David M. Boertje

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Many states have old, outdated laws in existence. Unfortunately, the laws make no sense and do not coincide with society in 2019. This is why early this September, Governor Newsom signed a bill that no longer makes it a misdemeanor for citizens to refuse to help the police. The law is an outdated one from the days of the Wild West and is known as the California Posse Comitatus Act of 1872.

What is the California Posse Comitatus Act of 1872?

Although you may have not heard of the law, the California Posse Comitatus Act of 1872 made it a crime, specifically a misdemeanor, for an able-bodied person over the age of 18 to refuse to assist the police in making arrests or taking people into custody. The elements of the law are:

  • Person must be 18 years of age or older
  • Person must be able-bodied – meaning no physical ailments or disabilities
  •  Police must request assistance on demand

The law dates back to the Wild West days when cowboys and outlaws, or fugitives and bandits wandered around the State of California.

The law allowed for citizens to receive a misdemeanor charge along with a fine of up to $1,000 for refusing or failing to help police make arrests or catch suspects, when the police request the help on demand.

How Was the Law Found?

According to an article in CNN, the interns of Senator Hertzberg found the old law. They were tasked with identifying old laws in the books. When they found this law was still in existence, Senator Hertzberg introduced State Senate Bill 192 to remove the law.

Had the Law Been Used Recently?

Unfortunately, yes.

Law enforcement made an attempt to use it to its benefit recently. According to a report by the Sacramento Bee, the law was referred to in 2014 when a sheriff’s office used posse comitatus as a defense in a lawsuit filed against them for an allegation by a man and woman saying they were deceived into responding to a 911 call by the sheriff’s office.

What Does ‘Posse Comitatus’ Mean?

Black’s Law Dictionary defines posse comitatus as the power or force of the county. The term is Latin, much like many legal terms. While the term also applies to a U.S. federal law, 18 U.S.C. Section 1385, the federal law reserves itself to the use of military personnel. Continue reading

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When you are under arrest by the police, your first thought might be, “Will I go to jail?” If you do go to jail, then your first thought might be, “How can I get out of here?” One way you can get out of jail is to post bail with the law enforcement agency that has you in custody. Your experienced criminal defense attorney can provide bail assistance by working to get the bail reduced.

Three Ways to Get Released from Jail

There are three ways for defendants to get released from jail – bail, cash bail, and on their own recognizance (OR). Although this article’s primary focus is the bail option, you should be aware of the other two options. These options are:

  • Cash bail – paying the full amount of bail in cash
  •  O.R. – your own recognizance

How Does Bail Work in San Diego?

Depending upon the severity of the crime you are accused of, the bail amount will be a high amount or low amount. When a person is put in jail, the bail is set at a monetary value. For instance, the bail for a DUI causing injury, according to the San Diego County Court Bail Schedule, is $20,000. For murder, there is no bail. 

Hearing the bail amounts can be confusing to people. Some family members are unable to pay the bail amount, which leaves their loved ones sitting in jail, for even a simple misdemeanor.

The way bail works is that the bail will be set at a certain amount, but through the use of a bail bondsman or bail company, only 10% of the bail is necessary to get out of jail.

Example of How Bail Works

The way bail works is serious business. Imagine that your bail is set at $2,000. When you hire a bail company, the company will cover the entire $2,000, in exchange for a $200 fee. When you show up to all of your court hearings, the company will get their $2,000 back, and still keep your $200. This is how the bail company makes a profit.

If you fail to appear at your court hearings and skip out on the bail that was paid for you, a bounty hunter may be sent to locate you and take you back to jail so they can recover their funds. Continue reading

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E-scooters are a convenient way to get ahead of what may seem like unnecessary traffic in San Diego. E-scooters provide an alternative means of transportation and a source of entertainment for some riders. The rise in popularity of e-scooters in San Diego and other cities across the nation opens the door for a greater possibility of illegal activity such as riding under the influence of alcohol or other substances, which often result in DUI charges.

Law Enforcement Cracking Down on Illegal E-Scooter Activity

Yes, you can receive a DUI for riding an e-scooter under the influence. Law enforcement is taking steps to crack down on illegal activity on e-scooters. In fact, an article in Good Day Sacramento shows that the City of Los Angeles had its first DUI prosecution for a person riding a Bird e-scooter under the influence of alcohol.

