San Diego Criminal Lawyers Blog

August 9, 2024

The Realities of Racial Profiling

While there are those who assert that racial discrimination is an atrocious—albeit ancient chunk of American history, there are more than a few people of color who beg to differ that it has been alleviated in modern times. Discrimination based on race, ethnicity, national origin, and religion can be debilitating in all kinds of settings, none more so than in the world of criminal justice. Racial profiling by police and similar agencies has been documented to target people of color for stops, arrests, and incarceration.

Fear Behind the Wheel

If you have heard of the “crime” of driving while Black or brown, you probably know that one chilling part of life for minority populations in this country is the fear of being pulled over by racist law enforcement officers for tiny or nonexistent traffic infractions, only to then experience escalated violent interactions. That is because, all too often, law enforcement officers associate people of color with crime, making traffic stops and other interactions more likely than for white people.

Constitutional Violations?

The sad truth is that racial profiling is not restricted to a single segment of the law enforcement community, one particular race, or just one section of the country. In recent years the FBI targeted supposed Black Identity Extremists (BIE) with surveillance maneuvers that the agency has refused to make public. In excess of 18,000 law enforcement agencies have been alerted to the threat of attacks on police by BIE, despite any real evidence that Blacks have been attached to any such structured movement. Similarly, Asian Americans who work in the sciences have been scrutinized and even arrested based largely on their ethnicity. This particular discrimination is rooted in what the former Trump Administration called the “China Initiative,” which continues to operate under the Biden administration.

Meanwhile, Latino populations report more and more targeting by law enforcement, coming as the rise in anti-immigrant attitudes grows more vocal. Brown-skinned Americans fear being unfairly suspected of crimes, mistakenly deported, or worse yet, becoming one more number in the growing statistics showing that the number of Latinos killed by police and/or ICE agents is abruptly climbing. Middle Eastern Americans, too, have undergone more than their fair share of racial profiling as federal raids on communities of color continue to diminish public confidence in the law enforcement community. Racial profiling and its inherent domino effects can permanently uproot families, careers, and futures for blameless Americans of color, primarily because of the way others perceive them.

California Law

Racial profiling has been illegal in California for nearly a decade, prohibiting the practice and requiring reporting to the AG’s office of both pedestrian and vehicle stops, as well as any complaints of profiling. There is also an advisory board that is charged with examining research, data, and best practices in this area and sharing their conclusions with the public and policymakers. But regardless of laws on the books, racial profiling is baked into the mentalities of many Americans, some of whom work in law enforcement.

How to Respond to Racial Profiling

While it may feel impossible to stomach, it is important to remain calm in the face of law enforcement racial profiling. Obey officers’ demands and save your opinions for your attorney when you get the chance. Continue reading

August 2, 2024

Coercion After an Arrest

by David M. Boertje

If you have been arrested and charged with a crime, the best thing you can do is to cooperate with authorities on basic matters, like providing your name, and then respectfully request an attorney before answering any other questions. That is because, in the criminal justice system, coercion can be an issue that leads to real problems for you down the road. Any confession, coerced or otherwise, is going to be a headache in one way or another.

Volunteer Nothing

If you are in custody, you are a suspect. You may think that being cooperative and answering questions will demonstrate your innocence, but nothing could be further from the truth. And do not think that you can use the fact that you had not yet been Mirandized as a defense—police can always claim that they would have figured out our guilt without your help. So never, ever share incriminating information, no matter how innocent you think it is.

Police Coercion

When authorities–like police– pressure or intimidate individuals in order to get a confession, it sometimes leads to poor outcomes for victims, communities, and even law enforcement agencies. Some techniques that can be disastrous include:

Threatening horrendous consequences if cooperation is not forthcoming;
Using rank and the associated power to intimidate someone who is already afraid of police;
Psychological techniques that confuse or frighten victims;
Lying to scare suspects;
Physically threatening individuals.

Coerced Confessions

Even when one waives their Miranda rights, when police do not live up to expected standards of interrogation, they can get coerced confessions from unsuspecting detainees. Obviously, punching a suspect or pointing a weapon at them in order to get them to confess is extreme, but there are much more benign ways authorities might coerce. Improperly threatening to go after family members, publicizing embarrassing information about a suspect, or even refusing to let a suspect use the restroom or have food and water are techniques that could lead to involuntary or coerced confessions.

