Articles Tagged with criminal defense attorney

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Many parents may not appreciate the fact that dating violence fits under the umbrella of domestic violence. This is a reality that both teens and young adults deal with every day. Dating violence involves both victims and abusers. While it may be impossible to envision your child as a perpetrator of domestic violence, being aware of the signs and symptoms of abusive behavior is crucial if such behavior is to be eliminated before it becomes a pattern. By the same token, teens who have been falsely accused of such behaviors need protection. If your teen has been accused of this kind of behavior and has been charged with criminal actions, it will be necessary to provide a strong defense in order to avoid serious penalties. 

Dating Violence is Widespread

Teen dating violence (TDV) is a serious issue, which is why California statute is so harsh. It is defined as any verbal, emotional, physical, economic, technological, stalking, or sexual abuse among adolescents ages 10 to 24. Consider these national statistics: 

  • 1.5 million high schoolers are directly affected by dating violence annually.
  • One in four eighth and ninth graders report having suffered dating violence, and nearly 10% report having experienced sexual abuse.
  • One in ten students in high school report being physically harmed by someone with whom they are in a romantic relationship.
  • The majority of students who report incidents of acquaintance rape say drugs or alcohol were being used at the time of the incident.

Penalties

A guilty conviction for domestic battery in California could mean your teen will be jailed for up to a year, in addition to being fined $2,000. If your teen is charged with domestic violence, it is a felony, and the time behind bars jumps up to as long as four years while the fine triples to $6,000. Sexual assault could face four years in prison and a $10,000 fine, and a rape conviction could mean up to eight years in prison and $25,000 in fines.

Before Dating Violence Becomes an Issue

Eight in 10 parents surveyed report they do not know much about teen violence, or they do not believe teen violence is an issue. This reveals the need for parents to learn about and intervene with the issue before it becomes a problem! 

  • Model and discuss what healthy social relationships look like and the feeling they engender before teens start dating.
  • Teach teens effective and assertive communication skills.
  • Discuss the warning signs of DTV, such as extreme demands, jealousy, and controlling behaviors.
  • Make it a point to talk to your teen often about their social life, and provide your teen with the knowledge they need to make healthy decisions.
  • Encourage teens to talk to you right away if things do not feel right in their relationships, and then listen without judgment.
  • If you suspect a problem, get help.

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With two million Americans in jail or prison and another three million under some kind of correctional control, It makes sense that criminal justice system reforms are constantly being studied and experimented with. Incarcerating more people than any other country does not seem to be working. What will it take to make a real difference? 

Changes are Needed

Revision of policies and practices is sorely needed, as it seems all of the get tough on crime bombast has only led to the current problem of over-incarceration in this country. What changes are we seeing in various states across America? 

Addressing Racial Disparity

Racial disparity in the criminal justice system is a harsh reality.  Consider Black people alone: though they comprise just over 13% of the population, they are involved in over 20% of fatal shootings by police, nearly half of the wrongful convictions that are later exonerated, and they make up over one-third of all executions as a result of the death penalty. In California, they are addressing the problem with the Racial Justice Act for All measure, which gives individuals who have received judgments or convictions earlier than 2021 to seek relief if there is proof of racial bias in their case.

Drug Policy Reforms 

In Kentucky, people who have been charged with low-level drug activity and are eligible for a new program are having their cases put on hold temporarily while they focus on treatment programs that address substance use disorders or mental health disorders. From there, they are assisted through outpatient services, including housing assistance, vocational training and placement, education, and behavioral or cognitive treatments.

Many states have decriminalized the use of marijuana, which will have a huge impact on the number of incarcerated individuals. States include Maryland, Arkansas, South Dakota, Missouri, and North Dakota; Colorado decriminalized some psychedelics, only the second state to take such action after Oregon did so in 2020.

Youth Protections

The age for detention in Maryland inched up to 13 in all but exceptional cases, and incarceration for youth offenders has been eliminated as a penalty for the majority of misdemeanors—excluding gun violations– and for straightforward probation violations.  Maryland also opened more passageways so a greater portion of the youth who are convicted of nonviolent offenses can participate in diversion programs. In Indiana, children under age 12 can no longer be detained; instead, they can take advantage of other interventions directed toward younger offenders. Life sentences for young offenders have been eliminated in Tennessee, and Wyoming is focusing on collecting and standardizing all information related to the juvenile justice program in order to better track offenders and their success or lack thereof.

California’s Reform Measures

California is taking the lead in some important reforms, as well.  Senate Bill 731 is one critical piece of legislation that was recently signed into law. It permanently seals virtually all convictions if an individual completes their sentence and stays out of trouble for an additional four years. Other important changes to California law include:

  • The end of sentences with mandatory minimums associated with non-violent drug crimes;
  • Limits to gang enhancement laws;
  • The availability of good behavior credits for individuals in mental health treatment facilities;
  • Retroactive repeal of sentence enhancements in certain situations hat had previously been excluded.