The offender knocked over a 64-year-old on a sidewalk. Law enforcement determined that his blood alcohol content level was three times the legal limit, which is 0.08% in California. For his actions, he must complete 36 months of probation and also complete a DUI program.

E-Scooter Riders Must Follow the Law

As we mentioned in a previous article regarding traffic tickets and the new e-scooter regulations, e-scooter laws are enforceable by the San Diego Police Department. This means that as an e-scooter rider, you must follow the laws concerning the operation of the scooter.

The San Diego Municipal Code and California Vehicle Code explain the laws pertaining to scooters.

E-Scooter Incident Statistics

A recent study released by the UC San Diego Health system revealed the following statistics:

  • Approximately 40% of e-scooter injuries involve alcohol
  • 52% of e-scooter users involved in accidents tested positive for drugs
  • 65% of those injured on a e-scooter are men

An article in Consumer Reports shows that there were 1,500 e-scooter injuries in the United States in 2018. For this reason, e-scooter companies like Lime are taking necessary measures to protect riders and pedestrians and prevent incidents such as riding under the influence by developing systems and software to reduce the speed of the e-scooter if a rider is driving recklessly.

What to do if You Receive a DUI While Riding an E-Scooter

If you receive a DUI for riding an e-scooter under the influence, you should discuss the matter with an experienced San Diego Criminal Defense Attorney as soon as possible. It is important to retain the services of an attorney who can help you handle the full range of charges that may arise. Continue reading

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For the police to make an arrest in San Diego, a warrant must accompany them. Discovering you have a warrant can be nerve wracking. You begin to wonder why a warrant was issued against you and what to do to make the warrant go away. Sometimes, but not often, judges issue warrants by mistake. When a judge signs off on a warrant, the warrant will come in the form of an arrest warrant or bench warrant.

What is an Arrest Warrant?

An arrest warrant is the legal document the judge will use to order the police to bring a person to jail under suspicion of a crime. If a police investigation, through testimony or evidence, reveals that someone committed a crime, the police will ask the judge to issue an arrest warrant that authorizes them to make the arrest.

What is a Bench Warrant?

Differing from the arrest warrant, a bench warrant stems directly from the judge for violating court rules. One of the most common reasons why a judge issues a bench warrant is the failure to appear. A bench warrant forces a person to appear before the court or judge, hence the name bench warrant — the judge sits at the bench and the warrant was issued from the bench.

Arrest and Bench Warrant Differences

Below are the major differences between an arrest and bench warrant:

  • The method in which the judge issues the warrants
  • Once the judge issues an arrest warrant, the police will search for the suspect
  • A bench warrant is usually not in connection with a serious crime
  • The warrant that can remain outstanding in the database is the bench warrant

How to Find Out if You Have a Warrant.

One way to find out if you have an arrest warrant in San Diego is to review the Online Warrant Database at San Diego County Sheriff’s Department website. Simply type in your last name, first name, middle name and year of birth to see if your name is in the database.

If your search reveals that you have a warrant, you should locate an experienced San Diego criminal defense attorney immediately. Many people try to handle the warrant on their own and face being placed in police custody. A knowledgeable San Diego criminal lawyer can get the warrant reversed and prevent law enforcement from placing you in police custody. Continue reading

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DNA plays an important role in crime investigations. From collecting fingerprints to hair follicles and swabs of saliva, DNA is the evidence that can make or break a criminal investigation. Today, we will define DNA, show you how DNA is typically used in criminal cases, the new technology surrounding DNA, and discuss whether DNA testing is always accurate. 

What is DNA?

Simply put, DNA is a blueprint or guide of cellular structures that create the genetic makeup of a person and reveal their identity.

How is DNA Used in Criminal Cases?

DNA is used in criminal cases to hold a person accountable for a crime and is typically used in these types of matters: 

According to a report in NBC 7 San Diego News, in violent crimes involving handguns, investigators and analysts are now able to use ammunition or shell casings to obtain DNA and link suspects to crimes.

DNA Technology

DNA is more advanced than it was even five years ago. In fact, DNA is so advanced now that gel is being used to prevent theft crimes. According to an article in Today, more than 5 million thefts occur each year in the United States.

