Articles Posted in Uncategorized

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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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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The seventh annual Bonnaroo Music & Arts Festival rolled out its most diverse lineup yet for 2008, with Metallica, Pearl Jam, Kanye West, Willie Nelson, Jack Johnson and My Morning Jacket among the acts on the bill for the June 12-15 event in Manchester, Tenn. We hope everyone who was in attendance enjoyed the show and made it home safely.

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We have had several calls already to our office regarding people who were stopped, searched, and charged with drug crimes on their way to and back from the show. Even when driving to and away from Bonnaroo, you always have the right to be free from illegal search and seizure. Calls with people arrested for possession of marijuana (marihuana), mushrooms, ecstacy, lsd, etc. are common to our office both during and immediately following the show. There are lots of things the police might do to trick you into giving up these rights (like threatening to call drug sniffing dogs), but you always have the right to say no to illegal searches.
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The Bonnaroo Music and Arts Festival (Bonnaroo, Rooville, BonRoo, Broo, roo or the ‘Roo for short) is a four day annual music festival by Superfly Productions and AC Entertainment, first held in 2002. The festival is held on a 700 acre (2.4 km²) farm in Manchester, Tennessee, 60 miles southeast of Nashville, Tennessee. The main attractions of the festival are the multiple stages of live music, featuring mostly jam bands, but also including hip hop, jazz, americana, bluegrass, country music, folk, gospel, reggae, electronica, and other alternative music. The festival features craftsmen and artisans selling unique products, food and drink vendors, and many other activities put on various sponsors.

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On January 10, 2007, Bonnaroo organizers Superfly Productions and AC Entertainment purchased a major portion of the site where the annual music festival is held. The purchase of 530 acres encompassed all of the performance areas and much of the camping and parking area used for the annual festival; the festival will continue to lease another 250 acres that currently serve as additional parking and camping.

Tennessee Law Enforcement Officers across the state are well aware that a large number of out of state visitors make the trek to Manchester for this annual event. Unfortunately, law enforcement in some parts of the state tend to be a bit more “aggressive” with these out of state visitors than they might normally. They often believe that Bonnaroo concert goers carry a multitude of illegal substances with them when they visit the show. There are several things concert goers should remember should they be pulled over by one of these law enforcement officers.
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We as Americans are protected “against unreasonable searches and seizures” under the Fourth Amendment to the United States Constitution. Search warrants are not to be issued for less than “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. If a judge finds that a policeman or other law enforcement agent violates an individual’s fourth amendment rights, then any and all evidence they collect as a result of the illegal search will be excluded at trial. This is what is known as the “exclusionary rule”.

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The “exclusionary rule” has its roots in a case decided by the Unites States Supreme Court in 1886, Boyd v. United States. It was not until 1961 in the case of Mapp v. Ohio, that the Supreme Court made it clear that the exclusionary rule applied to all federal AND state law enforcement officials. However, as the Supreme Court has become more conservative in recent years, the exclusionary rule now has a much more narrow application than when the Mapp case was decided in 1961.
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Getting a DUI is a life changing experience. Many times, the people charged with this crime have little to no experience with the criminal justice system and have no idea what to expect. DUI also is a crime which law enforcement and District Attorneys are very aggressive in prosecuting. The blood alcohol content (BAC) limit in Tennessee is .08, this can mean as few as two drinks for some people. A persons BAC will depend on many factors, such as weight, time period in which drinks are consumed, a persons individual rate of metabolism, and many others.

Driving Under the Influence is one of the few crimes for which an individual can be convicted solely on the opinion of a police officer. While most Tennessee DUI offenses are classified as misdemeanors (although a fourth-offense is a Class E felony in Tennessee), the penalties for Tennessee DUI are typically much more serious.

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Upon conviction for First Offense DUI in Tennessee, a person is subject to a maximum sentence of 11 months, 29 days, with a minimum of 48 hours in jail, or a minimum of 7 days in jail if, at the time of the offense, the defendant’s blood alcohol level was .20% or higher. A first offense also require a minimum $350.00 fine and court costs; the loss of driver’s license for a period of one year; and enrollment in a court approved DUI education course.

Attendance at AA meetings may also be required. License revocation for one year is also required when a defendant is found to have refused to submit to a chemical test (blood, breath, or urine) after being lawfully requested to do so. This may apply even where the defendant is not convicted of DUI.
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Many people in this country feel that marijuana should in fact be decriminalized. Multiple states, counties, and cities have decriminalized marijuana. Most places that have decriminalized marijuana have civil fines, drug education, or drug treatment in place of incarceration and/or criminal charges for possession of small amounts of marijuana, or have made various marijuana offenses the lowest priority for law enforcement. A few places, particularly in California, have removed almost all legal penalties for marijuana, including personal cultivation.

540325_plantator.jpg In Tennessee, possession of Marijuana is a Class A Misdemeanor and can carry with it a fine of up to $2,500 and a jail sentence of up to 11 months and 29 days. First convictions for any misdemeanor has a mandatory minimum fine of $250. Second convictions $500, and subsequent convictions, $1,000. A person in Tennessee found in possession of more than one-half an ounce or 14.75 grams, may be charged with possession with intent to sell, a felony charge. The class of felony will increase depending on the amount of marijuana a person is charged with being in possession.

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Recently the “implied consent” law in Tennessee has changed to allow officers the choice to ask you to submit to a breath test or blood test or both. The most recent change makes it possible for an officer to require a driver to submit to both a breath and a blood test. It appears that under the new law, an officer could ask an individual to submit to a breath test and if the results are not to his liking; could require an individual to submit to a blood test as well.

However, neither the breath test nor the blood test may be administered to determine BAC unless the officer has reasonable grounds to believe the person was driving “while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants”. Also, for the results of such test or tests to be admissible as evidence, it must first be established that all tests administered were administered to the person within two (2) hours following such person’s arrest or initial detention.
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