San Diego criminal defense lawyer

February 4, 2022

How Can Law Enforcement’s Tunnel Vision Lead to a False Arrest?

When law enforcement is alerted that a crime has taken place, they must respond by coming out and investigating the situation. They will examine the crime scene, talk to witnesses and knowledgeable people, and collect evidence. In addition, forensic science techniques and other modern technology may be employed to figure out how a crime took place and who is responsible for committing it.

The police are supposed to review all of their evidence to start to unravel the mystery of who must be held legally accountable under the eyes of the law. And while the police are good at what they do when it comes to breaking evidence down and getting to the truth of a crime, they do not always get it right. There are times when it may be plausible to think that one person could have committed a crime, but this person of interest is not the actual perpetrator of the unlawful act.

What is Police Tunnel Vision? How is it Harmful to the Public?

Tunnel vision, with respect to the police identifying a suspect in a crime, is a term that describes a scenario in which the police suspect a person is guilty and because of this, they do not investigate any other potential leads. It can be challenging once a criminal narrative and theory are developed to deviate from it. All-too-often, once clearly defined speculation becomes a believable option, the police can become less interested in other information that could negate its validity.

If you are being targeted by the police, it is important that you have effective legal counsel on your side fighting back at attacks that may be unfair and unwarranted. As a nation, we expect that law enforcement is going to do a full and exhaustive investigation into all crimes to come to the truth and only penalize those people who are actually guilty.

However, poor investigative procedures, mistakes and missteps, and negligence happen all of the time in the United States. As a result, there are times when innocent people are charged with crimes, and in some cases, convicted. Being wrongly charged and penalized for the crimes that another person committed is the most egregious type of injustice that can happen.

It is crucial to the outcome of your case that you have a seasoned lawyer representing your best interests if you are identified as a potential subject of a crime. Having a lawyer does not mean that you can guarantee freedom and a not guilty verdict, but arming yourself with legal counsel substantially improves your chances of securing the most favorable results. David M. Boertje is a criminal defense attorney in San Diego who can help you if you have been implicated in committing a crime. Continue reading

April 26, 2017

Lee County Dropping Charges Against Dakota Pipeline Protestors

by David M. Boertje

In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial.

In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.

Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of interference with official acts and pay the maximum fine.

One of the reasons the County likely dropped the charges was in the interests of court efficiency. “‘If they all ended up having a jury trial, I would probably have had a jury trial every week between now and October, and we still probably would not have reached all the cases,” said Boddicker.

For those who did not show up to court, Lee County says it is planning to issue arrest warrants.

The Press is Supposed to have Reporter’s Privilege

Under the First Amendment of the U.S. Constitution, the freedom of speech and press, and therefore the right of newspapers to cover and publish a story are protected rights that should be free from government interference. However, it is more of a legal gray area when reporters have to news-gather, and go to the protest, or step over a police line to get their photos and story.

Assuming the protest is in a public forum, reporters should not need credentials to cover it—they enjoy a right of access along with the public under the umbrella of the First Amendment. However, the government is allowed to institute time, place, and manner restrictions on free speech activities.

In those instances, it is recommended that a reporter get credentials or a ‘press pass’ from police departments to be able to cover a protest. Credentials will allow a reporter to cover the protest, but not partake in it. It also does not guarantee that he or she can cross police lines. This means that reporters also cannot “commit” crimes while trying to do their job, such as trespassing. In any event, it can be assumed that police and the current Administration will seek to limit press access and increase retaliation against reporters covering a contentious protest. If you are a reporter, it is recommended you have a criminal defense attorney on-hand if you know you are going to covering an event with high arrest rates. Continue reading

July 16, 2015

6 Young Suspects Arrested in Chula Vista for Crime Spree; 1 Still at Large

by David M. Boertje

The SDPD has arrested 6 young suspects ranging from age 18 to 20 allegedly involved in a crime spree throughout Chula Vista that included an attempted homicide, criminal conspiracy, mayhem, home burglaries and stealing from middle school students on the streets on the weekend of June 20.

A 5th and 6th suspect, both 17-year-old Chula Vista residents, was also taken into custody and booked into juvenile hall for attempted homicide and robbery. However, the San Diego District Attorney’s office is considering charging them as adults as one of them turns 18 this month. What is more bizarre in this story is that the SDPD is looking for a 7th suspect in this group. He is wanted on charges of attempted homicide and robbery and at large. The CVPD believes there are more victims out there who have been assaulted or robbed by this group of suspects.