Now a technology company is helping homeowners and renters by offering an anti-theft kit. The anti-theft kit allows homeowners and renters to take matters into their own hands by using gel to protect their property in the event a burglary occurs.

With the rise of thefts in San Diego, because of Proposition 47, we can expect for this gel technology to become more commonly used, especially since over 5,000 police departments have partnered with the DNA technology company.

Is DNA Testing Always Accurate or Reliable?

Of course not.

DNA mishaps is the primary reason why criminal defense attorneys make it a point to challenge DNA to represent their client. Many factors affect DNA testing, including:

  • Contamination.
  • Human error.
  • Chain of custody errors.

Under certain circumstances, DNA can be deemed inadmissible or is not allowed to be used as evidence in a criminal trial, under the California Evidence Code.

With these challenges, an experienced and knowledgeable criminal defense attorney will be able to use the DNA against the prosecution to prove their client’s innocence.  Continue reading

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Vandalism is an act that most people attribute to children. Unfortunately, it is an act that is performed by minors and adults all too often in San Diego. Vandalism is a serious, intolerable crime in California.

What is Vandalism? 

Penal Code 594 PC defines the act of vandalism. California law states that every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law is guilty of vandalism:

  • Defaces with graffiti or other inscribed material.
  • Damages.
  • Destroys.

Examples of Vandalism in San Diego 

An ongoing report of vandalism includes BB gun vandalism where the suspects are firing BB gun pellets causing damage to vehicle windows and store windows in San Diego. 

Another instance of vandalism includes a recent closing of the Allied Gardens Pool, a San Diego city pool, due to someone throwing glass bottles over the fence and shattering the glass in and around the pool of the swim center.

San Diego Police is investigating a hate crime after graffiti included racist language spray-painted on the garage doors of two homes in University City, according to a CBS News story. 

Scooter Tampering is a Crime 

A final example of vandalism includes an article in the San Diego Community Newspaper Group reporting evidence of scooter tampering in Ocean Beach and Pacific Beach. The suspects are cutting brake lines on scooters. 

As of July 24, 2019, San Diego Police Department says there have been no other vandalism reports filed regarding brake tapering. Cutting brake lines on scooters is a crime. The San Diego police states that a misdemeanor or felony will follow depending on the amount of damage caused. 

Penalties for Vandalism in San Diego

The California Penal Code also spells out the penalties for vandalism. The penalties for vandalism depend on the value of the destruction. For example:

  • If the destruction is $400 or more, a person may receive between one and three years in jail and a fine of up to $10,000 or more depending upon the level of damage.
  • If the destruction is less than $400, the person may receive less than a year in a San Diego County jail for the misdemeanor and a fine no more than $1,000.
  • If the destruction is less than $400, with a previous conviction of vandalism or graffiti, the person may receive no more than one year in a county jail and a fine of no more than $5,000. 

Continue reading

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According to the California Department of Forestry and Fire Protection and National Interagency Fire Center, the 2018 wildfire season was the deadliest and most destructive wildfire season in California. While these types of fires are natural disasters, there are times when fires happen on purpose through an act of arson.  

 What is an Act of Arson?

Arson is a criminal act of unlawfully and intentionally setting fire to any property. California law states that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of any structure, forest land, or property.

Examples of Arson

Acts of arson occur each day in San Diego and they are fairly common. Here are two examples of what the act of arson looks like:

  • A San Diego jury finding a transient guilty of murder by arson on July 20, 2019, according to an article by Herald-Mail Media.
  • The Cocos Fire in San Marcos in 2014, where a 14-year-old intentionally started a fire that destroyed 36 homes and caused $10.4 million in damage, according to a report by NBC News.  

Why do People Commit Arson Crimes?

The reasons why people commit arson are often left unexplained. Research suggests that the main reason why people commit arson is to profit. These people are looking to collect on an insurance policy and use the money for their own financial gain. According to a psychologist, anger is also a motivating factor behind arsons, particularly in California.

If I am Arrested for Arson, What Does the Prosecutor Need to Prove?

If you get arrested for suspicion of committing an act of arson in San Diego, contact an experienced San Diego Criminal Defense Attorney with successful results in representing those involved in criminal matters.

