San Diego Criminal Lawyers Blog

May 27, 2022

What Factors Affect Witness Credibility in a Criminal Case?

When the prosecution is making their case against a defendant who is charged with various crimes, they may make use of witness testimony as part of their strategy. Some witnesses can be extremely credible and make it an uphill challenge for the defense to overcome. Other times, the believability of a witness can be questioned, and a talented criminal defense lawyer will know how and where to find inconsistencies to potentially make their testimony less impactful on the defendant’s case.

When you have been arrested for a crime in San Diego or the surrounding areas, the best way to go about combating such charges is to do so with effective and competent legal counsel. For the majority of his professional life, the San Diego criminal defense attorney David M. Boertje has been representing aggrieved individuals accused of crimes and fighting to secure the best possible outcomes for them. When a case goes to court, getting a “not guilty” verdict is always the goal. But, when this does not seem likely, having charges reduced or negotiating a fair plea agreement could be appropriate alternatives.

When is a Witness’s Testimony Credible?

Ultimately, credibility comes down to what the jurors believe when they hear a witness speak. During a trial, witness statements can be quite powerful for either the prosecution or the defense. Yet, not every witness called is going to deliver a compelling story that sways the jurors to believe in their credibility.

The way that a witness comes off, their personality, the consistency of their statements, their background, if they have a criminal past, their connection to the case, and more can all go into what makes up a trustworthy witness or one who is suspect.

Some key factors that go into the credibility of a witness include:

Can the witness benefit financially from the outcome of the case?
Does the witness exhibit, or can be shown to have any type of bias or prejudice?
Does the witness have certain disabilities or limitations that may have hampered their ability to fully hear or see an event?
Does the witness have a drug or alcohol problem and did they have either in their system at the time they claim they heard or saw something?
Do they have a clear and consistent memory of the events that took place or do they often struggle to remember what happened when questioned?
Is the witness’s behavior consistent with truth telling?
Has the witness said different things at different times about an event in question?

Even if a witness is completely honest, there is no way to tell how each juror will interpret what they say. This is especially true because to some extent, people all have varying amounts of different subconscious biases. For example, it could be that one juror may not be as trustful of men with blue eyes and blonde hair simply because of an experience they had with someone of the same characteristics in their past. Continue reading

May 20, 2022

Can Parents be Charged With Kidnapping Their Children in California?

by David M. Boertje

When two parents are responsible, loving, and protective of their children, whether they are together as a couple or separated, it is reasonable to say having each person in the child’s life greatly benefits the child. For most parents, the thought of having their child abducted can be sickening and immensely upsetting. Typically, when one thinks of child abduction, one imagines a malicious type of stranger grabbing a child and running away. While this does happen, the majority of child abductions are perpetrated by parents.

As high as 78% of all missing children reports happen when one parent unlawfully takes their child. In these instances, it is generally a parent who has an established custody arrangement and fails to follow it. Out of all of these situations, the leading reason why parents who violate their child custody agreement do so is that they want the agreement to change or be modified. Then, for more than 20% of the missing child reports, it is not either parent that abducts the child but rather another family member like a grandparent.

What Happens When a Parent Unlawfully Takes Their Child in California?

The good news is, in many instances when a parent unlawfully takes their child, the child usually is not in danger and will likely be returned home without much fanfare.

If a parent acts in an egregious way by taking their child and fleeing the state, being unresponsive, and keeping the child in an unknown location for a long period of time, then they may be charged with parental kidnapping. Also, if one parent refuses to abide by child custody guidelines and denies the other parent access to their child, parental kidnapping charges may apply here too.

The criminal charges of parental kidnapping can be either a felony or a misdemeanor because this type of crime is what is considered a wobbler.

Misdemeanor parental kidnapping charges in California can come with punishments including:

$1,000 fine
One year in county jail

Felony parental kidnapping charges in California can come with punishments including:

Three years or less in state prison
$10,000 or less in fines

There are several aspects of a potential kidnapping case that a prosecutor will examine when it comes to determining the right charge to apply. The child’s safety and well-being are one of the top considerations. If there is any belief that the child was in danger at any time while they were with the parent who allegedly kidnapped them, it is highly likely that the prosecution will favor a felony charge over a misdemeanor. In this case, having a San Diego felony defense attorney is the best option for overcoming one’s charges.

Even if the crime is determined to be a misdemeanor, a conviction can result in the parent who kidnapped their child losing any unsupervised access they previously had to their child. Continue reading

May 11, 2022

Is Prostitution Legal in California?

by David M. Boertje

Sex work can be a bit of a gray area in terms of legality. The big difference between, say, being an escort and engaging in prostitution, is payment for sex. What may start out as a legal arrangement could become illegal should money be exchanged for sex. Conviction for a prostitution crime can come with punishments including up to $1,000 in fines and jail time.