Consequences of Coercion

The obvious issue with coercion is that innocent people get sent to jail, leaving the real criminals on the streets to repeat their crimes. But that does not have to be the case. When officers intimidate a suspect, which results in getting that suspect to acquiesce to authority, the confession and any information shared under duress could be suppressed, meaning the evidence would not be admitted in court. It could all be considered “fruit of the poisonous tree” and be inadmissible. Continue reading

July 26, 2024

Could You Be Deported for Committing a Crime?

by David M. Boertje

For non-citizens living in the United States, following all laws is crucial. While it is true that the idea of incarceration and fines is upsetting to anyone, things can get much more problematic for immigrants who lack U.S. citizenship. That is because, in certain situations, criminal activity could result in deportation. The rules set out by the Immigration and Nationality Act could lead to a hasty, unplanned exit from America (or inadmissibility) for non-citizens.

Non-Citizens

There are three types of individuals, all of whom are in the country legally, but none of whom qualify for a U.S. passport, and none of whom are citizens of the United States:

Dreamers: Undocumented individuals who entered the country as children when they were under the age of 16, who have been here for five or more years but who are under the age of 31, and who have had no serious criminal convictions and are in school, are high school graduates, GED holders, or have performed military service.
Temporary residents: Foreign nationals and their spouses and children who are here on a work or education visa;
Permanent residents, who have green cards and who live and work in the U.S. legally.

Problems That Could Lead to Deportation

A number of issues could result in deportation:

Compliance Failures: Discounting the requirements to comply with a change of address registration or the falsification of any documentation related to visas, permits, or entry documentation could lead to deportation.

Crimes of Moral Turpitude: Crimes of Moral Turpitude are crimes that society has deemed intolerable because they violate recognized rules of morality. Two criteria must be met in order to result in deportation:

The crime of moral turpitude was committed within five years of being admitted to the U.S. (or within ten years for someone who has permanent resident status);

The crime has a maximum criminal penalty of one year or more behind bars.

Drug Charges: Drug charges (unless there is a single charge related to having 30 grams or less of marijuana for personal use only); being an addict or user of drugs (outside this marijuana exclusion);

Firearms Charges: Using, trading, buying, selling, or carrying a firearm, device, or accessory that could be destructive and that is in violation of state or federal law;

Aggravated Felonies: Any conviction of an aggravated felony;

High-Speed Flight: Participation in a high-speed flight from an immigration checkpoint;

Domestic Violence: Violating a protective order, as well as any conviction of stalking, domestic violence, child abuse, neglect, or abandonment;

Falsely Claiming U.S. Citizenship: Falsely representing oneself as a U.S. citizen to receive a benefit;

Illegal Voting: Voting in any local, state, or federal election for a constitutional provision, regulation, ordinance, or individual; Continue reading

July 19, 2024

Road Rage Can Lead to Criminal Charges

by David M. Boertje

If being a hothead while you were behind the wheel led to an arrest, you could be facing some serious charges. Now, more than ever, you need an experienced criminal defense attorney looking out for your rights.

What is Road Rage?

Road rage is displayed in many ways, none of which are acceptable under California law. Even an incident that does not result in injuries could land you in the slammer for as long as 90 days, in addition to some pretty hefty fines and impacts on your driving record and your ability to drive at all. Surely, misdemeanor reckless and aggressive driving charges are not worth it. Your anger, regardless of any provocations by other drivers, is your responsibility, and the repercussions of losing your temper may be more than you bargained for. What could get you into this kind of legal trouble? A number of aggressive behaviors could emerge into road rage, including;

Speeding;
Veering in and out of traffic lanes;
Tailgating;
Erratic driving;
Intimidating other drivers ;
Brake checking;
Street racing;
Refusing to let other motorists merge.

When Rage Leads to Harm

These actions are dangerous and can lead to accidents. Some other very serious examples of road rage—such as getting out of your vehicle to fight or displaying a gun, knife, bat, or another weapon—even the vehicle itself– to threaten motorists, can be even more frightening, and the outcomes can include serious physical harm or even death. The number of road rage events involving guns has escalated by nearly five times in the last decade in this state. Charges of assault with a deadly weapon, battery, vehicular manslaughter, or even murder could lead to felony charges, meaning you could face years in prison and thousands of dollars in fines.

