Nashville DUI Implied Consent
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I am asked quite often, “Can you explain implied consent to me, what does it really mean, do I have to blow? DUI Implied consent in Nashville means; That any person who drives any motor vehicle in the state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic or drug content of that person blood; provided, that such test is administered at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while under the influence of an intoxicant or combination of intoxicants.
In essence the implied consent law is saying that you gave permission when you decided to drive in Tennessee to allow for a sample of your blood alcohol content if an officer has reasonable grounds to believe you are driving under the influence. Reasonable grounds is equated to probable cause according to our courts. So if the officer has probable cause to believe you are driving under the influence he may ask you to submit to chemical tests, and in Tennessee he may ask that you submit to more than one type of test.
Now the next question is should I blow into the breathalyzer, or give blood for the chemical tests to be done on me, first lets state that if you refuse you will be charged with violating the implied consent law, that in essence is a charge that revokes your license for one year, however you may apply for a restricted license to go to work and school. If you blow into the breathalyzer or give blood for a chemical test those results may be used against in a DUI Per Se charge, in a DUI Per Se the state need only show you are at or above the legal limit of .08% BAC, that is all they have to show a jury to try and convict you. Without a chemical test there is no BAC percentage to show the jury, the charge presented to the jury would be a standard DUI charge in Tennessee. There is no double jeopardy issue if you are charged with DUI and DUI Per Se in Tennessee, if you are convicted they will merge for the purpose of sentencing.
Should you have questions regarding a DUI, please feel free to phone the office and we will be pleased to speak with you.
Nashville Drag Racing Arrest
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Being charged with drag racing in Tennessee is a class B misdemeanor, however most of the time that illegal drag racing is in the media is when young people are in devastating wrecks as a result of the race. In Tennessee drag racing is; Ascertaining the maximum speed of a vehicle in a given distance or time; the use of one or more vehicles to compare speed in a given distance or time; comparing two vehicles in an attempt to out gain or out distance each other or to arrive at a given destination simultaneously or before the other vehicle; the use of a vehicle in an attempt to carry out a challenge with reference to performance. The statute further notes these acts are considered drag racing when they occur on a public highway, public highway is a very broad term to include almost all places vehicles are permitted to go in regards to dedicated roads, and roads maintained by the State of Tennessee.
Often this situation involves younger adults pitting their vehicles against each other, it can have deadly and far reaching consequences for everyone involved. Noting above, drag racing is a class B misdemeanor if the only thing that happened was a drag race, however drag racing that results in someone getting seriously hurt can result in a class D felony carrying 2 to 12 years in the jail; If a person is killed during the drag race a class B felony can result that carries with it a sentence of 8 to 30 years in the penitentiary, (not jail). There are also fines levied by the State of Tennessee for each conviction of drag racing.
Upon conviction of a drag racing offense you can have your license revoked for one year for a first offense, a second conviction in 10 years of the first may result in a permanent revocation of your Tennessee drivers license. Should you need assistance in your case, please free free to phone the office at (615) 308-2633.
Counterfeit watches, purses, Tennessee
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If you have ever traveled to large cities outside of Nashville you may have seen areas of the those cities where they sell counterfeit merchandise, such as fake rolex watches, fake Gucci purses, one might think to themselves that if they are sold openly here, what is the problem? In Tennessee this crime falls under 39-14-152 Use of counterfeit mark and logo, and it is a crime.
Under the statute of counterfeit merchandise there is a difference between making the product and selling the product, here I will only deal with selling the product. In Tennessee if you are caught with 25 or more products carrying a counterfeit mark, there may be an inference that you are possessing these items to resell them, in other words that is your intent, can this inference be rebutted, it can possibly be rebutted, but the state can most certainly infer it.
Under the counterfeit law if it is determined that you violated section (b) 2 your violation is graded as a theft crime, the problem with this is, how does one determine the amount of the theft? The State of Tennessee discusses in the counterfeit law that the value is graded at counterfeiters regular price for the item, which is much better for the client than grading it at the value of the real item.
The theft statute grades theft as follows; $500.00 or less is a class A misdemeanor; More than $500.00 but less than $1,000.00 is an E felony; $1,000.00 but less than $10,000.00 is an D felony; $10,000 but less than $60,000.00 is an C felony; $60,000.00 or more is an B felony.
The criminal penalties and jail time are not a bar to the companies of the products seeking other legal remedies against you in civil court, ie a lawsuit against you for selling products with their logo.
