David M. Boertje

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The link between mental health issues and substance abuse and crime and punishment is undeniable. Many believe it is long past time for the justice system to recognize and address the situation. Ergo, there has been a recent countrywide focus on connecting support services and treatment to convicted criminals battling such issues. It can be a powerful way to mediate the revolving door of incarceration in the criminal justice system. It is something the dedicated criminal defense attorneys at Boertje Law always look to in lieu of or in concert with time behind bars. 

Success on Many Levels

The success of Drug Courts as a diversion program is well-documented. Well over half of non-violent offenders across the country who are given the opportunity to participate in substance abuse treatment programs graduate from them, and recidivism rates over three years improve by about one-third overall.  Some of the best programs claim up to an 85% decrease in recidivism. 

Promising results are being seen with Mental Health Courts as well, which have a 20% recidivism rate over two years, compared to a rate of 72% for non-participants. Some programs are designed specifically for veterans, while others help participants work toward family reunification.

Diversion programs like these support graduates in making connections to other services such as housing, job training, education, and mental health referrals after they’ve completed their studies.

How the Programs Work

Evidence-based models are successful because they rely on some very specific practices and goals. Such programs have well-articulated assessment methods and treatment practices, and, while demanding, work to be supportive rather than accusatory or adversarial. Studies suggest that programs that have a law enforcement officer on the lineup improve graduation success rates. Rules in these programs are exacting, as is supervision. Participants undergo routine drug testing and must be available for a test at any time. Courtroom interactions are firm, while also being encouraging, with program participants being rewarded for their successes and sanctioned for missteps. A compilation of even minor infractions can result in release from the program and a stint behind bars. Sadly, that means those with the most serious problems and those who are from marginalized groups are usually the most likely to be terminated without success.

Financial Benefits

The fact of the matter is that successful diversion programs are much less expensive than traditional incarceration, although funding issues are a constant issue hanging over these programs. According to the Urban Institute, the financial benefits of drug courts exceed a 2:1 ratio for every dollar spent. Some programs provide nearly a 4:1 benefit ratio.  Continue reading

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Peaceful protest: Americans have been fighting for their communities through it of late, often reaping the wrath of ICE agents or other officials. That’s okay—we all know that the constitutional right to protest and speak out is one of the most powerful ways to hold our government accountable, even if officials do not love it. But something disturbing is happening to some protestors across multiple states in a reaction to their decision to protest: their DNA is being collected by federal officials. Customs and Border Patrol is routinely arresting people and getting their DNA, regardless of the charges against those protesters. According to a Supreme Court ruling, it is completely legal, but only when related to violent criminal arrests across the country, including after being arrested for a felony in California. 

A Serious Concern

There are two issues related to DNA collection in this context. The first is that many, if not most, of the protestors who have had their DNA collected have not been involved in violent criminal activity. The second is that DNA is a very unique and personal thing that contains enormously personal information about a person and their family. It’s more invasive than an identifying fingerprint because DNA tells so much more about a person, and it can be collected, saved, or shared with no transparency. What are the consequences of such a policy?

For Example…

Dana Briggs, a retired Air Force veteran, attended a protest demonstration near a detention center in Chicago last September. He’d been an activist for years, believing that Homeland Security’s actions were a problem. He’d served his country to protect citizens’ rights, after all. He never could have imagined that he would be pushed to the ground, then swarmed by federal agents, and later arrested and handcuffed to his hospital bed while being treated for his injuries. Upon release from the hospital, Briggs was moved to a federal facility, where he was read his rights, photographed, and fingerprinted. Then came the surprising part: a cotton swab that collected DNA from a cheek swab. (Refusing to comply would result in yet more charges.) Since then, warrantless and excessive intrusion into his body. He claims that the government’s tactics are a threat to public protests and a clear message that anyone who speaks out against the government, along with their relatives, could potentially be monitored in the future.

Chilling Reaction

It’s reasonable to suppose that when people know their DNA may be collected and added to a federal surveillance database just because they participated in a demonstration, many will think twice before participating in a protest. It is an unsettling government rejoinder to citizens simply exercising their rights under the Constitution. Continue reading

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People of color necessarily anticipate darker outcomes following an arrest. That is because, as data verify, they are arrested and prosecuted in higher numbers than their white counterparts, and they receive harsher penalties. 