Keep Your Cool

Without question, it can be difficult to remain calm when dealing with congested traffic, roadwork, discourteous drivers, and the ever-present Nevada heat. Even so, there are no winners in road rage incidents, so keeping your cool benefits you as much as others on the road. How can you manage it? Some tips include:

Give yourself all the time you need to get where you’re headed. Time crunches make many people uneasy and more inclined to road rage;
Give other drivers the benefit of the doubt if they cut you off or do something else irritating–— mistakes happen, and it is not personal;
Show courtesy yourself so others do not react badly to your driving;
If someone on the road is pushing your buttons, try to elude them by slowing down or staying out of their way. Hopefully, they will be out of sight shortly.

July 12, 2024

Defense Strategies

by David M. Boertje

Innocence and guilt are determined in courtrooms across the country every day. While the burden of proof is on the prosecution in any criminal trial, the defense strategy offered during a trial can certainly do a lot to dismantle a prosecutor’s presentation. Whatever defense you wind up with, you want your attorney to put forth a calculated foundation that challenges the theories delivered by the prosecution. Certainly, the best-case scenario has the defense providing an alternate theory of the case that will decimate any chance of a jury finding guilt beyond a reasonable doubt. An experienced criminal defense attorney can help you to weigh four basic defenses: perfect, imperfect, affirmative, or denial.

A Perfect Defense

A perfect defense is looking for an acquittal on all charges. It could be based on something like a strong alibi or similar factual matters or on legal statutes, such as an expired statute of limitations that negates the state’s ability to prosecute in the first place. Whatever the specifics, a perfect defense is designed to provide a path to acquittal.

An Imperfect Defense

Sometimes, attorneys are simply unable to deny any connection between a defendant and the crime, so they seek to reduce the severity of the charges. In other words, the defendant’s attorneys argue that, while the defendant was a participant in criminal activities, the crimes do not rise to the level of the charges. That might mean seeking manslaughter charges instead of first-degree murder charges, for example. This imperfect defense will not result in an acquittal but aims to achieve a lesser sentence.

An Affirmative Defense

Sometimes, a defendant asserts some sort of justification—temporary insanity, for example—that must be credibly demonstrated in order to explain the event in question. A couple of other commonly used affirmative defenses include self-defense and entrapment. An affirmative defense, in other words, acknowledges the defendant’s involvement in the crime but provides a legal excuse for the actions.

A Denial Defense

The denial defense challenges that there is no proof beyond a reasonable doubt related to each and every element in a case. These elements, at the very least, will include confirmation of criminal activity and of criminal intent and of the concurrence of the two. If a crime requires a negative outcome (not all do), causation and harm also must be proven. Finally, in some cases, attendant circumstances may be required (for example, characteristics of the victim in a hate crime). The defense team can either brawl to demonstrate that these elements are not in evidence or simply wait for the prosecution to fail in their ability to provide proof beyond a reasonable doubt. Continue reading

July 5, 2024

Harboring a Fugitive in California

by David M. Boertje

If you have been charged with harboring a fugitive, you could be looking at serious state and/or federal penalties, including large fines and years in prison. It does not matter how or why you got mixed up in this situation: it is essential you work with an experienced criminal defense attorney now. Otherwise, the potential consequences associated with the charges could be devastating.

What Does it Mean to Harbor a Fugitive?

Anyone who consciously conceals or harbors an individual could be charged with harboring a fugitive if the individual in question has been issued an arrest warrant or has escaped from authorities and is fleeing the court’s jurisdiction, especially if the concealment occurs specifically to interfere with that individual’s apprehension by law enforcement. The law requires one who encounters a known fugitive to refuse shelter, aid, or financial assistance and instead contact authorities as soon as it is safe to do so. If you find yourself in a position where harboring a fugitive is a possibility, it’s a good idea to get advice from counsel prior to becoming involved in discussions with law enforcement.

An Ethical and Moral Dilemma

Sometimes, choosing the correct course of action can be a huge dilemma of principle for people. If the fugitive is a family member, for instance, one might be reluctant to turn them away. Similarly, if the fugitive happened to be a sympathetic figure, or one that stands for a particular ideology, it might be tempting to offer assistance. Even so, the law regards those who choose personal motives over legal requirements in these situations as criminals themselves.