Another problematic concern for the client might be the tax issue regarding any sale of merchandise that Tennessee Department of Revenue did not receive sales tax on, and or the Federal Government not receiving notice that you may have made income off of these products.
Should you need assistance please feel free to phone the office at (615) 308-2633 to discuss your case.
Nashville Official Misconduct Arrest
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Official misconduct in Nashville Tennessee has been used quite often lately, but what is it really, when can it be charged? Are there any defenses a criminal attorney can use for his or her client? In Tennessee we have seen this charge placed on police officers, judges, mayors and other types of public servants, Nashville Tennessee Official Misconduct involves a public servant who commits the offense with intent to obtain a benefit or to harm another, intentionally or knowingly:
(1) Commits an act relating to the servants office or employment that constitutes an unauthorized exercise of official power;
(2) Commits an act under color of office or employment that exceeds the servants official power;
(3) Refrains from performing a duty that is imposed by the law or that is clearly inherent in the nature of the public servants office or employment;
(4) Violates a law relating to the public servants office or employment; or
(5) Receives any benefit not otherwise authorized by law.
Official misconduct is a class E felony and carries with a possible 1 to 6 year sentence, it is a charge that is taken very seriously by the state, due to the fact that they feel like you have betrayed the public trust. There are defenses involved in this charge, such as what the benefit you received, did the benefit involve a substantial risk of harm to undermine the official impartiality?
What are some examples of official misconduct? Accessing private information on government data bases that you have access to; revealing bids on a state seal bid contract to one bidder; receive a gift that you are not allowed to accept; and many scenarios where someone in law enforcement such as a state trooper or metropolitan police officer can be charged with official misconduct.
The list above are just a few of the ways in which someone could find themselves under arrest for official misconduct, it is a serious matter due to the public trust involved, if you or a friend have been charged with official misconduct, give the office a call at (615) 308-2633, we would be pleased to meet with you about your case.
Nashville Criminal Attorney
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As a third year law student at Mississippi College I was permitted to practice law in Mississippi, and with that chance to practice I was involved in my first felony jury trial at age 26, returning home as a criminal attorney in Nashville I have defended individuals at trial accused of murder, dui, attempted murder, class A drug crimes, just to name a few, in each case my law office was able to give a concentrated effort to each client, and the facts that revolve around each client’s case.
During the course of these trials I have had the chance to cross examine FBI agents, TBI agents, police officers, detectives, government agency representatives, informants, judges, probation officers, and many other individuals, with this experience it enables me to approach a case with a long term outlook, knowing where the case is heading to is very important, it allows me to give an assessment to the client.
These are a short list of some of the areas in which I provide criminal defense work, simple possession, assault, DUI, public intoxication, BUI, homicide, vehicular assault, Owner DUI, criminal responsibility for conduct of another, theft, forgery, drug crimes, solicitation of prostitution, public corruption charges, bribery, understanding the aspects of criminal law and procedure in Tennessee allows me to understand the elements involved in each charge, and the proof required to convict at trial.
I represent individuals throughout Tennessee including, Nashville, Hendersonville, Gallatin, Murfreesboro, Cookeville, Columbia, Clarksville, Lebanon, Mt. Juliet, Dickson, Winchester, Smyrna, , Smithville, Lavergne, Carthage, Tullahoma, Manchester, Springfield, Knoxville and Memphis.
Please give the law office a call if we can help you, I provide concentrated, experienced, and focused representation in your defense. You may reach the office at (615) 308-2633.
Nashville DUI Vehicular Assault
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What is it? A DUI vehicular assault charge is a very serious matter, it carries with it a 2 to 12 year sentence in prison, it can result in a lengthy suspension of your driving privileges, along with a fine not to exceed $5,000.00 dollars. In Nashville an accident while you are intoxicated can result in a vehicular assault charge.
The statute carries with it the required language that makes a DUI and a DUI vehicular assault charge merge, thus preventing double jeopardy, meaning a person cannot be penalized separately for a DUI and a vehicular assault charge that occur out of the same incident. A violation of double jeapordy occurs when one is punished twice for the same crime, thus it is not allowed in this instance.
The actual charge of a DUI vehicular assault in Nashville is when one as a result of their intoxication recklessly causes seriously bodily injury to another by operation of a motor vehicle. There are defenses to this charge that can be raised based on the language of the statute. A conviction of vehicular assault will be counted as a prior DUI should you be convicted of another DUI in the future, thus increasing your penalties. Under the vehicular assault statute in Tennessee you are not eligible for pre-trial diversion.