The Statistics

If you are of the view that racism is a thing of the past in this country, perhaps a look at some statistics related to the criminal justice system will change your mind:

  • Black Americans comprise nearly 40% of prisoners in this country despite making up just 13% of the population.
  • Black and Latino defendants, who account for less than 30% of the population in this country, account for 57% of the prison population.
  • Just under half of individuals serving a life sentence are Black.
  • Male offenders who are Black receive sentences that are an average of roughly 5% longer than white offenders convicted of similar crimes.
  • Black Americans are sent behind bars nearly five times more often than whites.
  • 14% of the juvenile population in this country is Black, but they account for one-third of all children arrested, over 40% of those detained, and over half of whose cases wind up in criminal courts.

Bias Starts Early in the System

Sadly, studies consistently reveal that people of color are more likely to be stopped and searched than white people. In research looking at nearly 100 million stops by law enforcement, evidence of racial bias appeared again and again.

A Call for Change

In response to extensive data documenting racial disparities across the criminal justice system, the NAACP has called for changes, including:

  • Forming commissions at the state level to advise legislative or administrative efforts to address the factors that contribute to racial disparities in the justice system;
  • Doing more to encourage and support high school completion for at-risk youth and those behind bars;
  • Working harder to develop youth development and employment opportunities;
  • Delivering ample funding to public defenders who serve indigent defendants;
  • Assisting former convicts who’ve paid their debt to society in starting over by eliminating barriers to employment, housing, credit, jury duty, and voting rights;
  • Compelling more extensive training in racial bias across the system; 
  • Eliminating mandatory minimum sentences and enhancements;
  • Rejecting the death penalty.

Continue reading

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It does not matter if you believe a protective order was issued under false pretenses, or if the individual who requested the order has changed their mind about you: in the state of California, it is never a good idea to violate a protective order. If the order is on the books, a violation will result in serious consequences for you. 

What is a Protective Order?

Protective orders, sometimes called restraining orders, restrict one’s ability to contact a person or place.  A temporary order (TPO) is the first step and usually lasts 10-25 days. This gives the court time to examine the case in detail and decide whether an extended order of protection (EPO) is warranted. If granted, the order can last for five years or, in extreme cases, permanently.

Here in California, there are three main types of protective orders:

Domestic Violence Orders: A DVRO, sometimes referred to as intimate partner violence, is a behavior pattern that threatens the welfare of a current or former intimate partner. Individuals who have been the subject of domestic violence may seek a protective order as a means of keeping an abuser away. 

Civil Harassment Orders: These orders are issued to protect someone from harassment that may be related to property destruction or intent to cause harm to an individual. Protective orders may also be issued for stalking—tracking a person and causing them concern for their safety. People involved in these situations may be neighbors, teammates, work colleagues, classmates, etc. 

Criminal Protective Orders: These orders are typically issued at arraignment in criminal cases.

Penalties for Violating an Order

The first thing that could happen when you violate a protective order is that you will be arrested.  Even without a warrant, if officers have probable cause that there has been a violation, you are heading to jail. From there, it only gets worse:

  • Misdemeanor Charges: The first time you violate a TPO or an EPO, you could be charged with a misdemeanor, which could land you in the county jail for a year, in addition to having to pay a $1,000 fine.
  • Felony Charges: If it is a repeat offense or if the offense involved violence or weapons, felony charges could ensue, resulting in up to three years in state prison.

On top of these penalties, offenders will likely have to pay the victim’s attorney fees, restitution for damages, and be ordered into mandatory counseling for batterers. Continue reading

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Anyone who has been charged with a romantic grooming crypto scheme is looking at some harsh realities in terms of both legal penalties and social judgments. These schemes frequently target elderly individuals who are viewed as more vulnerable by predators, who coarsely refer to their operations as pig butchering. While the scammers are often part of large international organizations, players may operate locally, as well. 