It Can be Trouble for You

The law is crystal clear: it requires you to know—or expects that you reasonably should have known– that the person you are helping is a fugitive in order for the courts to find you guilty of harboring a fugitive. If a prosecutor is convinced that you did, indeed, know the status of the fugitive, you will likely be charged based on your actions. You could face legal problems for any amount of help you provide, even if you do no more than simply give advice on where to hide or how to evade authorities or if you direct a fugitive where to access resources to aid in escaping discovery. Obviously, actively shielding a fugitive, trying to throw law enforcement off track, or otherwise damaging the investigation will likely lead to charges against you. It is worth knowing that the seriousness of the charges against the fugitive will impact the gravity of the charges against you. It’s one thing to hide from authorities based on numerous traffic tickets. That is going to be less of an issue than someone who’s been charged with rape, domestic violence, or murder, for instance. In either case, however, the legal expectation is that you notify authorities regardless of the charges the fugitive is trying to evade. Continue reading

June 28, 2024

Sexual Assault: When You Cannot Trust the “Good Guys”

by David M. Boertje

Sexual assault is something that happens every day, but when it occurs at the hands of police officers, it is somehow even worse. And studies show it is not an occasional problem. Officers who are sworn to serve and protect sometimes make victims out of arrestees. It happens across the country, including right here in California.

Case in Point

An officer has been indicted for assaulting a number of women here in the state. The abuse ranged from instructing a victim to remove her clothes with no legitimate legal reason to forcing victims to have sex, in one instance, after locking his victim in his car and driving to a remote location. If the charges hold, the officer could be spending the rest of his life in prison and paying hundreds of thousands of dollars in fines. When individuals in power use the badge to manipulate and harm people, it is a horrendous crime. That is even more true when the victims are children.

WaPo Study

According to a study conducted by the Washington Post, children have been sexually abused by police officers and sheriffs’ deputies in hundreds of situations country-wide. And in many cases, these abusers have used their connections and knowledge of the law to protect themselves from the most serious of consequences. For example:

An officer who offered to “help” a 13-year-old run-away and be her mentor wound up ultimately impregnating her.
An L.A. County sheriff’s deputy abused a woman he had stopped near a hotel. He was later allowed to become a bureau detective with the special victims unit, where he sexually abused a 15-year-old girl.
A 16-year-old who was considering becoming a police officer went on ride-alongs with one officer who sexually abused her in multiple locations. After pleading guilty to statutory sodomy, he received only probation as his sentence.
When a 14-year-old went to the hospital for a rape kit, she wound up being raped again—by the officer in charge.

Officers Groom Teens

In case after case, officers meet troubled teens and spend months grooming them and gaining their trust and the trust of their parents. Then they created situations when they could be alone with the teens and threatened them if they told anyone about what was happening.

Departments Must Do Better

Researchers concluded that police and sheriff departments must be better about flagging issues in officers’ background checks and at responding to complaints when they occur. Additionally, officers must be compelled to report incidents they see or suspect. Continue reading

June 21, 2024

The Pre-Sentencing Interview: What to Expect

by David M. Boertje

If you have been found guilty of violating crimes in California, you will undergo a presentence interview before you ever get to the sentencing phase of the process. This is basically an investigative interview with a probation officer who will be tasked with making recommendations related to your sentencing, so making a good impression is probably a good idea. The report will be confidential, with only your counsel and the prosecutor receiving a copy.

Topics of the Interview

The interview will cover a broad set of topics and might also include:

Family background;
Previous education;
Ties you may have to the community;
Employment history;
Criminal history;
Associations with known criminals;
Financial stability;
Addiction issues;
Physical health issues;
Attitude accepting or declining responsibility for current offense(s);
Mental health concerns.

Records of Interest

Your interviewer will likely review documentation related to your personal history, including things like:

School transcripts;
Providers of substance abuse and/or counseling treatment;
Records related to employment;
Records related to financial status;
Records related to military service;
Records of previous criminal activity;
Documentation of physical and/or mental health issues;
Documents related to your trial, including transcripts, pleas, and other reports.

Further Investigation

The probation officer will continue to look for information about you by interviewing others who may have relevant data, including individuals from law enforcement, the prosecutor involved in your case, your employer, family, and friends. A home visit will be scheduled if possible, during which your living conditions will be assessed.

Can I Refuse to Answer Questions?

While you absolutely have the right to decline to answer some questions, it could result in the probation officer simply seeking the requested information from another source. If your attorney has advised against sharing certain information, or if you just resolve not to answer of your own volition, you can count on that being reported to the court with a notation stating the reason for your lack of cooperation. There is always the possibility that refusing to cooperate could have a negative impact on the sentencing recommendation.

