Criminal Defense

December 6, 2024

Common Misconceptions About Being Criminally Charged

If you have been charged with a criminal offense, you know it is a jarring experience, even if you are innocent—or maybe especially if you are innocent. Some may tell you not to fret—the truth always wins out in the end. But the fact of the matter is that innocent people are convicted of crimes and locked up every single day across this country. What you need more than anything at this point is a hard-hitting, straightforward criminal defense attorney fighting on your behalf.

Don’t Buy it!

Law enforcement is legally allowed to mislead—aka lie—to you in order to squeeze information out of you. So just because they tell you something, it doesn’t mean it’s grounded in fact. Additionally, television may have left you with some misconceptions. For example:

If you are not read your Miranda Rights before being interrogated, a recent Supreme Court decision determined it is not a violation of a constitutional right. Instead, it violates a constitutional rule, which means you can never collect damages for violations. It turns out, sadly, that Miranda Rights are not all they are cracked up to be.
Officers may say that things will go well for you if you just cooperate, but that is not necessarily the case. Never say anything without your attorney present because whatever comes out of your mouth could be twisted out of context and used against you later.
You may be told that there is clear and damning evidence and/or testimony implicating your guilt. But police could be a police fantasy story! Don’t fall for it!
Police may say that if you just confess, things will get easier for you. Of course, never, never make a verbal or written confession without the advice of your attorney. You just can’t know how binding any deal the police offer you will be without your lawyer there.
Perhaps you will be told that if you just cooperate, you will be home in a snap. Don’t count on it. Unlike the fast-paced cases that occur every week on your favorite crime-drama TV show, once enmeshed in a criminal case, it could be a very long time before you are in the clear.
After charges are filed, you may think that they can be rapidly and effortlessly dropped, but in truth, the whole thing must go through a court process, which can take time.
You may believe that since you are innocent, going to trial is your best option–no matter what. In fact, with a trial, there will be costs in money, time, stress, and worry, and after all that, you still may be found guilty. In some cases, a plea deal is a good option, so listen to your attorney before making any decisions.

November 29, 2024

Accused of Being a Porch Pirate?

by David M. Boertje

All across the country, packages are stolen from doorsteps and porches at an alarming rate—particularly around the holidays. But with cheap, easy access to home security available to homeowners these days, more than a few porch pirates have been caught skulking around where they don’t belong, which has led to more arrests for thefts. If you have been caught up in this kind of scenario, you may be in the market for an experienced criminal defense attorney.

Porch Pirating Facts

Package thieves–nicknamed porch pirates in reference to their penchant for plundering from unsuspecting online consumers—swipe packages from yards, porches, and doorways to the tune of billions of dollars, which is more than a little problematic and maddening to the public and to the police charged with addressing local crime. Some noteworthy facts on the issue include:

$12 billion in merchandise was stolen from porches and yards last year.
One out of every four citizens– 58 million people—were victims of porch piracy and lost packages in 2023.
Apartments dwellers are twice as likely to be hit by porch pirates than those who live in houses.

Precautions That Help

With the rise of porch pirates, many have started to take steps to protect their purchase, including:

Installing motion-detector lighting;
Installing doorbell cameras and other security cameras;
Having neighbors keep an eye out for deliveries and/or strangers.

California Law

California law punishes individuals for stealing packages and selling stolen merchandise. The penalties depend on the value of the merchandise taken. Thieves could face time behind bars, as well as fines.

Defending Charges

If you have been charged with stealing packages from others, there are a number of possible defenses worth considering:

It was a misunderstanding: The package was in a public area and you thought it was intended for you;
It was a case of mistaken identity: They got the wrong person;
There was no criminal intent: You did take the package but legitimately thought it was yours (more likely in an apartment scenario);
The arrest involved a violation of your rights: Perhaps there was an improper search and seizure, or you were not read Miranda rights.

November 22, 2024

When You are Pulled Over for a DUI

by David M. Boertje

You see those flashing red and blue lights in your rearview mirror, and you are hoping someone else is being pursued. But your stomach drops when you realize that it is you that the officer is interested in. It is stressful enough to be pulled over—and the panic really escalates if you have had a drink or two before getting behind the wheel. What should you do?