How the Scams Work

Roughly $1 billion in annual losses occur due to these deceptive schemes every year, and they are becoming even more prominent as AI increasingly improves to make the scams seem even more real and convincing. They are very dangerous both financially and emotionally, since the transactions move extremely quickly, involve cryptocurrencies that many people do not understand well, and are irreversible. There are five basic steps to the process:

  • Love-Bombing: The goal is to create a quick emotional connection. Victims become bombarded with affection and compliments through their social media, dating apps, or texts claiming to be from wrong numbers.
  • Grooming: There is an attempt to build trust over the next weeks and months as the relationship grows. Now the scammer starts making false declarations about their romantic interest, and they boast about their career successes. 
  • An Investment Opportunity is Offered: The predator claims to have an inside track on an astonishing investment opportunity.
  • The Pig Butchering: Fake trading platforms are presented, and the victim starts to invest, often making marginal gains at first, so they feel comfortable making further and larger investments.
  • The Disappearing Act:  When the victim attempts to withdraw substantial amounts, they start to hear for the first time about taxes and fees in an attempt to preclude withdrawals, until the scammer disappears completely.

It is Here in California

According to the U.S. Secret Service, there have been tragic losses to these scams recently. In fact, in San Diego alone, over 400 victims have lost a combined total of roughly $90 million.

Penalties for Offenders

These scams generally involve significant amounts of money, often leading victims to real financial hardship. That is one reason they are prosecuted as felonies in California and typically carry significant penalties:

  • Federal charges;
  • Up to 20 years in prison;
  • Victim restitution and forfeiture of seized assets. 

Defending Against Charges

An experienced criminal defense attorney has several strategies available in their defense of these kinds of charges, including:

  • Demonstrating that you had no intent to defraud (you thought it was a good investment, after all);
  • Scrutinizing forensics in order to demonstrate that theoretically suspicious transactions were actually legitimate;
  • Proposing that since cryptocurrency regulations are ever evolving, they are difficult to interpret;
  • Establishing that even though you were involved in a project that ultimately proved to be fraudulent, you, yourself, were duped and had no idea of the salaciousness of the crime. 

Continue reading

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 After an arrest, you are likely chomping at the bit to get out of jail. Pretrial release may be an option for you depending on various factors. At any rate, having an experienced local attorney looking out for your rights can make a big difference in how things unfold. The options you are looking at range from paying a bond, being released on your own recognizance, or staying behind bars until your trial.

 Understanding Bail Bonds

 A bail bond is commonly used as a financial guarantee that a defendant will appear in court when ordered to do so. The amount of bail is determined by the judge, and a bondsman guarantees the bail amount after the defendant, or principal, pays the bondsman a non-refundable premium, or percentage of that bail, known as the bond. Usually, the bond is around 10% in California. The bail bondsman issues a surety bond to the court on your behalf, promising that you will show up to court. If you skip a hearing, the court declares the bond due, and the bondsman must pay up. They will then chase you down for the balance, which you forfeit.

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Every year, millions of dollars are lost to Medicaid fraud. The array of crimes connected to Medicaid Fraud is grounded in the misrepresentation of facts or the provision of false information to collect Medicaid payments. It can occur when organizations or individuals bill Medicaid for services they did not provide, change billing codes to get reimbursed for more expensive services, or receive kickbacks. The crimes are costly, as are the penalties for a conviction. 

What Constitutes Medicaid Fraud?

Medicaid fraud occurs in various ways. Knowingly defrauding any health care benefit program violates federal statute. In fact, even intentionally ignoring the truth in these matters can lead to criminal charges. The following crimes occur most commonly:

Offering deceptive information in order to participate in Medicaid;

  • Neglecting to sufficiently conduct medical screening for patients who are in labor or experiencing another emergency in a hospital emergency room;
  • Furnishing fabricated or deceitful information in an attempt to influence discharge decisions for a hospital patient;
  • Submitting claims to Medicaid for procedures, materials, or services that a patient either did not need or did not receive;
  • Performing one service, but billing for a more expensive one;
  • Billing two entities, such as Medicaid and another insurance company or the patient, for the same service 
  • Receiving money or paying money in exchange for referrals;
  • Neglecting to chronicle and return any mistaken overpayments from Medicaid within 60 days of discovering the problem;
  • Billing separately and at higher rates for services that should be combined into one lower price;
  • Misappropriating health care providers’ medical numbers or other identifiers;
  • Buying or selling Medicaid numbers;
  • Obtaining medical services or funds using someone else’s Medicaid name and number.