After the Interview

Once the report is written, it will be given to both the prosecutor and defense attorney, either of whom may object to anything contained in the document. The recommended sentencing guidelines that are based on the information in the report may be challenged, as well. Those objections, along with the probation officer’s responses, will then be included in an addendum to the report, which is what the judge will receive (as well as both attorneys).

If the judge sentences you to prison, the report will follow you to the Bureau of Prisons, but it remains confidential and cannot be shared outside this tiny circle. Continue reading

June 14, 2024

Defending DUIs in California

by David M. Boertje

If you are booked in jail for a DUI, you should be pretty worried about how the whole thing will impact your life. In particular, this is a serious situation if this is not your first issue with driving under the influence of alcohol or drugs, and you are going to need the skills of an experienced criminal defense attorney in order to secure the best outcomes for you.

California Law

The laws related to alcohol and cannabis are quite strict in the state of California. In terms of simply being in a vehicle, you may not:

Consume alcohol or cannabis as either a passenger or a driver;
Carry alcohol or cannabis products in the passenger compartment if they are unsealed;
Hold alcohol in the glove box in an open container.

BAC Limits

While most people understand that drivers may find themselves getting a DUI if it is discovered that they have a Blood Alcohol Concentration (BAC) of 0.08% and higher, some may not realize that drivers under the age of 21 can get a DUI if they have a BAC of just 0.01%. That is true for drivers who are older but who are on probation for having had a DUI. Drivers who are hired to transport passengers (like ride-share or taxi drivers) or those driving vehicles requiring a commercial license could get a DUI with a BAC of 0.04%.

First Convictions

A first conviction could result in the following:

Revocation of your driving privileges;
Enrollment in a DUI program;
Mandatory filing for SR ww/SR1P (expensive auto insurance);
Fees related to driver’s license restriction and/or reissuance;
Potential requirement to have an ignition interlock device installed in your vehicle and related costs;
Up to six months in county jail;
Fines of up to $390;
Vehicle impounding with related storage fees;
Probation;
10 years having the DUI conviction on your driving record.

Second and Subsequent DUIs

For anyone convicted of a second DUI, the penalties get much worse. Fines jump up to $2,000, DUI school extends to up to 30 months, and jail time could double to up to a year. Other penalties will be extended, as well. If there were any aggravating factors, such as a BAC of 0.15%, having a minor in the vehicle, refusing to submit to testing for chemicals in your blood, speeding, or causing an accident, the legal consequences could get even worse. Continue reading

June 7, 2024

Can I Withdraw My Guilty Plea?

by David M. Boertje

Let’s say you pleaded guilty—or even a no-contest—and have since thought about it and decided that you made the wrong move with that plea. Maybe it was part of a plea agreement, and you were so frightened by the thought of a long prison sentence that you copped to lesser charges just to avoid that scenario. But with time, you just cannot stomach the idea of saying you did something when you are innocent. Even though a no-contest plea does not necessarily admit to guilt, it does result in legal penalties. In your case, the paperwork’s been signed, so are you stuck in a deal you do not like? Maybe, maybe not.

California Law

According to California Penal Code 1018, there are circumstances under which a defendant may withdraw a plea. It is not simply something you can choose willy-nilly, though. The law requires you to show good cause in order to file a motion to withdraw your plea. That means one of the following must be true:

You agreed to the plea before you had a lawyer to advise you;

You had a lawyer but believe they were incompetent/ineffective;
When you agreed to the deal, you did not understand the potential consequences;
Law enforcement and/or prosecutors failed to advise you of your constitutional rights;
You agreed to the plea deal, but it was presented in a language other than your native tongue, and you did not completely understand what you were doing.

What is the Timeline and Process?

As a defendant, you can feasibly back out of the plea arrangement any time before you have actually been sentenced or within six months of the judgment being entered. (Under limited circumstances, you can change your plea after being convicted and sentenced, but it is a much more time-consuming and complicated process!) Prior to sentencing, your attorney will simply file the paperwork and then attend a hearing with you to try to demonstrate to the court that you have good cause to change your plea. Things can go one of two ways from there:

The judge can deny the motion and will sentence you based on the charges you pleaded guilty to; OR
The judge will grant the motion, and you will go back to the beginning, where you plead not guilty to charges at the arraignment. (Obviously, any benefits you might have reaped by agreeing to the deal are forfeited at this point).