If you were charged with a solicitation or prostitution violation, there are legal defenses available to you. The prosecutor on your case must prove beyond a reasonable doubt that you had the intent to participate in a sex act, entered an agreement to the terms of how the sex act would be compensated, and then engaged in the sex act. For solicitation charges, though, a sexual act does not even have to happen.

To protect your best interests after an arrest, consider connecting with an experienced San Diego prostitution defense attorney at the Law Offices of Davide M. Boertje to have your situation professionally evaluated.

The Legality of California’s Sex Industry

Prostitution charges or solicitation charges can be devastating to your reputation and could result in issues within your career and/or your home and personal life. The stigma of such charges alone can cause irreparable harm in one’s life. Fighting such charges with convincing and persuasive arguments may help you avoid criminal penalties and go a long way toward clearing your name.

Prostitution occurs when there is intent to engage in a sexual act and there is a financial transaction to pay for it. Prostitution is illegal in California. Soliciting another person for a sex act and offering to pay for it is also illegal in California.

An escort is a person who provides non-sexual companionship and is paid for those services. Hiring an escort is legal in the state of California, but there are guidelines. The police department must issue a California escort worker with a valid permit to operate. Without one, a person calling themselves an escort would be doing so unlawfully.

One can legally engage in a sexual act with a licensed escort. This is true as long as there was no exchange of compensation and both parties consented to the act. It becomes unlawful when any lewd or sexual act takes place and a fee is paid for the act.

Think about this scenario: You want to hit the town and try a new restaurant, but your friends are all busy. Perhaps you hire an escort to accompany you so you do not have to go alone. If you are hiring a licensed escort from a reputable agency, this is a legal practice in the state of California. Though should some type of sexual activity occur between you and the escort you hired, and payment is made, then this would be considered a crime. Continue reading

May 6, 2022

What are the Penalties for Forgery in California?

by David M. Boertje

Under the law, you cannot pretend to be someone that you are not. If you try to falsely represent yourself as another person, this could lead to significant criminal penalties. California forgery charges are strict, and depending on the details of the crimes, you could be charged with either a misdemeanor or a felony. Time behind bars and steep fines could result. And, if you did not have a criminal history in the past, a forgery conviction will change that quickly. As a result, the rest of your life could be negatively impacted by that criminal record that will follow you around wherever you go, tainting your reputation.

David M. Boertje is a San Diego felony defense attorney who can help you when you have been arrested for a criminal act like forgery. While there are clear examples of forgery, such as taking another person’s check and trying to cash it as if the check were yours, there are also other examples of forgery that may not at first seem like a crime at all.

What is Forgery in California?

California describes forgery as the falsification of documents. Some examples include:

Falsely trying to cash another person’s check.
Rewriting or making adjustments to another person’s will without their consent.
Signature tampering.
Taking another person’s plane ticket and posing as that person to get on a flight.
Trying to claim lottery winnings that are not your own.
Signing a contract with another person’s name.
Filing for a license in another person’s name.
Trying to withdraw more money from your account than you have by cashing a check.
Making fake money and trying to use it to procure goods and services.

California forgery and counterfeiting laws are serious and when you misrepresent yourself and it harms another party, you could be held criminally liable. Your charges may rise to the level of a misdemeanor charge, but they could also be charged as high as a felony offense. The difference between the two has to do with how much money was involved in a forgery event. Should forgery result in costs over $950, then a felony would be applied. If the forgery was less than $950, a misdemeanor would result.

Misdemeanor forgery charges come with penalties including fines and a year in county jail. While a felony charge could mean up to 16 months in state prison or up to three years in county jail. Restitution payments and pricey fines as costly as $10,000 may also be part of a sentence. Continue reading

April 22, 2022

Additional Criminal Charges That Can Come With a California Carjacking Arrest

by David M. Boertje

Carjacking is a crime in the state of California. It is defined, essentially, as one party using force or threats to take another’s automobile. The penalties for a carjacking conviction can be quite serious. As a felony offense, carjacking can come with many years behind bars. One’s sentence could be as high as nine years. This is why it is critical that when you are arrested for carjacking, you have an experienced and tactical attorney on your side protecting your rights and interests.

David M. Boertje is a San Diego theft crime defense lawyer who has extensive experience providing effective criminal legal defense services to individuals charged with various crimes, including carjacking. The outcome of your case will be heavily impacted by the quality of your legal representation. At the Law Offices of David M. Boertje, building persuasive and compelling legal defenses and providing the highest quality legal counsel for individuals who find themselves facing criminal charges is our focus and objective.

Implications of Carjacking in California

When one party uses force or fear to take a motor vehicle that does not belong to them from another party, against the will of that other party, this is considered the criminal act of carjacking. The party attempting to forcefully steal a car from another party does not even have to be successful to face criminal charges. Even an attempt to engage in such conduct can result in an arrest.