Penalties for Medicaid Fraud

Anyone facing charges of Medicaid fraud is looking at the possibility of extensive penalties that include:

  • Losing the ability to work with any federal government health care programs, including both Medicaid and Medicare, as a result of being put on the Office of Inspector General’s exclusion list. That could be career-ending for someone in the medical world;
  • The possibility of having one’s professional license revoked by the state medical board, which is another serious problem for nurses, physicians, pharmacists, and others;
  • Having assets linked to the crime, from vehicles to other property to bank accounts, seized by the government;
  • Civil fines of upwards of  $27,000 per infraction, along with  triple the loss to the Medicaid program;
  • Criminal fines of as much as $250,000;
  • Imprisonment for up to ten years per count.

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Criminal convictions come with grave penalties in the state of California, and no one is at greater risk of receiving serious penalties than non-citizens who reside in the United States. This is because a conviction for a serious crime can lead to federal deportation proceedings, even for permanent residents, those with asylum status, with visas, and with refugee status. It is critical that non-citizens have a vigorous criminal defense to have a chance at maintaining the life they’ve come to know here in the United States. 

Who are We Talking About?

Legally, those classified as aliens who are deportable for criminal offenses include anyone who is not a legal or naturalized citizen, including: 

  • Anyone living here on an expired visa;
  • Anyone who entered the country illegally;
  • Anyone with a current visa, asylum status, refugee status, or a green card.

Offenses that May Lead to Deportation

Federal removal proceedings can occur following a period of time in a federal ICE detention facility. ICE is tasked with reviewing the records of any undocumented individuals in order to determine whether the charges include either aggravated felonies or crimes of moral turpitude, both of which qualify as grounds for removal. Some of the most common aggravated felony convictions that could lead to deportation include, but are not limited to:

  • Crimes involving a minor, including sexual abuse, rape, and murder;
  • Offenses involving child pornography;
  • Domestic violence, including child abandonment  or neglect;
  • Trafficking of controlled substances;
  • Marijuana offenses—even when state law permits marijuana use;
  • Offenses relating to firearms, including trafficking of firearms or explosives;
  • Money laundering;
  • Theft, burglary, or receiving stolen property;
  • Kidnapping with a ransom demand;
  • Offenses relating to gambling and/or racketeering;
  • Offenses related to prostitution and/or human trafficking;
  • Fraud resulting in victim losses exceeding $10,000;
  • Counterfeiting a passport or other government document;
  • Obstruction of justice, including perjury, bribery of a witness, or other related charges.

What are Crimes Involving Moral Turpitude? 

While crimes involving moral turpitude are not clearly defined, they generally are understood to include a combination of inexcusable behavior and reckless conduct or deliberation. In other words, there must be clear evidence of reflection/forethought or intent to commit the crime, which often is a crime involving fraud of some kind. The government will have the burden of proving that the defendant acted with cunning in order to get a conviction, so rebutting these charges is crucial.

Other Things to Know

The definition of “conviction” extends beyond a verdict handed down by a jury when it comes to immigration issues. Guilty pleas and no contest (nolo contendere) pleas are also considered convictions, meaning non-citizens must be very careful as they weigh their options in these criminal matters.  Continue reading

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The anxiety is very real for anyone who has been in an interrogation room or on the witness stand and cannot provide basic details about a crime for which they are a suspect. It is clear that questioners doubt the veracity of the answers provided. Why is it that some people are completely unable to recall the type of vehicle, the style of clothing of others at the scene, or other important facts? Why can’t they remember? They were present, after all! While some prosecutors may view this inability to produce details as a sign of suppression or lies, there may be a more feasible explanation: aphantasia. 