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A reportedly upstanding member of the community swears they saw you commit a crime. How can you possibly defend yourself against an eyewitness account? Of course, any criminal charge is serious business; eyewitness testimony against you is never a good thing. The fact is, however, that eyewitness testimony may not be as iron-clad as you would imagine. A good defense attorney knows that there is a lot of research repudiating the trustworthiness of such testimony. 

Can Eyewitness Testimony be Trusted?

Multiple studies over recent decades have revealed that the accuracy of eyewitness testimony in criminal trials leaves a lot to be desired. Regardless of how confident a given witness is, mistakes occur; it is just the nature of memory in human beings. Moreover, visual perceptions, when combined with memory, combine to make this type of testimony one of the very least reliable!  The truth is that a significant number of wrongful convictions—proven to be erroneous through DNA and other evidence after the fact—were based primarily on eyewitness testimony. In one study, researchers discovered that over 70% of overturned convictions were originally based on eyewitness testimony, and in over 30% of those cases, there were multiple eyewitnesses whose testimony was demonstrably wrong.

Problems With  Memory

Some may believe that memory is similar to a video recording, but this analogy could not be further from the truth. Remembering, according to renowned researchers, is more analogous to putting the pieces of a puzzle together. As a witness is questioned by law enforcement or attorneys, pieces of actual memories may be inadvertently conflated to match the questioner’s words and information, leading to inaccurate recollections. Myriad other factors can impact memory, including:

  • Minimal time frames in which to witness a crime;
  • A witness’s anxiety during the criminal event or when endeavoring to identify someone;
  • Disguises used by criminals;
  • Weapons wielded at the scene that distracted witnesses;
  • A lack of distinctive visual characteristics in the perpetrator;
  • Inadequate viewing time during the identification process.

The Loftus Study

One study examined memory errors and the conviction with which subjects held to their flawed recollections. For this research. subjects were told three true accounts and one false one about events that had occurred earlier in their lives. Relatives of the subjects provided particulars for the false story in order to make it more credible. About one-third of subjects believed the false event had actually transpired, despite it being wholly fictitious. These individuals honestly believed that they remembered an event that had never actually occurred. Continue reading

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The best thing that you can do after you are arrested for a crime is to get yourself armed with the most talented and experienced criminal defense attorney near you. For residents of San Diego, the San Diego criminal defense attorney David M. Boertje has been committed to helping people who are charged with crimes obtain successful results such as the dismissal of a case, securing a not guilty verdict, having the sentence reduced, or negotiating the most advantageous plea bargain.

What are Your Rights and Options After You are Convicted of a Crime?

There is only one word that anyone who is facing criminal charges dreads hearing. The word is ‘guilty.’ Depending on the sentence you are facing for a guilty verdict, the rest of your life may be affected and any prospects of a positive future in limbo. It can feel overwhelming and even sickening if the jury agrees that you are guilty of the crimes with which you have been charged.

The good news is that there are legal avenues that may apply to you and could lessen the impact of a guilty verdict. A seasoned and savvy San Diego criminal defense lawyer will be able to identify these and fight for the best solution for your situation.

When a guilty verdict is handed down, you will enter into the sentencing phase of your trial. Your attorney may argue on your behalf to make the case that you should have the lightest sentence available. Still, there are other legal methods that could be available to help you change the direction of your case. These include:

  • Expungement: After you have served your time and completed the terms of your sentence it may be a possibility to have your criminal conviction removed from your record through expungement.
  • Motion to Withdraw a Guilty Plea or a New Trial: These motions may be able to put your conviction on the back burner.
  • Modification of Sentence: When probation results from a conviction, there will be established terms that you must follow to stay on probation and out of jail. Your attorney may be able to argue in your favor, for an adjustment of those terms.
  • Appeal: When errors were made during your trial, it may be possible to appeal the guilty verdict you received. If a successful appeal takes place you could change the course of your life by overturning your conviction.

The bottom line is that a guilty verdict does not always mean that your case is done and you are out of options. There may be ways to respond and rework the outcome.  Continue reading

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A 24-year-old woman was seriously injured when she was hit by a flying object while walking to her car in Carmel Valley. According to authorities, the incident took place in the parking lot located at 12600 Torrey Bluff Drive at approximately 9:45 p.m. The woman was with friends when a dark-colored SUV drove past and a person in the car threw an object out of an open window, striking the woman. She was hit in the eye and her injuries were so severe that she reportedly sustained permanent orbital-bone damage.

 

Now, investigators are asking the community to help identify the person who threw the object. If found, the individual will be facing felony battery charges. Currently, there is no description of the individual. Using surveillance footage from around the area where the attack happened, the authorities are trying to look for clues as to who did it. They are not getting much help because they have yet to find video documentation of the incident. The San Diego Police Department does believe that the assault was unprovoked. 

