Articles Posted in Criminal Defense

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When you have been arrested and charged with a crime, you may see your future as being bleak. Indeed, depending on the type of criminal offense you were arrested for and the surrounding details of your case, there may be significant and harsh penalties including expensive fines and many years behind bars. But sometimes, you can get out of having to go to jail by way of probation.

Often, a defendant will be more accepting of a deal if there are lesser charges than what they were originally facing and if probation instead of jail is included. While there are benefits to probation, there are also terms associated with your probation that you must follow because if you violate them you will find yourself heading back to jail.

Understanding your rights after an arrest and protecting your interests can be done with the help of the experienced San Diego criminal defense lawyer David M. Boertje.

Why Prosecutors Might Offer Probation

Typically, when a person is facing criminal charges that they have little chance of overcoming or having dropped, securing probation is the preferred next best outcome. While there are many people who know they dodged a bullet when being granted probation and because of this will abide by all the necessary terms, others have a more difficult time following the probation guidelines.

When a prosecutor knows that it will be an uphill and challenging task to get a conviction for the charges at hand, they may opt for an alternative way to resolve a case without going to trial. In these instances, it is common for the prosecution to offer probation as a part of the adjusted sentence.

But, the prosecution may have ulterior motives in offering such reduced penalties. Prosecutors that know they may not be able to get the desired outcome in court, and could use probation as a means to improve their chances of getting that conviction they want against you. 

For instance, if you are arrested and charged with felony possession of some type of controlled substance and you have a past history of arrests for illegal drug possession, there is the real possibility that you could be convicted. But if you actually never had the drugs on your person at the time of your arrest, and the drugs were only in your vicinity, a jury could also conclude that there is not enough evidence to show the drugs were yours and that you were going to use them.

So, instead of taking chances in court, the prosecution may defer to probation knowing that if left to your own devices, you will probably use those drugs while on probation. A simple drug test can show that you are using the drug and that you had the intent to control it. When this happens, you will be in violation of the terms of your sentence and now, the prosecution has the ability to send you to jail. Continue reading

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No one is without fault or perfect all of the time. We all make mistakes no matter how old we are. That being said, younger people with a less mature mindset and a more relaxed understanding of consequences in life, tend to make impulsive decisions moreso than older adults. 

According to a study out of the Saint James School of Medicine in The Netherlands, the full development and maturation of the brain happens at age 25. The prefrontal cortex is critical to behavioral performance. So, until the prefrontal cortex reaches its most mature state, younger adolescents are more prone to making poor decisions when it comes to their actions.

What Crimes Do Minors Commit the Most?

Even if minors are aware that they could be in legal trouble for certain acts, that does not mean that they can fully understand the scope of the punishment they could face. If your child was arrested for a crime, it is critical that they have the best legal representation fighting to protect them from the harsh penalties that could result from a conviction. A conviction can follow your child throughout their life and affect their quality of life as well as the opportunities to which they may have access. 

David M. Boertje is a San Diego criminal defense attorney that can help you and your child throughout the entire criminal legal process and fight to get the most favorable outcome possible for your child’s case.

Children are different and what one child will try or do another may not. Still, there are some crimes that are committed more commonly than others when it comes to youth. These include:

  • Assault and battery happen when a child threatens to physically harm and/or actually causes physical harm to another party. This often is the case with bullying and school violence.
  • Underage drinking is widespread across the country. According to the Centers for Disease Control and Prevention, this issue is a huge public health concern in the United States. Each year there are an estimated 3,5000 young people who will die in incidents related to underage alcohol consumption. In 2013, over 119,000 youngsters were hospitalized for conditions related to alcohol. 
  • Like alcohol consumption, drug use and distribution are also high in the youth population.
  • Theft such as shoplifting from a store or taking something without permission from a friend’s home happens with high frequency in younger individuals.
  • Vandalism or damaging property in some way whether it is via spray paint or breaking something, are acts in which young people will often participate.

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It can be incredibly stressful and scary to be put under arrest for a crime. But, when you did not commit the crime that you have been arrested for, you may feel even more uneasy, frightened, and worried about how things will pan out. And while the eyes of the criminal justice system in the United States are said to be blind, not every person who is arrested gets a fair and true outcome for their situation.

When an innocent person has to endure the harsh penalties associated with committing a crime, it is an outrageous injustice. This type of situation also becomes another blaring example of a system that does not always get it right all of the time. So, even if you were questioned with relation to a crime you did not commit or you were arrested for a crime you are not guilty of perpetrating, relying on the justice system alone to clear your name is not ideal. 

If you live in San Diego, even in these situations, partnering with an experienced criminal defense lawyer in San Diego is recommended to protect and safeguard your rights and interests. This is because you have rights as outlined in the United States constitution.

