

Suppression of Evidence

Suppression of Evidence for a criminal defense attorney is pivotal in some major cases. Evidence that the District Attorney has obtained such as a search warrant, wiretap, video, and photos all can be challenged for its admissibility. Evidence is suppressed when a judge decides that the evidence in question was illegally obtained. This is known as the “exclusionary rule.”

Tennessee Code 50-4-108; states the following for suppression of evidence,
(a) Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may in any judicial or administrative proceeding move to suppress any evidence or information received, or moves for the return of any item seized, by the agency pursuant to the inspection.
(b) If the court or the administrative agency finds that the inspection was unlawful, the evidence and information shall be suppressed and any item seized returned and not considered in the proceeding.
[Acts 1979, ch. 345, § 9; T.C.A., § 50-608.]

There are other types of evidence that you can have suppressed at trial also. The “fruits of the poisonous tree” doctrine states that additional evidence discovered as a result of illegally obtained evidence is excluded at trial. For example, if an officer illegally searches your car and finds your illegal drugs in it, the drugs cannot be used as evidence at trial. The illegal search is the “poisonous tree” and the illegal drugs are the “fruit.”

However, there are some exceptions in which evidence that was obtained illegally may be used in court.

These exceptions are:
•Inevitable discovery – this means that the police would have inevitably found the evidence, with or without the illegal search
•Independent source – the discover of the evidence involved a combination of legal and illegal means, but the evidence could have been discovered by a reliable source
•Good faith – the officers who discovered the evidence has no reason to believe their search was illegal (i.e., believed the search warrant to be valid when it was not)
•Attenuation – if the connection between the illegal search and the evidence is sufficiently weak, the evidence may be considered untainted.

If you have been the victim of an illegal search and seizure or have questions about evidence suppression contact Attorney Don Himmelberg for your free consultation.

September 13, 2012

Sex Offender Registry Violations

Sex offender registry laws in the state of Tennessee continue to get stricter. Tennessee laws have increased sex offender registration violations from misdemeanor offenses to felony offenses. If you are convicted of any sexual offense you have up to (48) hours to notify the proper authorities in person. If you fail to comply with any of these regulations you may find yourself behind bars. Please contact Attorney Don Himmelberg if you or anyone you know would like more information about sex registry violations or to set up your free consultation.

Tennessee Code 40-39-208. Violations -- Penalty -- Venue -- Providing records for prosecution

(a) It is an offense for an offender to knowingly violate any provision of this part. Violations shall include, but not be limited to, the following:

(1) Failure of an offender to timely register or report;

(2) Falsification of a TBI registration form;

(3) Failure to timely disclose required information to the designated law enforcement agency;

(4) Failure to sign a TBI registration form;

(5) Failure to pay the annual administrative costs, if financially able;

(6) Failure to timely disclose status as a sexual offender or violent sexual offender to the designated law enforcement agency upon reincarceration;

(7) Failure to timely report to the designated law enforcement agency upon release after reincarceration;

(8) Failure to timely report to the designated law enforcement agency following re-entry in this state after deportation; and

(9) Failure to timely report to the offender's designated law enforcement agency when the offender moves to another state.

(b) A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.

(c) The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350), and imprisonment for not less than ninety (90) days.

(d) A second violation of this part is punishable by a fine of not less than six hundred dollars ($600), and imprisonment for not less than one hundred eighty (180) days.

(e) A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100), and imprisonment for not less than one (1) year.

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September 6, 2012

New Law on Synthetic Drugs

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New Law on K2 and other Synthetic Drugs

Tennessee has started to crack down on K2 and other synthetic drugs that were commonly sold over the counter at tobacco and convenience stores state-wide. As of July 1, 2012 the amended law makes it illegal to possess, produce, or distribute any forms of these synthetic drugs. Tennessee legislature has made it a felony to produce any form of K2, synthetic marijuana, bath salts or other designer drugs for production, manufacture, distribution, or possession with intent to produce, or distributes the synthetic cannabinoids. Also, the bill states that stores selling these synthetic drugs can be padlocked as public nuisances. As enacted, it is Class E felony for manufacturing or selling an imitation controlled substance and the Class A misdemeanor for ingesting an imitation controlled substance and possessing an imitation controlled substance for the purpose of ingesting it. A Class E Felony is a serious offense and carries jail time along with up to a $5,000.00 fine. Class A Misdemeanor is punishable by 11 months 29 days in jail and up to a $2,500.00 fine. If you or anyone you know have been charged with possessing, producing, or distributing these synthetic drugs please contact Attorney Don Himmelberg.

Commonly known names of synthetic drugs: Nightmare Herbal Incense, Purple Diesel, Bang Bang, Cloud 9 Mad Hatter, Skywalker Herbal Potpourri XXXX-tra Intense Blend, Charlie Edition, Diablo, 7H Kush, 7H Hydro and K4 Lou.

Call and schedule your free consultation!


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May 15, 2012

Implied Consent Law in Tennessee

In Tennessee and in many other states across the country when drivers get behind the wheel when they have been drinking or doing drugs, they endanger not only themselves but the other drivers on the road as well. A certain law known as the implied consent law means that when a driver operates a vehicle in a state with this law, they have given implied consent to be subject to a chemical test if they have been driving under the influence. If you have questions about how this law applies to your case and just want to know more, then you should speak to a Tennessee DUI lawyer right away. They will help answer any questions you may have about this law and whether or not it applies to your case.

According to National DUI laws, it is believed that revoking an offender’s driving privileges keeps the offender from driving and that it is effective. However, many times revoking a person’s driving privileges only means that the person can no longer drive legally. As a result of this, many states, including Tennessee have started license suspension programs for failing a chemical test and for refusing to take a test.

This implied consent law though may be in violation of the Fourth and Fifth Amendment to Constitution because the Fourth Amendment says that, the right of the people to be secure against unreasonable searches and seizures, shall not be violated,” and the Fifth Amendment says that, no person . . . shall be compelled in any criminal case to be a witness against himself." However, some states, including Tennessee, have made refusing to take a blood test a misdemeanor because the privilege of the Fourth and Fifth Amendments only protects an offender from being compelled to testify against themselves or provide the state with evidence and the blood test and analysis of it in a DUI case does not involve compulsion according to these Amendments.

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June 8, 2010

Bonnaroo 2010!!

This week marks the ninth annual Bonnaroo festival in Manchester, Tennessee. It seems each year this festival keeps getting bigger and draws thousands of fans to the otherwise sleepy town of Manchester in Coffee County, Tennessee. The lineup this year includes acts such as Dave Matthews, Jay Z, Stevie Wonder, Kings of Leon, and many, many others. We certainly hope everyone who is planning on attending the show has a great time and is both safe and hassle free. Please note, law enforcement officers throughout the State of Tennessee will be out in full force as you make your way to the show in Manchester this weekend.


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June 10, 2009

Bonnaroo 2009!

This week marks the eighth annual Bonnaroo festival in Manchester, Tennessee. The lineup this year includes acts such as Phish, Bruce Springsteen, the Beastie Boys, Nine Inch Nails, Snoop Dogg, and David Byrne. As always, we hope everyone who is planning on attending the show has a great time and makes it to the show both safe and hassle free. Please note, law enforcement officers will be out in full force as you make your way to the show in Manchester this weekend.

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