Aphantasia: Understanding the Condition 

When a person can’t produce a mental picture of previous events, it may be because they have a condition called  aphantasia. This condition can affect anyone, irrespective of a person’s intelligence level, attention level, or degree of sincere effort to recall. It is a cognitive ability that is simply non-existent for about four percent of the population. Sufferers find that it is literally impossible to summon up an image of a scene, a person, or, in some cases, even the sequence of events relative to a particular experience. This is not a problem of merely having a bad memory. It is the inability to picture things in one’s mind and recall those things at will.

Why is it a Problem in Court?

The obvious drawback for individuals with this condition in a courtroom is that credibility is generally associated with accuracy and truthfulness, as judges, juries, and others evaluate. As such, a person who produces inexact or nominal details, whether as a witness or as a suspect, can seem unreliable, which can mushroom into unbelievable. When a judgment is made that testimony in an interrogation room or on the stand is coming from someone who is not credible, it can stain the entire case in a damaging way, with the ultimate possibility of generating a wrongful conviction.

Addressing Negative Impressions Caused by Aphantasia

We all know that it can be extremely difficult to change initial impressions. That is why it’s important for a defense attorney to recognize Aphantasia, educate the jury about its effects, and establish that typical law enforcement interrogations do not serve those with the condition very well. Reliability factors are flexible, so stressing the other strengths of a case that back a version of events in which the defendant’s account is believed is the goal. Above all, it is important to demonstrate to jurors that the lack of a visual memory is not tantamount to a lack of credibility. Building a defense, then, should lean more heavily on elements other than visual memory, such as:

  • Diagrams that order events for individuals who are spatial thinkers;
  • Timelines of events created based on known facts;
  • Calendar entries that might prod a defendant’s memory;
  • Receipts that can clarify questions of what, where, or when;
  • Time stamps, audio recordings, or video recordings;
  • Phone, email, and other digital records;
  • Anchors or routines of the defendant.

Continue reading

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There are times when defendants have occasion to use unique methods to address their criminal charges. One such method is called the Alford plea. It is a little-known approach that some defendants can consider under very limited circumstances. What is it, and when is it a good idea? 

What is the Alford Plea?

California law allows defendants who maintain that they are innocent despite significant evidence to the contrary to enter the Alford plea. It is similar to a nolo contendere—or no contest—plea, and the defendant may be convicted and sent to prison without ever having to admit guilt. It is useful for defendants who are afraid that the risks of a trial may be greater than the plea itself.

Advantages of the Alford Plea

  • Defendants may maintain their claims of innocence, which is an important goal for many who wish to have it recorded as such rather than plead guilty to lesser charges.
  • One key benefit of the Alford plea is that defendants have a relatively quick and inexpensive method of addressing their charges. They avoid a long and costly trial, along with the stress and uncertainty of a trial.
  • The Alford plea can lead to discussions of a plea bargain for those interested.
  • The uncertainties and apprehensions of a trial are minimized, eliminating a trial verdict.
  • Defendants can be sentenced without the ordeal and emotional disruption of a trial.
  • When there is a concern about being able to find an impartial jury, such as in high-profile cases, there is no need to seat a jury.
  • The exhibition of a court case is avoided, giving the defendant a discreet, more private resolution to the case.
  • Oftentimes, the judge may believe that a lighter sentence is appropriate than what a jury might choose.

Disadvantages of the Alford Plea

  • Although still claiming innocence, the defendant will nevertheless be sentenced, have a criminal record, and endure all the effects associated with that, from social disgrace to future challenges relating to employment and housing.
  • Some research suggests that defendants actually wind up with longer sentences when choosing an Alford plea compared to those who simply receive a guilty verdict.
  • Sometimes, defendants may feel pressured to take an Alford plea because they are so fearful of the case going to trial, even if it is not the best option for them.
  • When it ultimately comes time to petition for parole, it is possible that defendants may be viewed as lacking remorse because they’d maintained their innocence throughout the process.
  • The public may misinterpret the plea and be confused about the actual innocence or guilt of the defendant.
  • Victims and their families may find the outcome unsatisfying because they wish to hear a defendant take responsibility for the crime.

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SAN DIEGO OFFICE
501 W Broadway #800
San Diego, CA 92101
Phone: (619) 229-1870Fax: (760) 230-5888Toll Free: (888) 476-0901Email: dboertje@boertjelaw.com
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