David M. Boertje

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According to The Sentencing Project, private prisons nationwide held 128,063 people in 2016. This number represents 8.5% of the federal prison population. Since the beginning of this decade, the private prison population increased 47%. On September 11, 2019, a new law made California the first state to end its use of for-profit, private prisons and detention facilities. This ban on private prisons will change the issue of mass incarceration and influence the criminal justice system and the criminal process overall.

Assembly Bill 32 (AB 32) Bans Private Prisons

Assembly Bill 32 was passed on September 11, 2019, by the California State Legislature and signed by Governor Newsom on October 11, 2019. It has been added to the California Penal Code, and bans the use of private, for-profit prisons and detention facilities.

The law prohibits the Department of Corrections from entering into contracts, on or after January 1, 2020, with private facilities in state or out of state. The same law applies for the renewal of existing contracts. 

By January 2028, all contracts will be phased out and the State of California can no longer hold inmates in any private prison or detention facility.

The Impact of the AB 32

An article in CBS News reveals that AB 32 impacts over 1,400 inmates and 4,000 detainees that are currently housed in private prisons and detention facilities.

The Law Does Not Apply to Certain Facilities

It is important to note that the new law comes with exceptions mentioned in Section 9502. The law does not apply to any of the following facilities:

  • Rehab, counseling, mental health, educational facilities
  • Residential care facilities
  • Evaluation or treatment facilities
  • Vocational or medical facilities
  • School facilities used for disciplinary detention
  • Facilities used for quarantine or isolation for public health reasons
  • Temporary detention facilities

Additionally, the law does not apply to private facilities operating with a valid contract with a governmental entity that was in effect prior to January 1, 2020.

For a list of additional exceptions and to read the bill in its entirety, you are invited to review Assembly Bill 32 on the California Legislature website.

California and its Criminal Justice Reform Measures

NBC San Diego reports that the State of California’s inmate population has been declining due to measures to ease criminal sentences. According to the report, the inmate private prison population consists of less than 1% of the 125,000 inmate population. Continue reading

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A criminal record is a blemish on a person’s life. This blemish can keep a person from obtaining normal aspects of life such as a job or a lease on an apartment. There is one step a person can take to wipe the slate clean and get a fresh start on life. This step is called a record expungement.

What is a Record Expungement?

A record expungement is a legal process in which a lawyer submits a request to the court to remove a criminal record, under California Law. This process can give a person freedom and peace of mind because once the process is complete, the person does not have to reveal the criminal act that was once holding him or her back from certain opportunities. The person will be able to say, “No, I do not have a conviction on record.”

There are different types of expungements, with each type depending upon the criminal case and the factors involved. Keep in mind that record expungements are not available to all individuals. In order to get a record expungement, a person must qualify.

Criteria for Record Expungement

Expungement is an option for individuals convicted of certain misdemeanors or felonies. There are certain requirements a person must meet in order to get a record expungement. The criteria are as follows:

  • State convictions and state prison only
  • Probation term successful or conviction date is older than one year
  • Sentence requirements have been satisfied
  • No current charges pending
  • Not currently on probation
  • No crimes involving sex crimes against children and others according to California Penal Code 1203.4

All hope is not lost if you do not meet these requirements. Below, we list the options for those who are ineligible for record expungement.

What if I am Not Eligible for Expungement?

For those who do not meet the criteria for record expungement, the options are:

  • A pardon from the governor
  •  Clemency (Certificate of Rehabilitation or Commutation)

These options require an application and investigation of criminal history records, court and police records.

What a Record Expungement Does and Does Not do

A record expungement can help a person achieve success in life. A person can obtain gainful employment, get a professional license, and get a fresh start. However, an expungement does not make that person invincible.