 

Anyone who has information on the incident has been asked to call San Diego Country Crimes Stoppers or to go online and provide their feedback. All contact with the agency is anonymous, and an individual with helpful information may be eligible for a monetary award of as much as $1,000.

 

What is the Orbital-bone of the Eye?

 

The cup-shaped bone that encapsulates your eye is what makes up the eye socket. The structure of the eye socket is shaped by seven different bones. The bones protect the eye and give it a place to sit within the face. Muscles for eye movement, tear glands, nerves, blood vessels, and ligaments are also held within the eye socket. When the eye socket sustains an injury like a fracture, 28% of these cases will result in damage to the eye and some amount of vision impairment.

 

All of the seven bones are vulnerable to being fractured, or only a few may be damaged depending on the details of an accident. The type of fracture that results will then be classified into one of three categories based on how the fracture took place and how the bones respond to the impact. When a person sustains an eye fracture, the victim may experience any of the following symptoms:

 

  • Reduced vision
  • Seeing double
  • Swelling
  • Pain
  • Bruising 
  • Bleeding around the eye
  • An eye that tears up
  • Nausea
  • Vomiting
  • Sunken eye or a protruding eye
  • Loss of eye movement

 

For some eye fractures, surgery will be required. In other cases, surgery is unnecessary and the injury can heal with time. 

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Three people ignoring California’s stay-at-home order and violating the beach closures were arrested. According to Lt., Amber Baggs of the San Diego Country Sheriff’s Department, the three individuals were participating in a rally held at Moonlight Beach. 

When authorities encountered people walking along the beach they told them about the county public health order. While the deputies were explaining the situation, the individuals who were violating the order just sat down. The deputies provided the protestors with multiple opportunities to comply but they refused and as a result, were put under arrest.

Others in the group of protestors broke apart and headed toward Swami’s Beach Park where they eventually left the area and were not subject to legal action by the authorities. The protest was organized by Crista Anne Curtis, and she called the event “The Surf’s Up Shred the Tidal Wave of Tyranny” protest. This was the second event that Curtis organized. 

In addition to this beach protest, there was another one planned at the Pacific Beach lifeguard station by a different activist. Naomi Soria, who had previously organized a similar march in downtown San Diego, used social media to get the word out about the event. She called her planned beach protest “A Day of Liberty San Diego Freedom Rally.”

Effective March 19, Governor Gavin Newsom’s Executive Order N-33-20 declared a state of emergency in California and directed all Californians to stay at home. Soria is looking at charges brought forth by the San Diego Police Department to the city attorney’s office for violating Code 8665.

What is Code 8665?

Code 8665 states that if an individual willfully disobeys any provisions or lawful orders and regulations by the state they will be guilty of a misdemeanor. If convicted of the misdemeanor charges, they will be fined up to $1,000, or they may be sent to prison for up to six months. In some situations, they can face both the fine and imprisonment.

The First Amendment of the U.S. Constitution guarantees all Americans freedom of religion, speech, freedom of the press, the right to assembly, and the right to petition the government. The public health order infringes on the right to assembly, but there are many legal minds that believe the courts would side with the public health order. The government has vast, and expansive powers during a public health crisis.

While others say there is a significant difference between requiring an infected person to be quarantined versus wide-spread demands that healthy, low-risk individuals also essentially be quarantined. Mass lockdowns encroaches on American’s most fundamental rights as well as the freedom to move and travel. 

Have You Been Charged With a Misdemeanor in San Diego?

Since all of California is still under the stay-at-home order, it is becoming more and more common for residents of the state to want their freedoms back. Incidents were stepping out to enjoy the beach or to congregate in large groups is being monitored by the authorities and threats of arrest or actual detentions are on the rise. If you have been arrested for violation of Code 8665, contact the Law Offices of David M. Boertje immediately. Continue reading

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Individuals arrested for driving under the influence (DUI) in California are now required to have an ignition interlock device (IID) installed in their motor vehicle after arrest. Effective January 1, 2019, an individual facing DUI charges will be able to maintain unlimited driving privileges while their regular license is suspended so long as the IID is installed in this or her motor vehicle.

Changes to the Vehicle Code

Senate Bill § 1046, signed into law by former Governor Jerry Brown, amends the Vehicle Code to require individuals convicted of DUI to install an IID on their vehicle for at least six months following their conviction.

What is an IID?

According to California’s Department of Motor Vehicles, an IID is about the size of a cell phone and is connected or wired to your vehicle’s ignition. The IID requires a breath sample before the engine will start. If the device detects alcohol on the driver’s breath, the engine will not start. The results of the failed test are also sent to the court, including the probation or parole officers assigned to your case, triggering a violation of a bail, probation, or parole condition. You will be asked to pull over and stop driving while you conduct a repeat test to make sure there is no alcohol in your system.