Let’s say you open a car door with someone inside. You try to get them out of the car but they are quick enough to put their foot on the gas and evade you. Should an officer see this scenario, you will be arrested for attempted carjacking. Attempted carjacking has its own penalties with respect to the amount of jail time you could face.

Should you be successful with your carjacking attempt and you take off in another party’s car but there is a passenger in that car, you may also be looking at kidnapping charges. The penalties here are even more severe. Under California’s kidnapping laws individuals who are convicted of this crime are looking at a life sentence in state prison with the possibility of parole.

Ultimately, the extent of the punishment will come down to the details of the crime and the judge’s discretion. The best approach in these situations is to work with an attorney who knows the law, how to protect your rights, and the best way to put together a believable defense that can convince a jury to have doubt about your guilt. If your attorney can accomplish this, that is, put uncertainty into the minds of the jury hearing your case, then you may be able to avoid a conviction. Continue reading

April 15, 2022

Understanding Prescription Drugs and Impaired Driving Laws in California

by David M. Boertje

By the third quarter of 2021, there were an estimated 284 million vehicles driving about throughout the United States with 228.2 million licensed drivers. The United States has some of the highest levels of road traffic when compared to other similar developed nations. In terms of states, California has the most licensed drivers. Because of this heavy road traffic, the US also reports more frequent vehicular accidents than its counterparts.

There are many ways a car accident can happen, but speeding, driving under the influence, and distracted driving are some of the most common causes reported. A common misconception is that illegal drunk driving incidents only happen when a driver has alcohol in their system. While driving with a blood alcohol concentration of 0.08% or more is illegal and a frequent occurrence, there are other situations that also constitute driving under the influence.

Can You be Arrested for Driving With Prescription Drugs in Your System?

California drunk driving laws indicate that driving with more than a certain level of alcohol in the system is unlawful, but so is driving with drugs in the system. This is true for illicit substances, over-the-counter medicines, and those that come from a valid prescription.

If the drug or medication you are taking has impairing side effects, even if you only feel the symptoms are minimal, you should avoid driving until the drug is out of your system. If law enforcement pulls you over because they believe that you are driving unsafely or erratically, consistent with someone who is under the influence, they could arrest you if they find you ingested certain medicines.

For example, for nighttime cold medicine, the warning label will often indicate drowsiness is a side effect. Drowsy driving is incredibly dangerous; there are many issues a drowsy driver has operating their automobile that drunk drivers also have. Slower reaction time, inability to stay focused, and struggling to stay awake are just a few.

Another example is if you suffer from chronic pain, your doctor may have provided you with a prescription for narcotics to manage that pain. It is legal to take narcotics that were prescribed to you. But, if the narcotics cause you to feel dizzy, sleepy, affect your vision, or cause other side effects, you are putting both yourself and others in danger of injury or death when you get behind the wheel.

If you have a prescription or over-the-counter drug in your system and you cause a crash or are arrested, the fact that the medicines you took were legal will not be a valid defense to a driving under the influence of a drug charge.

There are some aspects of your arrest that you may be able to use in your defense, however. A San Diego DUI defense attorney will know what aspects of your case can be challenged to give you the best chances of overcoming your charges. Continue reading

April 8, 2022

When is Harassment a Criminal Matter and When is it a Civil Matter in California?

by David M. Boertje

The difference between civil law and criminal law can be confusing at times. In some cases, there can exist both a civil and criminal component to an illegal act. This situation can be true when it comes to harassment. Depending on the details, harassment can be a civil and a criminal matter at the same time.

Civil cases can settle outside of court or go through litigation in court to come to a financial settlement for damages a victim suffered. Civil cases are brought by a person who has been the victim of some type of harm caused by another person’s actions. Criminal cases, by contrast, are brought by the government of a county or state whose purpose is to enforce specific punishments for one’s behavior. Depending on what the criminal charges are, the consequences can be strict.

In both civil and criminal cases, working with legal representation is advisable to improve the chances that you will secure the best possible outcome. In California, David M. Boertje is an experienced San Diego criminal defense attorney that can help you if you are facing criminal charges.

How Can Harassment be a Civil and a Criminal Issue?

For the purposes of this article, we will focus on charges of harassment in California. California recognizes civil harassment as behavior that:

Includes unlawful violence such as assault.
A real and believable threat that violence may happen.
There is no reason for the unlawful violence or threats that are frightening and causing an individual to experience feelings of distress.

A victim of civil harassment can file a lawsuit against the party causing their troubles. If they are successful with their claim, they can obtain financial compensation. In some cases, they may also be able to have a restraining order issued.