Robbery Charges in California

This story is bizarre, but here is a basic breakdown of all the potential charges this group faces:

Assault- is defined as the “application of force” that is harmful to someone. It is a misdemeanor punishable by up to 6 months in jail and a fine of $1,000. This charge is typically brought in addition to charges of battery, or assault with a deadly weapon, which is punishable by a felony of up to 4 years in jail.
Robbery- is defined as the act of taking someone else’s property by force or fear. A 1st degree robbery conviction is punishable by 3-6 years in California state prison and a $10,000 fine. If there are multiple victims as there are in this case, you will be charged with a different count of robbery for each victim. Additionally, there are sentencing enhancements in California depending on whether the robbery was committed with a gun, or whether the victim suffered great bodily injury. This crime also qualifies for California’s 3 Strikes Law.
Theft (also called larceny)- is defined as the act of permanently withholding a property owner’s right to property. California distinguishes between petty theft and grand theft.
Mayhem- is defined in the California Penal Code as the act of unlawfully disabling/disfiguring, or cutting off the limbs/body parts of a victim. It is a felony punishable by 2-8 years in prison and a fine of $10,000.
Criminal Conspiracy– exists when two or more people agree to commit almost any unlawful act. It is punishable by up to 16 months to 3 years in state prison.
Attempted murder- is defined as trying to kill someone. It is a felony, but comes with a sentencing enhancement when committed as part of a criminal gang or with a gun. These sentencing enhancements add a minimum of 10-15 years to your sentence.

July 14, 2015

13-Year-Old Boy Crashes into a Senior Center During Joyride

by David M. Boertje

A 13-year-old teen in Chula Vista who took his parents’ car for a wild joyride overnight crashed into a senior service center and then left the scene of the accident. The Chula Vista Police Department (CVPD) said the joyride began with the teen crashing into a parked Dodge Ram truck. He then continued driving down East Palomar Street, making a too wide of a turn. As a result, the car jumped the curb, ran across the sidewalk, and then smashed through a fence and into St. Paul’s Plaza, a senior service center.

The unnamed teen sustained minor injuries, but walked away from the scene. The boy was found a short time later and taken to Rady Children’s Hospital with unspecified injuries. No one else was injured. The incident is under investigation but police said they do not believe alcohol played a role in the crash. It is unclear, at this point, if the teen will be charged in the joyride crash, although he theoretically would still face civil charges of property damage from the senior center even if police choose not to criminally charge him.

The Crime of Joyriding

Joyriding, which is addressed in the California Vehicle Code 10851(a), is defined as driving or taking a vehicle that does not belong to you without the owner’s permission. Vehicles include passenger vehicles, motorcycles, motor scooters, buses, school buses, commercial vehicles, trucks, tractors, trailers and semi-trailers. In order to ‘take’ a vehicle, you must move it; it does not matter how far you took it or how long you had the vehicle. To be convicted of joyriding, it is also not a requirement that you intended to steal the vehicle—unlike a charge of grand theft auto.

In order to convict you of joyriding, the prosecution must prove that:

You drove or took a vehicle;
The vehicle did not belong to you; and
You did not have permission to drive or take the car.

Legal Defense

If you can prove that you own the vehicle, or that you had good reason to believe you did, you cannot be charged with joyriding. For example, one of the reasons you might have believed a car was yours is in the case of divorce– if you shared a car with your spouse, and you were unaware after your separation that the car did not belong to you.

Another legal defense is that the owner of the vehicle gave you permission to borrow his or her car.

May 18, 2015

Protester Rights and the Bail Process

by David M. Boertje

On April 12, 2015, a man by the name of Freddie Gray was chased down and arrested for “possession of a switchblade” by Baltimore PD. Eyewitnesses report Gray screaming and asking for medical attention. By April 19, a week later, Gray had slipped into a coma and died while in police custody. Autopsy reports indicate that Gray’s neck was broken and his spinal cord was nearly severed. His death set off yet another wave of daily protests decrying police racism and brutality in west Baltimore that boiled over into riots throughout the last week of April. By April 27, Maryland Governor Larry Hogan declared a state of emergency and even imposed a 10pm curfew.

Meanwhile, a wave of national protests sprung up in support of Baltimore, including San Diego. In San Diego, hundreds marched once again in the neighborhood of City Heights, known in the area for being one of the historically poorest neighborhoods in this tourist town, as well as downtown San Diego. The City Heights area has also held a number of “BlackLivesMatter” protests in the past several months following the deaths of Michael Brown and Eric Garner. While many of these protests have not led to any arrests, that has not always been the case. Meanwhile, in Baltimore, there are reports of frightening instances of medical volunteers and legal observers being arrested without charges. In addition, a video of a Freddie Gray protester being pepper sprayed and slammed to the ground has also made its rounds to the internet.

May 11, 2015

The Infamous California “3 Strikes Law”- Which Crimes Count?

by David M. Boertje

The State of Washington was the first state in the nation to pass the ‘no-nonsense’ 3 strikes policy to address repeat, criminal offenders in 1993. California enacted its 3 strikes law shortly after Washington in 1994. These “habitual offender laws” are statutes adopted by individual state legislatures to impose harsher sentences on those who have committed three or more felonies. In most states including California, this means a life sentence without the possibility of parole on the 3rd strike.