Keep Your Head on Straight

Clearly, you need to pull over; do not even entertain the idea of trying to outrun the patrol car. Do it as quickly and as smoothly as possible, signaling your intent. After you are safely on the side of the road, turn your ignition off, roll down your window, and prepare to talk to the officer, keeping your hands visible at all times. As the officer approaches, remind yourself that a little politeness goes a long way. Obey the officer’s request to see your license, registration, and insurance cards. If you are asked about where you have been, where you are going, or whether you have been drinking, respectfully assert your right to remain silent. If things seem to escalate, tell the officer you would like to have an attorney present for any further questioning.

Breathalyzer or Blood Tests

California’s implied consent laws require drivers to comply with an officer’s request to administer a test to determine your blood alcohol level. First, they will likely want to conduct a field sobriety test. If you choose not to cooperate with the request for a blood test, urine test, or breathalyzer, it will likely lead to your arrest. It could also result in the revocation of your driver’s license, the installation of an ignition interlock device in your vehicle, and potential charges. Ostensibly, you were pulled over for some sort of recklessness, so even if you cannot be charged with DUI, reckless driving could be its own nightmare. Additionally, it is possible for police to obtain a warrant to get the blood draw.

After an Arrest

If the officer chooses to arrest you, do not forget to be compliant and again request the presence of an attorney before answering any questions. You could be facing some severe consequences, including increased insurance rates, community service, fines, DUI school, and even time in jail. A conviction can definitely have long-term consequences since you will have a permanent blemish on your record, which could affect employment opportunities and more. Continue reading

November 15, 2024

Criminal Charges of Elder Abuse

by David M. Boertje

You think you have seen it all as an employee in a nursing home; patients with all kinds of problems come in, and an exhausted staff relying on inadequate resources is expected to address the many needs of multiple elderly residents. There is no question that things could be better. But are you personally liable for the situation when things get really bad?

Case in Point

Squalor, emaciation, and dehydration: those were the words investigators and the Attorney General’s office used to describe the conditions of a care facility in Riverside, California. The facility, which was unlicensed, lacked the staff and equipment necessary to provide adequate care for the disabled residents. Workers there were criminally charged and will be going to prison.

It is Criminal—Literally

While nursing homes like this are often sued for damages to address the harm inflicted on their residents, many people don’t realize that criminal charges may be applicable, as well. In California, elder abuse can result in substantial fines and time behind bars.

Offense	Fines	Incarceration
Failure to report	$1,000- $5,000	6 months – 1 year
Disregarding health codes	$2,500	180 days
Willfully threatening/causing fear	—	1-3 years
Financial Abuse	$1,000-$10,000	1-4 years
Willful negligence	$1,000	6 months
Willful negligence likely to result in injury or death	$6,000	1-5 years
Sexual assault	—	1-10 years
Murder	—	25 years- life or death penalty

Signs of Elder Abuse

Elder neglect/abuse may be difficult to see right away, but the symptoms tend to reveal themselves with time. Some of the most common issues might include:

Burns, bruises, scars, or other indications of physical abuse that suggest physical punishment or forceful restraint;
Unclean or hazardous conditions;
Dirty hair or clothes, poor dental hygiene, or other evidence of neglected personal care;
The absence of necessary items such as hearing aids, glasses, or walkers;
Depression, anxiety, and other distinct changes in affect;
Bedsores, dirty diapers, and other indicators of derelict hygiene;
Fear of being left alone or being approached by certain individuals;
Perplexing changes to spending habits, banking patterns, or wills/trusts;
Evidence that medications have been improperly administered;
Rocking back and forth or otherwise displaying signs of trauma.

November 8, 2024

The Difference Between Dropped and Dismissed Charges

by David M. Boertje

If you are facing criminal charges, you may be hoping that charges will be dropped or dismissed, eliminating the tension and cost of a trial. While plenty of defendants are not so lucky, it is certainly a possibility in many cases.