While the expungement only removes the conviction from a person’s record, there are instances in which the expunged record may need to be disclosed. It is also important to note that the record expungement does not restore a person’s driving privileges. Continue reading

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In California and throughout the nation, the collection of DNA is a huge undertaking. All 50 states are required to collect DNA evidence from suspects, with some occurring at the arrest, prior to getting a conviction. Several types of DNA evidence exist in society today. DNA swabbing is one of the most common. DNA swabbing is a type of DNA used to collect evidence from the suspect of a sexual offense, such as rape. For purposes of this article, we will focus on DNA swabbing, the techniques of swabbing, and problems that exist in San Diego County.

What is DNA Swabbing?

A DNA swab, or what is technically known as a buccal swab, is the process by which cells are collected from the cheek of the mouth using a cotton-tipped applicator. Many people refer to DNA swab as a cheek swab.

According to Puritan Medical Products, there are three techniques of DNA swabbing:

  • Touch DNA swabbing
  • Double touch DNA swabbing
  • Blood and fluid swabbing

Puritan Medical Products also lays out the steps of DNA swabbing:

  • Preparation
  • Swabbing for cells
  • Preservation of cells for transport

After learning about the techniques of DNA swabbing and the steps it takes to complete DNA swabbing, you may be surprised to hear that San Diego County is facing its own problems when it comes to DNA swabbing and testing of rape kits.

San Diego Faces Problems With Rape Kit Policies

San Diego County is currently facing a problem with the incomplete testing of DNA rape kits. The San Diego Police Department (SDPD) admits to not having the capacity to test all untested rape kits in their possession while handling daily duties, according to an article in the Voice of San Diego.  

SDPD was testing only a single swab from untested rape kits. This was the procedure specifically reserved for circumstances where the DA declined to prosecute, according to a report by 10 News San Diego.

Although San Diego is making plans to resolve these problems, this just reiterates the fact that DNA swabbing is not always effective. Ineffective DNA swabbing is what lands an innocent person in jail.

DNA Swabbing is Not Always Effective

Regardless of the steps taken to preserve the evidence, DNA swabbing is not always effective in crime investigations.  DNA swabbing can be faulty and a technician’s error in handling the evidence happens often.

Because of the ineffectiveness of DNA evidence, this is where a knowledgeable San Diego criminal defense attorney can create a cloud of reasonable doubt surrounding the evidence. Continue reading

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When a person flees the scene of an accident he or she was involved in, the person is participating in criminal activity known as a hit and run. Most people only think of hit and runs as an accident involving vehicles, but hit and runs also involve motorcyclists, bicyclists, pedestrians, and e-scooter riders. Hit and runs also involve property such as land, signs and traffic signals and even pets. If you find yourself in a hit and run accident, you should seek legal assistance from a highly experienced San Diego hit and run attorney.

California Recognizes Two Types of Charges for Hit and Runs

Depending upon the hit and run situation, a person can face two types of charges – a felony charge and a misdemeanor charge. Today, Boertje & Associates will describe the differences in hit and run charges and how the charges apply to certain situations.

A person may face a felony charge for a hit and run if the accident results in an injury to another person, or even death. California Vehicle Code Section 2001 is the authority on the felony charge surrounding hit and runs and the penalties that follow. In order to avoid this charge, the person must have stopped the vehicle and exchanged information such as name, address, and vehicle information.

The person must also render aid in transporting the accident victim to a physician, surgeon, or hospital for treatment.

When property damage stems from a hit and run accident, a person may face a misdemeanor charge. To avoid this charge, under California Vehicle Code Section 2002, the person must have stopped the vehicle immediately at the nearest location. The location must not interfere with traffic or put the safety of other drivers at risk.

Common Defenses to Hit and Runs

A hit and run is a serious crime in San Diego that comes with strict penalties including jail time, prison time, thousands of dollars in fines, and driver’s license suspension or revocation. However, a San Diego hit and run attorney can help dismiss the case or at least reduce the charges and penalties with these defenses:

  • There is no property damage or injury to others
  • No knowledge of accident, property damage or injury
  • Car stolen or borrowed (meaning, the vehicle owner was not driving)
  • Did not willfully leave the scene (could not stop due to traffic)

Continue reading

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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