It is difficult for the prosecution to prove that someone actually committed an act of arson. Arsons are difficult to prove because they are not obvious as to who or what caused the fire to start —  it could be a lit cigarette, a blown fuse or an electrical issue.

According to Cal Fire, San Diego brush fires are usually caused by accident. Just because someone walks away from or is near the place where a fire originates does not mean the person committed the act of arson. For a prosecutor to get a conviction of arson, he or she must prove not only that the defendant set the property, structure, forest or land on fire, but that the defendant’s act was willful and malicious.

This means that an act of arson must be committed on purpose with the intention of harming someone, injuring someone, or damaging property. Until the prosecution can bring evidence to prove the act, they do not have a case. 

In the Event You are Convicted of Arson, You Must Take This Step

California law, particularly Penal Code Section 457.1(a), requires a person convicted of arson to register with local law enforcement as a registered arson offender for the rest of his or her life. The person must update his or her contact or location records with law enforcement as well. This information is collected in an arson registry database maintained by the San Diego Metro Arson Task Force. Continue reading

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Domestic violence is a problem that occurs far too often in San Diego. According to the San Diego Domestic Violence Council, 17,000 domestic violence incidents are reported to law enforcement in San Diego County each year. When people think of domestic violence, they usually imagine a dispute between a couple. Unfortunately, domestic violence is not an act that solely happens between couples, it happens between families – siblings, cousins, aunts and uncles, even in-laws. Domestic violence not only affects the adults in the situation, domestic violence also negatively impacts the children.

What is Domestic Violence? 

Domestic violence is a violent crime that occurs when a person imposes abuse or harm to another, be it a family member or partner. California Penal Code 13700(b) defines domestic violence as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. 

Abuse means to intentionally or recklessly causing or attempting to cause bodily injury, or placing another in a position to cause serious bodily injury to himself or another person.

Example of Family Domestic Violence Among Family

A perfect example of family domestic is a July 23, 2019, story in NBC 7 News San Diego. The story discusses three adults being charged due to a family fight while at Disneyland. Children were screaming and witnesses helped to break up the fight.

A man is accused of attacking his sister, brother-in-law and girlfriend and endangering children who were with the family. The altercation was seen by several witnesses and bystanders. The man is facing felony counts of domestic battery, assault, criminal threats and child endangerment while the other family members are facing misdemeanor charges.

Handling a Domestic Violence Accusation

If you are being accused of domestic violence, here are some ways you can protect yourself:

  • Gather evidence in your favor. Written statements, text messages, emails, and photos will help to show the status of your relationship with your accuser. If your criminal history is clean, get a report. This way, no one will be able to establish this pattern of behavior.
  •  Maintain your distance.  Avoid contact and communication with your accuser. If you must talk to him or her, take note of any and all communications with the accuser. This means, if you talk to the accuser on the phone, record the conversation. Otherwise, communicate through text message or email.
  • Contact a Criminal Defense Attorney. Do not pursue the accusation alone. Domestic violence accusations are emotional and can take a toll on your well-being. Discuss the accusation with a knowledgeable criminal attorney in your area. The attorney will establish a defense and help you navigate the procedures concerning the case.

Continue reading

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If you are driving along San Diego’s highways, you are familiar with the high-occupancy vehicle (HOV) lanes. These lanes are commonly referred to as carpool lanes or diamond lanes. The purpose of these lanes is to minimize traffic congestion and encourage ridesharing to reduce the rider capacity on San Diego roads.  With the benefit of these lanes, comes rules and regulations. The misuse of these lanes results in traffic violations, meaning punishments such as tickets, fines, and court fees. 

According to a recent NBC News San Diego report, HOV lane violations have tripled over the last three years. For example, in San Diego County alone, there were 4,547 HOV traffic violations in 2017.  

California Law on HOV Lanes

A portion of California Vehicle Code Section 21655.5 (b) states:

A person shall not drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices. A motorcycle, a mass transit vehicle, a blood transport vehicle that is clearly and identifiably marked as such on all sides of the vehicle, or a paratransit vehicle that is clearly and identifiably marked on all sides of the vehicle with the name of the paratransit provider may be operated upon those exclusive or preferential use lanes unless specifically prohibited by a traffic control device.