Duration of IID in Vehicle Depends on Conviction Record

The general rule is, if it is your first DUI conviction and no passenger or pedestrian got hurt, you may be offered the option to choose between installing an IID for six months with full driving privileges or not installing an IID but having a restricted (or suspended) license for one year. If a passenger or pedestrian gets hurt because you were driving under the influence, you will be required to install an IID in your vehicle for six months.

Repeat offenders will need to install and maintain an IID for more time. Second DUI conviction will require you to install an IID for one year. A third DUI conviction will require you to install an IID for two years. A fourth or subsequent DUI conviction will require an IID installation for three or more years. Continue reading

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In the latest of the terrifying bills that have come out of our current Congress, Republicans in the House and Senate recently introduced two companion bills they are calling the Back the Blue Act of 2017, to keep up with the Trump Administration’s rhetoric of “law and order.” S.1134 was introduced by John Cornyn (R-Tex.), and is co-sponsored by 15 senators, all Republicans.  H.R.2437 as introduced by Ted Poe (R-Tex.), and includes five co-sponsors, also all Republicans.

What the Bills do

The bills would create a new category of federal crimes for killing or attempting to kill a state or local law enforcement officer who works for a police agency that receives federal funding. It in effect treats all local police agencies as federal agencies because nearly all police agencies already receive some sort of federal funding. The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they have exhausted their appeals.

The bill would also make it a federal crime to “assault” any police officer, bringing a federal mandatory prison sentence of two to 10 years.

Additionally, the bills would allow a district attorney to overrule local officials if he or she did not like the way those officials were handling a case involving a police death. As it stands, the language of the proposed legislation explicitly authorizes federal prosecutions in cases where  “the verdict or sentence obtained pursuant to State charges left demonstratively un-vindicated the Federal interest in eradicating bias-motivated violence.”

Qualified Immunity

It has always been the case that police actions are covered under qualified immunity, which means that in order for a victim’s lawsuit to proceed, the plaintiff in a civil rights lawsuit must show that not only were his or her rights violated, but also that a reasonable police officer should have known that the actions in question were a violation of the Constitution (essentially that the police intentionally violated his or her rights).

Under the language of this proposed bill, police would only be liable for out-of-pocket expenses and not statutory punitive damages, such as in instances of Section 1983 lawsuits under the Civil Rights Act. Lastly, the bills would bar plaintiffs from recovering attorneys fees under Section 1988 of the Civil Rights Act.

The bills are being opposed by civil rights and accountability groups nation-wide. Continue reading

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It was recently reported that Rep. Duncan Hunter (R-Alpine) is currently under criminal investigation by the federal Department of Justice for allegedly misspending tens of thousands in campaign funds. According to a report by the Office of Congressional Ethics, Rep. Hunter may have appropriated the money from his congressional campaign committee for personal use to pay for family travel, tuition, jewelry, groceries, and other personal expenses. The Committee on Ethics then deferred its investigation at the request of the Justice Department.

At a town hall in Ramona, California, Hunter was asked about his alleged personal use of campaign funds. In response, the congressman said his campaign had made a “mistake” and that the funds had been paid back. He has reimbursed his campaign fund approximately $62,000.

As of March 23rd, Hunter has been under criminal investigation by the Department of Justice/ Federal Bureau of Investigation for the misspending. Federal election officials and the San Diego Union-Tribune have repeatedly raised questions over the last year about his unusual spending.  These spending issues reach back over a year, when the Federal Election Commission (FEC) first questioned Hunter for using campaign funds to pay for video games on 68 occasions.

The Citizens for Responsibility and Ethics in Washington, the group that filed the original ethics complaint against Hunter, said in a statement that “Hunter has shown a blatant disregard for the rules.” The FBI has looked at the financial dealings of more than a half dozen House members in the last decade.

Federal Campaign Rules

Political action committees or campaign committees are organized for the purpose of raising and spending money to elect and defeat candidates. They must register with the FEC within 10 days of formation and abide by disclosure rules and federal limits on contributions. Candidates are not allowed use the funds in these committees for personal use.

California Campaign Rules

California’s Political Reform Act was adopted as a statewide initiative (Proposition 9) by an overwhelming vote in 1974. The state has been a leader in promoting transparency in elections since. The law requires candidates and committees to file campaign statements disclosing contributions received and expenditures made. These documents are public and can be audited by the Fair Political Practices Commission  and Franchise Tax Board. However, the law only applies to state and local elections, and not federal (ie. Congressional ones).

Additionally many cities have adopted local ordinances on the city level that may also have additional regulations and restrictions. Continue reading

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Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

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Phone: (619) 229-1870Fax: (760) 230-5888Toll Free: (888) 476-0901Email: dboertje@boertjelaw.com
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