When a person is criminally charged with harassment, it is because the level of harassment they are inflicting on another person is elevated. It is willful and pernicious and it is happening regularly on a recurring basis. The behavior is also causing victims great fear regarding their safety.

Criminal punishments for harassment in California can include expensive fines and jail time in either a county or state facility. It is best for individuals charged with criminal harassment to connect with qualified legal counsel. These charges are very serious and can come with harsh punishments. An attorney will know how to form a strategic defense against the most severe penalties.

Jail time and fines are difficult enough to manage. Even after you have paid your fines and served your time, you may still struggle to achieve various goals in your life because you now have a criminal record. This is why it is crucial that you position yourself to obtain the most favorable outcome. Continue reading

April 1, 2022

What to Do if You are the Victim of Mistaken Identity

by David M. Boertje

Being arrested for a crime is a distressing situation for anyone. This is particularly true if the crime you have been arrested for is one you did not commit and you were the victim of mistaken identity. There are several examples of innocent people who have been arrested and convicted of crimes that they did not carry out. According to the Innocence Project, of all the wrongful convictions that happen across the country, mistaken identity is the leading cause of these injustices taking place.

After an arrest, it is recommended to get in touch with an experienced and seasoned attorney to have your rights protected. In San Diego, David M. Boertje is a San Diego criminal defense attorney who has your best interests in mind and can provide effective legal representation to help you secure the most favorable outcome for your case.

How Can You Fight Mistaken Identity?

Mistaken identity is responsible for approximately 70% of wrongful convictions. There are several ways that mistaken identity situations can arise.

Errors Made by Police

If the police suspect you are responsible for committing a crime they are going to question you. In doing so, they may employ various tactics to get you to say things that are self-incriminating. Or, the police may use similar methods when they speak to witnesses that motivate those individuals to make false testimony against you.

Errors Made by Eyewitnesses

In the absence of provocation by law enforcement, a person who was a witness to a crime can still make mistakes. This could happen from personal bias or from other issues with memory related to the event.

If you have been wrongly identified as the individual that committed a crime, it is important to get to work on building your defense and finding evidence that shows you were uninvolved with the incident in question. The good news is that there are a couple of things that your San Diego criminal defense attorney can look into to help you overcome your charges.

Once the 1990s began the technology available to forensic investigators made identification much more accurate. DNA testing can be a powerful tool to help those who are wrongly accused prove their innocence. This is one approach to fighting against mistaken identity.

Another useful defense is if you have a solid alibi, meaning that if you can prove you were somewhere other than the location of the crime scene when the incident took place, this can show that you were not the perpetrator of the crime. Continue reading

March 18, 2022

Four Actions You Can Take After a Conviction

by David M. Boertje

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

March 11, 2022

Is California Rape Victims’ DNA Being Used to Investigate Other Crimes?

by David M. Boertje

According to Chesa Boudin, San Francisco’s District Attorney, the DNA taken from sexual assault survivors is being used to help investigations into other crimes that are not even related to the sexual assault victim. One example was a woman who was found and charged with a felony property crime who was the victim of a rape in 2016. In this case, the DNA from the woman from her rape examination was used as evidence against her in her felony case.

Supposedly, the San Francisco DA’s office has said that this was not an isolated case where the practice was used. Instead, it was the standard operating procedure. If these claims are true, this raises serious legal questions about how the government is collecting and using DNA.

How Has the San Francisco Police Responded to the Allegations?

San Francisco’s Police Chief, Bill Scott, appears to be engaging in a proactive response to the allegations. According to SFPD Chief Scott, there will be an investigation. If the investigation shows that the DNA of victims is a tool that is being used to find answers to other crimes, then the practice will stop.

DNA is an incredibly powerful tool to locate potential lawbreakers and convict them of their charges in California and across the rest of the United States. Because of this, police departments far and wide collect DNA and catalog it as a resource when they are looking for criminals.

California DNA collection laws allow police department crime labs to be able to establish their own databases which are not linked to those that the federal and state government have. These labs can analyze their samples without any oversight and regulation.

One of the primary concerns of this practice is the potential negative effects it will have on victims. Meaning, that if a person is victimized by a crime, they may be less inclined to come forward and report what happened to them out of fear that their DNA could be used against them in the future.

Whether this practice is standard or not is still being adjudicated. But many police departments around the country have come forward to deny that these practices are widely used in criminal investigations. In other words, a victim’s DNA is never used as a means to investigate other crimes.

If you were charged with a crime in San Diego, it is imperative that you have legal counsel on your side that is experienced and skilled to secure the best outcome possible for your case. One way your San Diego criminal defense attorney may be able to dismantle the prosecution’s argument against you is to show that evidence used was illegally obtained and therefore needs to be thrown out. When this happens, a case can be dismissed regardless of its strength. Continue reading