Can Everyone Use the HOV Lane in San Diego?

Unfortunately, no. According to Caltrans, San Diego reserves HOV lanes during operational hours for the following:

  • Motorcycles
  • Mass Transits (buses)
  • Vehicles with two or more occupants
  • Certain plug-in hybrid, alternative fuel and clean air vehicles (must have red decal issued by DMV)

In San Diego, I-5 San Ysidro requires three or more persons per vehicle.

Who is an Occupant?

Please keep in mind that Caltrans identifies an occupant as any person who occupies a safety restraint device such as a seatbelt. This means that if a dog rides in your vehicle, you will not be able to use the HOV lane.

Other situations where drivers cannot use the HOV lane include the recent ABC News article where a Nevada hearse driver was pulled over for traveling in the HOV lane carrying a body. The driver believed that the body would count as two people. And, a report where Brea Police caught a driver using a mannequin to drive in the HOV lane a few years ago.

HOV Traffic Violation Punishments

If you violate the California Vehicle Code by driving illegally in the HOV or carpool lane, the violation can be costly. You may receive a traffic ticket and face the following punishments:

  • Fines – minimum of $490
  • Points on your driver’s license
  • Increase in car insurance premiums

If you are a repeat offender, the fines could be much higher.

Let a San Diego Criminal Defense Attorney Help with Your HOV Traffic Ticket

While there is no obligation to hire a criminal defense attorney to help with your ticket, if you receive a ticket for an HOV violation, you should discuss your case with an attorney and discover your options. An attorney may be able to help get your ticket dismissed, get the fines reduced, or make it possible for you to do community service or traffic school in order as an alternative. Continue reading

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A shoplifting charge is a serious crime in California, whether it is your first offense or your fifth. Now that you and your friend are facing shoplifting charges, you probably think you will get off without any trouble since it is your first time. This is not true. And as a result, you attempt to handle the petty theft charge on your own. 

Without a criminal defense attorney providing representation for you, you place limits on your options – meaning the court is less likely to listen to your side of the story, and you may receive unfair treatment as you go through the criminal process.

If you and your friend are facing charges for a petty theft crime, you should immediately hire a criminal defense attorney who is experienced in shoplifting and petty theft.

What Exactly is Shoplifting? 

California law describes shoplifting as a theft by larceny. This happens when you take someone’s else’s property, without their permission, with the intention of permanently depriving them.

Below are some examples of shoplifting:

  • The San Diego shoplifting ring in which 22 people were stealing more than $20 million in merchandise from U.S. high-end malls to sell the items in Mexico.
  •  A KTLA news report showing California women stealing laundry detergent and toiletries at Dollar General, and being confronted by a store employee.

How can the Prosecutor Prove My Shoplifting Charge?

To prove shoplifting, under California law, the prosecutor must establish the following elements:

  • You took possession of property owned by someone else;
  • You entered a commercial establishment with intent to commit the crime;
  • The establishment is open during regular business hours; and
  • The value of the property stolen is more than $950

Penalties for Shoplifting

Shoplifting is a misdemeanor charge. According to California Penal Code Section 490.5, the misdemeanor results in the following penalties:

  • Three years of informal probation
  • Six months or less in a county jail
  • A fine up to $1000

First-Time Offender Programs

Since you and your friend are first-time offenders, you may qualify for the California petty theft diversion program, or your attorney may be able to get your charge reduced. 

The diversion program is a program that allows an offender to avoid punishment for the alleged crime, upon successful completion of the program. The program may take six months or longer to complete and may include:

  • Counseling
  • Community service
  • Behavior modification
  • Classes

The program is a great alternative for you and your friend to look into with your attorney. Eligibility depends on your age and prior criminal record.

New California Diversion Program Allows Victims to Confront Offenders

KUSI News reports that state officials are experimenting with a new diversion program that allows victims to confront offenders. The program will pair victims and offenders before they are convicted, and offenders who complete the program can avoid having a criminal record.

The state-funded program is targeting offenders who do not have extensive criminal histories, but who have committed serious crimes. This is important for you to know just in case you are a part of the new diversion program. Continue reading