An example of a vehicular assault involving a DUI might be, you rear end another car on Hillsboro Pike in Nashville, the person is taken away by ambulance with a sore back and broken finger due to the impact withyour car, that could result in both a DUI charge and vehicular assault in Nashville.
Please feel free to phone my office, should you need representation.
Nashville DUI Owner
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In reviewing some of my email I generally get some questions in regards to Nashville DUI Owner charge, many ask, is there such a situation where I could be charged with a dui?
Well yes there is such a thing as an owner DUI in Tennessee. As an owner of the vehicle you allowed someone to drive your automobile while they were under the influence. In Tennessee as an owner of a vehicle you have a duty not to allow an impaired person to operate and control your car.
Many times I have heard the defense of, ”I let my friend drive, they were more sober than me”. In Tennessee that is not a valid defense to a DUI Owner charge. Being sober is not a defense either, in regards to allowing an intoxicated person to operate and control your vehicle, you can still be found guilty of an owner DUI charge. It is a charge of intent, meaning if you are passed out and someone takes your keys, then you may not be liable for the DUI owner charge in Tennessee.
Could you be convicted of a Owner DUI in Tennessee even if you are not in the car? The answer is yes, it is not hard to imagine that a court could find you guilty of an Owner DUI if you provided the keys to your car to an intoxicated person, even though you never actually got in the car and rode anywhere with the principal defendant.
What if the defendant hurts someone in a wreck while driving my car, and they are intoxicated, can I be convicted of a crime more serious than DUI? I have heard this question quite often, the answer is yes. The courts have said in State v. Williams, “if a person intentionally permits another to operate a motor vehicle knowing the driver to be intoxicated, the person is criminally responsible for the crimes committed by the driver”.
There has been some further case law in regards to the owner DUI charge in Tennessee. It has been established through case law that one may be held liable for the acts of another relating to a DUI charge where the owners acts did not happen until after the event, ie, there was a crash and the owner passenger of the vehicle took steps to cover up the crime, (a crime like vehicular homicide).
Owner DUI charge in Tennessee is a serious matter, please feel free to phone the office with any questions you might have, I would be pleased to speak with you.
Expunge criminal record, diversion
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Quite often someone will say to me, I have read where I can get my DUI taken off of my record, well in Tennessee that is wrong, no other way to put it, not possible, not now, not ever. There are many instances where both judicial diversion and pre trial diversion are available in Tennessee, a DUI is absolutely not one of them. Ok so what is judicial diversion and what is pre trial diversion? And yes they are two separate things, accomplishing the same goal, but with one important difference.
Judicial diversion is under a statute in Tennessee entitled 40-35-313. It is quite possibly the most important statute to first time offenders. This statute allows someone to complete a probationary term, (should all requirements be satisfied), the judge may then allow you to expunge these charges off of your record forever. Judicial diversion allows you to honestly answer on all applications (after completion of probation) that you have never plead guilty to a crime. There are several crimes to which you cannot use 40-35-313, many involve violence and sex crimes, and again you cannot use 40-35-313 on a Nashville Tennessee DUI charge. The main difference in judicial diversion and pre trial diversion, you agree in a judicial diversion 40-35-313 that you are going to be convicted of the crime that you are on probation for, should you not complete the probation, you in effect have a conviction hanging over your head while you are on probation, and if you fail at probation, then it becomes a conviction, and the judge can have a sentencing hearing and sentence you to jail. Should you complete the probation you are eligible to have your entire record cleared of the charges, ie all records destroyed.
What is pre trial diversion in Tennessee? Pre trial diversion involves actually suspending the prosecution of your case. If you will, the prosecutor agrees to hold the prosecution of your case until you complete all of the requirements of probation. In pre trial you have not agreed to be guilty of a crime, should you fail to complete the probation, the prosecution of your crime will start again if you fail the probation time, you have not agreed that you will automatically be guilty of the crime, should you not complete your probation, and once again this is not available for a Nashville DUI. Just like judicial diversion there are crimes to which this pre trial program is not available, such as some violent crimes and sex crimes. Once all the terms of probation have been met you are illegible to have your record expunged, ie all the paperwork destroyed.
To qualify for these programs it is necessary to complete a TBI records check, most courts await this decision from the TBI before proceeding under either program. As I represent many people in many different counties in Tennessee, these programs are administered very differently from county to county, some are very formal in using these programs, ie quite a lot of paperwork by the attorney to make sure the client gets in the program and gets their record expunged, to some counties simply holding the charge in abeyance, ie just setting it aside in the clerks office for a year and then returning a year later to dismiss the charge as long as the client has done everything the judge has requested.