Why Do Innocent People Need Legal Representation?

It is a misconception that an innocent person has nothing to worry about when they are being charged with a crime they did not commit. Still, so many people believe that if they did nothing wrong, this invalidates their need to have criminal legal counsel. This belief could not be further from the truth, and the reality is that when you are arrested, guilty or not, you are taking a huge risk without having an attorney by your side.

While the system should be considering all people innocent until they are proven guilty, in real life, this does not happen all of the time. In fact, when a person becomes a defendant, or someone being tried for a crime, they typically are not treated as an innocent party while their case progresses.

For this reason and more, arming yourself with competent legal counsel is in your best interests. Your attorney will advocate for you, fight to protect your constitutional rights, identify errors and issues with the prosecution’s case against you, and find inconsistencies that can all show you are innocent. Or at least, that you should not be convicted because the evidence against you does not rise to the level of the legal standard that exists, “beyond a reasonable doubt.”

While you may feel like you are in a position in which you have to prove your innocence, the criminal justice system is not intended to work that way. It is supposed to be the job of the prosecutor to prove that you are NOT innocent. However, during criminal proceedings, it can be incredibly overwhelming. As a result, you may feel like you are the one who is tasked with taking on the legal burden of establishing your innocence. Continue reading

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Being aggressively questioned by the police can be stressful and intimidating, to say the least. Even if the alleged crimes that you are being asked about are those that you do not know anything about or have any involvement in perpetrating, police interrogations are quite draining and can be traumatic. 

This is why having an experienced and aggressive defender on your side is so important. What you say to the police can and will be used against you if it benefits their case. When you have a seasoned criminal defense lawyer with you during a questioning session, you will have the legal counsel you need to best protect your rights and keep you from unknowingly putting yourself in legal jeopardy. 

In San Diego, David M. Boertje is a San Diego criminal defense attorney who is dedicated to protecting individuals that are accused of crimes. David Boertje has extensive experience helping the aggrieved with the highest quality legal counsel and a resume that includes successfully handling thousands of criminal cases.

Lying and Law Enforcement

Police officers are trained to get the most information out of people they suspect either know about or were involved in the commission of crimes. This is their job and many officers do it very well. As such, police officers can engage in tricky tactics that are meant to confuse, dishearten, and pressure people into talking to them and answering their questions.

One of the things that an officer may do when they are interviewing you is lie. While this may seem unlawful, it is actually an acceptable practice. The reason that an officer will do this is to maneuver you into making an incriminating statement or providing details that implicate you and others for alleged crimes.

If you are brought in for questioning, it is critical that you do not go alone, but rather that you have the assistance of a lawyer. The San Diego felony defense attorney at the Law Offices of David M. Boertje can advise you of your rights and help you through a police interview so that you are safeguarded from saying something that harms your case.

It is not uncommon for a person to incriminate themselves even when they are completely innocent. One example is giving a false confession to a crime. This happens more than you may think. You are especially vulnerable to having this and more happen to you if you do not have an attorney by your side during a police interview.

It is not just lying that you have to be concerned about when you are interviewed. Police may attempt to scare you. They could make threats that prompt you to give them information or say something that is not true out of fear. Continue reading

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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

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Being questioned by the police is not a situation anyone would want to be in or one that anyone would envy seeing someone else enduring. Part of the job of a police officer is to gather evidence when they have probable cause and reasonable suspicion that a crime took place. Even if a crime did occur, if the police do not have grounds to take evidence or to question a person, what they uncover may not be admissible in court. As a result, the person who is arrested may have their case dismissed.

The police have many responsibilities and privileges that come with their position. But they also have protocols that must be followed to do their job. When they violate those guidelines, they can be held accountable to the person who was on the receiving end of their misconduct. This individual may be able to avoid criminal punishment as a result of errors in judgment by the authorities. Having an attorney who thoroughly understands the law and knows where to look to identify violations by the authorities can protect your rights and keep you out of jail.

Different Type of Questioning Categories Explained

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Seeing those lights flashing and hearing the sirens coming for you can be a distressing situation to be in for anyone. When the police pull you over or knock on your door, it is natural to feel scared, nervous, and unsure even if you have nothing to hide because you have not committed any crime. On the other hand, if you did do something unlawful, the level of your concern can be much more overwhelming.

It is important that if you are arrested or brought into the police station for questioning in San Diego that you have an attorney to protect your interests and safeguard your rights. It can be intimidating when the police are questioning you, no matter what your involvement is with a potential criminal situation. What you say can be used against you, which is why having the protection of a San Diego criminal defense lawyer is so incredibly important.

How Do the Police Get People to Give Them Information?