Dropped and Dismissed Charges are Not the Same

There is a distinct difference between having charges dropped and having them dismissed:

Dropped Charges: Charges may be dropped at any time during a case if a prosecutor loses confidence in their chances of winning. Even if charges have not yet been officially filed, they may be dropped.
Dismissed Charges: Charges can only be dismissed after they have been filed, and this must be done by a judge.

Why Might Charges be Dropped or Dismissed?

There are plenty of reasons that a case might not make it to trial and a verdict. Some of the most common scenarios include:

A strong case cannot be developed with the evidence currently available, so proof beyond a reasonable doubt is unlikely.
A victim may request that the charges be dropped and refuse to cooperate with the prosecution, weakening the case.
There could be errors in the criminal complaint.
The prosecutor may lack the resources to pursue the case.
The defendant may be exonerated based on new evidence– even after a conviction.
Information central to the case may have been illegally obtained and is therefore inadmissible.
The rights of the suspect may have been violated—such as through an illegal search or failure to Mirandize, leading to a decision to drop it.
A plea deal may have been negotiated between the prosecution and the defense that drops certain charges in exchange for a guilty verdict or cooperation in testifying against others.
Venue issues may lead to dropped charges.
A Plea in Abeyance may be offered, requiring rehabilitative classes, for example, in exchange for dropped charges (although failure to complete the requirements would result in a mandatory guilty plea on the charges).

Is it the Same as Being Acquitted?

Having charges dropped or dismissed is definitely not the same thing as getting an acquittal. In the case of an acquittal, a judge or jury found that there was not enough evidence to convict the defendant. That means the defendant can never be retried on those charges—that would be Double Jeopardy. Conversely, if the charges were simply dropped or dismissed, the prosecutor could refile the exact same charges at a later date when they believe they have a stronger case.

What Appears on My Record?

Both dismissals and acquittals will appear on one’s criminal record unless the record is expunged. Of course, neither will have the crushing impact on employment or housing that a guilty verdict has. Continue reading

November 1, 2024

Contempt of Court Charges

by David M. Boertje

Tyrese Gibson—known for his role in the Fast & Furious franchise– purportedly failed to adhere to a court order requiring more than $70,000 in back child support to be paid. As a result, he was found to be in willful contempt of court. It was the third such hearing, and this time the judge required Gibson’s detainment until the payment was made. Contempt of court is a common charge and one that can result in certain penalties depending on the situation.

Criminal Contempt of Court

When someone disobeys a court order or angers a judge, it can result in contempt charges. It is a criminal matter when criminal penalties are associated with the charges. While the majority of court proceedings occur without incident, there are certain actions that could lead to these charges, including making a disturbance in the courtroom and insulting a judge. Contempt may be either direct or indirect:

Direct Contempt: Direct contempt is up close and personal and occurs within the courtroom, generally involving behaviors that aggravate and/or insult the judge. Charges of contempt could be leveled against courtroom spectators, witnesses, attorneys, and even jurors. Actions that could result in such charges include:

Remaining seated as the judge comes into the courtroom;
Attending court while under the influence of alcohol or drugs;
Quarreling/yelling in the courtroom;
Intimidating others with threatening gestures, scowling, and/or threats;
Lying while under oath;
Using profanity to the point that it disrupts the proceedings.

Indirect Contempt: While direct contempt of court is linked to activity inside the courtroom itself, indirect contempt, also known as constructive contempt of court, is based on actions outside of the courtroom, like in the case of Gibson. He’d been ordered to make payments and allegedly did not comply. Other examples of indirect contempt include:

Missing a hearing;
Breaking probation requirements;
Refusing to turn over subpoenaed evidence;
Improperly making efforts to communicate with one or more jurors;
Endeavoring to bribe jurors or court workers;
Ignoring instructions in a protective order.

Penalties in the Golden State

Disrespect of the court offends judges and the judicial system and could lead to penalties, including fines of up to $1,000 and up to six months in jail, on top of attorney’s fees and other expenses in some cases. In situations where the court requires a particular action, like, say, testifying or providing evidence that has thus far been denied, the offender could be jailed until they agree to comply with the court order. Continue reading

October 18, 2024

Texas Case Brings Shaken Baby Syndrome Into Spotlight

by David M. Boertje

Alarm bells ring when a baby dies. In this nation, some estimate that anywhere from 1,000 to 3,000 children experience shaken baby syndrome (SBS). One-fourth of those children eventually die, and the rest suffer from lifelong debilitating issues, including seizures, behavior and learning issues, hearing loss, blindness, cerebral palsy, and paralysis.