Does the state ever refuse diversion? Yes the state does refuse sometimes, following the proper procedure rules in Tennessee you may appeal this denial to the Court of Appeals or if you are in General Sessions you may appeal to the trial courts for a determination on whether the diversion was properly denied.
There are many time specific requirements, prior conviction determinations, and prior sentence served determinations that have to be made in applying either of these programs. Should you wish to consult with me, please call my law office at (615) 308-2633.
I have used both of these programs to help many first time offenders keep life altering convictions off of their records.
Nashville Drug Possession
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It is not an easy thing to be pulled over by the police, but sometimes when you are driving down the interstate you may notice some large white blazers parked in the middle of the interstate, 24, 40 or 65, these are generally 20th judicial drug task force officers, including drug sniffing dogs. Every time that you are pulled over by a police officer it involves a 4th Amendment issue, was the stop legal? Was there a reason to stop you and search for drugs? What was the reason? Sometimes as a criminal defense attorney I find that in the police officers attempt to find people with drugs, they forget to follow proper procedure in the drug search. Should your rights have been violated during the drug search, I will fight vigorously to suppress the evidence that the police obtained. All illegally obtained is considered fruits of the poisonous tree, and must be suppressed.
In defending a drug crime involving a search one needs to focus on the fourth Amendment issues. More and more these issues are a result of a stop by police officers (in search of drugs) on a motorist on the interstate. It is my job as a criminal attorney to make sure that your rights are protected against such violations. Whether the search revealed medication that did not belong to you, marijuana, cocaine, or other narcotics, the 4th Amendment issues must be protected in every clients stop. I will fight hard to protect those rights.
Under case law in Tennessee even just being in the same room with drugs does not prove they are yours, or that you have ever ingested them, many times I have represented individuals who have been at parties where drugs were found in another room, they were charged, but under the Tennessee case law a very favorable result was had due to proper research and protection of 4th Amendment rights.
There must be probable cause to search, not the police going on a hunch or guessing, but real facts to support probable cause. It is just simply not enough to think someone has drugs in Tennessee, you must have far more than that to proceed with a search. As a criminal attorney in Tennessee I will make sure and review every part of the search to uphold your rights.
During the course of my practice as a criminal attorney I have filed suppression motions in Tennessee courts, I have tried class A felony drug charges to a jury. In reviewing your facts, if we find that your rights were violated we will work hard to suppress the fruits of the illegal search. I have defended people for misdemeanor drug possession all the way up to class A felony drug possession, give me a call today and let me review the facts of your case.
You may contact the law office at (615) 308-2633, we look forward to hearing from you.
Nashville DUI Attorney
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So why do most people get pulled over for a Nashville DUI, well we will exclude things like accidents, sleeping at the wheel or driving your car into a ditch, the reason I exclude these is because the metro police can always stop to investigate these things, and if you are present then they can investigate what happened, and there is generally nothing wrong with that type of stop.
Ok, so what gets you pulled over for a traffic stop for investigation of a DUI, well first thing, if you make a traffic infraction that is enough, The Supreme Court of the United States has said that no matter the cops real intent on stopping you, as long as the violation is valid for the stop, that is ok. This leads me to traffic violations to investigate a Nashville DUI, ie, rolling through a stop sign, (yes that is a violation), running through a yellow traffic light, speeding, the easiest one to spot (no head lights on), weaving in the road (however there is an acceptable amount of weaving within your own lane on the road that does not rise to the level of allowing the cop to stop you) as we do not drive perfect, driving under the speed limit(how far under you can drive is an argument that can be made by a criminal attorney) , following to closely (argument can be made by criminal attorney), failure to yield, turning where there is a no turn on red sign. These are a few of the reasons I have heard regarding moving traffic violations.
Ok, so If you don’t have a moving violation, what are some other reasons they could pull you over and investigate for a Nashville DUI? Your car tag is falling off of your vehicle, your car tags have expired, you have a break light out, you have a tail light out, you are breaking a city ordinance for music to loud in your car, you throw a used cigarette out of your car (littering), These are just a few of non moving type violations that can get you pulled over for a stop, where it can quickly turn into a DUI investigation.
There certainly are legal arguments to be made for every fact pattern, The Supreme Court has set out many guidelines to protect fourth amendment rights in regards to police stops of motorists. Every case stands on its own in regards to the facts. Consulting a DUI attorney is always a good place to start.
Please feel free to contact my office at (615) 308-2633 to discuss your case, there is no obligation when you call.
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