Since 1993, 28 states have passed that same policy (Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin), with Massachusetts being the latest state to adopt a 3 strikes law in 2012.

May 7, 2015

Landmark Ruling: Police May Not Detain Traffic Violators Longer than Necessary

by David M. Boertje

The Supreme Court once again re-visited the topic of traffic stops (the Court held this past December that evidence obtained from a search at a traffic stop based on a mistake of law was okay). Its most recent ruling issued on April 21 held that that police may not detain a traffic violator longer than necessary so as to allow police time to conduct a dog sniff for drugs. See Rodriguez v. United States.

On March 27, 2012, defendant Denny Rodriguez was stopped alongside a Nebraska highway for swerving in and out of lanes, by Officer Morgan Struble, who subsequently questioned him, checked his license, registration, and whether he had any outstanding arrest warrants. He also checked the documents of Rodriguez’s passenger as well. Twenty minutes later, the officer tried to detain Rodriguez further, to which he objected. Rodriguez was detained while additional officers and a K-9 unit arrived at the scene. The K-9 sniffed out a bag of amphetamines and Rodriguez was indicted for possession and intent to distribute methamphetamine and sentenced to five years in prison. He appealed to the Supreme Court which granted certiorari, and with Justice Ruth Bader Ginsburg speaking for the 6-3 majority, the Court held that officers may only check a driver’s license, registration, and any outstanding warrants. The stop becomes “unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.”

What This Means

April 22, 2015

Unprecedented Criminal Case on New Revenge Porn Law

by David M. Boertje

On Friday, April 3rd, 28 year old San Diego man Kevin Bollaert was convicted in the San Diego Superior Court and sentenced to 18 years for 27 counts of identity theft and extortion via California’s newly enacted revenge porn law. Additionally, he was ordered to pay $10,000 in restitution. Although Bollaert is not the first to be convicted under California’s new law, his steep sentence is unprecedented. Specifically, Bollaert ran a revenge porn website (called Yougotposted) which allowed vengeful ex-husbands and boyfriends to post nude photos of their ex-girlfriends and link them to the women’s personal social media accounts. Bollaert, a Web developer, posted the pictures and then charged women from $300 to $350 to have the pictures removed. Prosecutors alleged that over 10,000 photos from California and other states were posted on Bollaert’s website between Dec. 2, 2012, and Sept. 17, 2013.

Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. The hearing took all day, and eight women testified on how they were damaged by Bollaert’s actions. This was the first case of its type in the country, and California was the first state to prosecute someone for posting humiliating pictures online. Above all else, this case is more about online harassment, threats, and extortion.

New Legislation

April 20, 2015

What Does Domestic Violence Have to Do with the Family Dog?

by David M. Boertje

Well, the answer is everything. Courts and the public opinion are increasingly viewing the family pet and other companion animals as family members, and the legal trend of covering pets in domestic violence (DV) protective orders are expected to increase. This trend responds to the evidence that 71% of women entering the shelter system have reported that their abusers injured, killed, or threatened to injure the family pet as a revenge mechanism. It has also been irrefutably proven that there is a link between domestic violence, child abuse, and animal abuse. Even if you know you would never hurt an animal, the stigma of these facts are likely to subconsciously affect a law enforcement official’s perception of you if you have been accused of domestic violence.

California Domestic Violence Law vs. Animal Cruelty

Under California law, police are nearly always required to arrest any man or woman accused of spousal abuse or domestic violence—whether or not the suspect is guilty. The victim may then thereafter file for a protective order (also called a “restraining order”) to keep someone from contacting, calling, harassing or touching them. In addition, California law explicitly covers the family pet in restraining orders in cases of domestic violence. See CA FAM § 6320 – 6327. Specifically, the statute states that:

March 25, 2015

Teen Suspected of Making Online Threats Through the Burnbook App

by David M. Boertje

Early in March, San Diego Police investigated two threats of violence to high school campuses using social media. On March 5, they investigated a threat made to to Del Norte High School through the Burnbook app. On March 11, another threat on the Burnbook app was made against Mission Hills High School in San Marcos, Ca, indicating that the poster was building a firearm. The Burnbook app allows users to post pictures and texts anonymously, modeled after the “Burn Book” made famous by the notorious movie “Mean Girls.” Students in other schools also claim that the app is being used for cyberbullying. In these two instances, parents and the school principal contacted the SDPD immediately after discovery, but in both instances, it was found the threats were not “credible” because they were not specific enough.

This is just one of the many times the legal question of when “free speech” becomes an illegal threat not protected by the First Amendment has come up, given current events. Just recently, a Seattle man was sentenced for making Facebook threats against Officer Darren Wilson, though the judge believed he was merely expressing a strong reaction.

When Does “Free Speech” Rise to the Level of a Criminal Threat?