Is the Science Solid?

The quest for an explanation is ravenous after the death of a child. While there are many pediatricians who stand by SBS diagnoses, it must be noted that the American Association of Pediatrics (AAP) has backed away from it, stating that both legal and medical authorities had misinterpreted it. What is that about?

The Stance of the AAP

According to the AAP, there are many conditions that can cause the symptoms associated with SBS. Norman Guthkelch–the neurosurgeon who developed the theory of SBS– believed it had been misinterpreted. For him, it was merely a suggestion to parents on how to prevent childhood injuries. Currently, many doctors agree that there are myriad issues that can cause the symptoms of SBS. Never had Dr. Guthkelch envisioned that the diagnosis would lead to the imprisonment of innocent parents who were grieving their injured or dead children. To date, there have been 32 exonerations of people who had formerly been found guilty of SBS. Will the very public case of a death penalty inmate in Texas be the 33rd exoneration?

A Recent Case

A man’s infant daughter died after experiencing brain swelling, bleeding behind the eyes, and head bruising. The diagnosis at the time was SBS, even though the man claimed the baby had fallen from a bed. He took his daughter to the hospital and raised suspicions with hospital staff with his lack of emotion. It was just one of many factors that led to a guilty verdict and the death penalty sentence he received. (It was later discovered that the man was autistic, explaining the lack of emotion). More than two decades later, the lead detective in the case says that alternate theories to SBS were never considered or investigated. The man’s attorneys report that the baby had pneumonia at the time of her death, and it had become septic. She suffered numerous other health issues that may have contributed to her death, as well. A bipartisan group of lawmakers in Texas is calling for clemency for the man, and only time will tell how it unfolds for him.

California Law

When a parent or caregiver is accused of Shaken Baby Syndrome in California, they may be charged with child abuse, murder, or attempted murder. These charges could put an offender behind bars for decades. Continue reading

October 11, 2024

Stay Out of Legal Trouble Related to Voting

by David M. Boertje

Even though you thought you were just being patriotic when you chatted up fellow voters, now you have been arrested and charged with voter intimidation. What is voter intimidation, and what should you do about these charges?

Voter Intimidation

U.S. code defines voter intimidation as any combination of coercion, threats, or intimidation of someone else in an attempt to interfere with that person’s right to vote for the federal position or candidate of their choice. It is a federal offense and could land offenders behind bars. But what does voter intimidation look like in practice? Some examples include:

Obstructing someone’s access to a polling place;
Using verbal or other threats in or around a polling site;
Questioning, pursuing, or otherwise disrupting voters;
Grilling a voter about their voting authorization, including questioning their citizenship and/or criminal record;
Lying about or misconstruing the rules related to voting requirements in an effort to dissuade people from even attempting vote;
Soliciting personal information from potential voters in phone calls, flyers, or in person.

Who Can Be Poll Watchers?

Poll watchers oversee polling sites and ballot counting locations with the goal of keeping election work honest and transparent. In California, these individuals:

Sets up/closes down polling locations;
Protects voting equipment/ballots;
Helps voters understand voting rights;
Must be a legal permanent resident of U.S. citizen;
Could be a high school student who meets these qualifications:

Is a U.S. citizen;
Has a GPA of 2.5 or higher;
Has permission from their parents/guardians.

Restrictions on Poll Watchers and Election Observers

Although poll watchers are allowed to observe the behavior of both voters and officials, they are prohibited from certain activities. Clearly, they are not allowed to intimidate or threaten voters. Additionally, they cannot:

Interfere with the voting process;
Promote any political position, candidate, or party;
Wear campaign paraphernalia or clothing;
Wear law enforcement, private security, or peace officer uniforms;
Physically touch voting materials, furniture, or equipment;
Converse with election officers;
Without permission, attempt to enter a secure area;
Speak with voters about their vote or their eligibility within 100 feet of a polling site;
Talk to workers or otherwise interrupt the work in the central counting location;
Challenge the process or decisions made by election officials;
Photograph or video voters coming and going from polling places.
Look at a voter’s ballot, choices, or personal information.

Penalties for Voter Intimidation

If found guilty of interfering with the work of election officers or voters who are exercising their legal right to cast a ballot, section 1170 of the Penal Code allows for imprisonment for up to three years. The same goes for tampering with voting materials or equipment and attempting to discourage someone from voting. Continue reading

October 4, 2024

When Domestic Violence Victims Have Had Enough

by David M. Boertje

A woman confided in her brother about her husband’s threats and abuse. They mulled over various ways to eliminate her abuser, who had dragged her through dog feces, gripped her hand in order to break the glass she was holding, causing the shards to slice her hand, pulled her hair, and punched her. Worse yet, he had threatened to murder their two children when she left him once. The woman had twice called the police to report the domestic violence but discovered that officers appeared unwilling to do anything more than advise the couple to work out their problems. That led the woman’s brother to take matters into his own hands, and after some friends lured his sister’s abusive husband to a remote site, he shot and killed the man. Both the abuse victim and her brother went to prison with life sentences. That was in 1984. The brother died in prison. The woman is still there.

The Castle Doctrine

Four decades later, not a lot has changed when it comes to women killing their abusers. The castle doctrine– a 17th-century law that embraced its European homeland– gives any man the right to protect himself and his property—which includes his wife and children– when attacked. When not within the confines of his home, conversely, a man was expected to retreat when attacked. But that all changed in 1876 with the development of the true man doctrine. It stated that a “true man” would never retreat from a conflict. This developed into states creating stand your ground laws in 2005. Such laws give people in some states the right to defend themselves in their homes, cars, hotel rooms, and so forth when under attack, as well as in public spaces. However, in California, public spaces are a different matter, and retreating is required if lethality is not necessary. At any rate, these laws were not written to apply to domestic violence situations because both individuals in a home have the right to be there. In other words, one can protect oneself from dangerous threats originating from outside the home but not from those spewing up inside, where victims of domestic violence are at the greatest risk.

September 27, 2024

Mistakes to Avoid When Dealing With the Criminal Justice System

by David M. Boertje

After an arrest, many people find themselves feeling so alarmed that they just cannot think straight. But it is important to hold it together because mistakes in this situation can be costly. Try to think logically, and keep these tidbits in mind.

Cooperate, while remaining silent until you have contacted your attorney. It is NEVER a good idea to resist arrest or actually try to run away from police.
Call your attorney immediately. Police clearly suspect you of committing a crime, and having your attorney by your side is critical to having your rights protected.
Do not speak. Remind officers (politely) of your Fifth Amendment rights. You are not required to answer any questions before your attorney arrives because anything that you tell them could ultimately be used to make a case against you. Resist even casual conversation that might seem unconnected to the case at hand. You should not try to explain or defend yourself at all. The only things you should consider asking is if you are free to go, or if you can call your attorney. Period.
Limit what you share about the case with friends and family. They may later be called to testify in the case, so whatever you disclose could wind up being discussed in a courtroom at some point. Do not put them in a position where they may have to share information that could hurt your case.
Do not post anything on social media sites that could suggest a negative character or lifestyle. You just never know what might be used against you later on. Do not post anything about the case at hand.
Do not contact your accuser. Do not try to apologize or clear up any misunderstandings. If they try to contact you, shut it down and let your attorney know.
Show up for court on time, appropriately dressed, and with the right attitude. Anything less might be interpreted as a sign of disrespect for the judge and/or the judicial process. Any belligerence, cockiness, or general disrespect on your part could lead to contempt of court charges. That will only make matters worse—and could even mean fines and/or jail time.
Do not try to get rid of potential evidence. You do not want police going through your garbage cans and finding something that could be incriminating—it is a great way to get additional charges added related to trying to destroy evidence.
Be straight with your attorney. A good criminal defense attorney will fight for your rights, but that is tough to do if you hold back relevant information. When the prosecution surprises your attorney with facts, it is incredibly difficult to achieve positive outcomes.