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When one person takes another’s life, legally, the incident is not always considered a homicide. Homicides occur when one party intentionally engages in a malevolent action against another party with the intent that it will result in the loss of life. Homicide is one of the most serious types of crimes with some of the strictest punishments. Manslaughter can be another charge that is associated with taking a person’s life. Being charged with manslaughter can also have hefty repercussions when a conviction takes place.

If you got caught up in a situation in which you took someone’s life, connecting with an attorney is critical. You have rights even when you are arrested and charged with a crime, and those rights deserve to be protected. Because of the severe penalties that can come with manslaughter charges in California, like years behind bars and thousands of dollars in fines, having dedicated and experienced legal counsel representing your interests is incredibly important to the outcome of your case. 

Types of Manslaughter 

Manslaughter is defined as taking another’s life without malicious intent. If you were charged with manslaughter, it is likely you sustained a specific type of manslaughter charge. This is because manslaughter is not a one-size-fits-all charge. There are actually three different categories of manslaughter with which you may be charged. The details of how your incident took place will be the key to determining which category in which your charges fall.

The following are three different types of manslaughter charges.

Voluntary

The actions that you took against another person were direct and intentional and those actions killed the other person but you did not have malicious intent on doing so. So, if you were violent and aggressive to someone else, but you did not mean to end their life, you may be able to avoid homicide charges in favor of voluntary manslaughter. 

An example of voluntary manslaughter would be having a heated fight with your friend. The situation elevates and you get into a physical exchange, resulting in the death of your friend. At the time, you were being violent because you were “in the heat of the moment.” In this case, you were voluntarily behaving in a way that was harmful to your friend, but you lacked the malice to kill them.

Involuntary 

When a person acts in a negligent and careless way and that results in the death of another person, involuntary manslaughter charges may be appropriate. In other words, your actions were not responsible, but you had no intent that what you were doing would cause anyone else harm let alone death. 

An example of involuntary manslaughter would include making a football team practice with too few water breaks under weather conditions that are blazingly hot. Or, handling and playing with a live gun and accidentally firing it.

Vehicular

If you caused a vehicular accident and others that you crashed into died, you may be charged with vehicular manslaughter. Examples of the leading causes of fatal car accidents are speeding, distracted driving, or drinking and driving. Continue reading

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People who witness a criminal act can respond in a variety of ways. It is possible that a person may decide to intervene and attempt to stop the crime from happening. Or, they may call local law enforcement and report it. Then there are those who may completely ignore it and take no action. A common question people have is if they see a crime happening, are they legally required to report it? In general, you will not be subject to legal repercussions if you do not report a crime, but there are some situations in which you could be. 

When are You Required to Report a Crime?

There are several instances in which you can forgo reporting a criminal act that you have knowledge of and remain free from the heavy hand of the law. That is to say, not reporting a crime is not always a crime itself and therefore, not punishable. But there are exceptions to this.

One way that your knowledge can be criminal is when you are aiding and abetting a crime. Even if you did not commit a crime, if it can be shown that you have aided and abetted a criminal action, you are now liable for potential charges. 

Under California’s parties to crime laws, when you have taken action that helped another party carry out a crime, you will be considered an aider and abettor. The actions that would deem you as such include:

For instance, maybe you helped cover up a criminal act or you provided assistance devising its plot but when the crime was committed you physically were not there. You are still implicated in the criminal act and can be charged.

Another instance in which you may suffer negative legal consequences when you have knowledge of a crime is if your job requires you to report incidents of child neglect and abuse. Professions that are under this mandatory duty include teachers, social workers, and firefighters.

Knowing about child abuse happening or simply having a reasonable belief that it is happening even if you do not have concrete evidence, means you must report it. There is also a time requirement for specific professionals to make these reports. Fines and jail time are realities that can come from failing your responsibility to preserve the welfare of children.

Last, federal laws make a failure to report felony federal offenses a crime. You would be considered to be obstructing justice and if convicted, fines and jail time can ensue. Continue reading

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The vast majority of people in the United States have and use their smartphones for many things including making calls, taking pictures, and sending texts. In fact, it is estimated that 300 million Americans have a smartphone. What that means is that as high as 90% of the entire United States population has a smartphone at their disposal.

The ability to connect with each other is incredibly easy due to the widespread presence of these multifunctional handheld devices. This is typically a good thing, but in some cases, the ease at which one can circulate virtually any type of information could also be highly problematic. This is especially so if what is being sent out is sexually explicit.

Is it Unlawful to Sext?

If you have sent a text that had a video or a picture that was sexual in nature, then you have sexted. In the state of California, there are no laws on the books that prevent people from sexting. There is nothing criminal about two consenting adults sending each other sexual texts. But, in other circumstances, what is texted out from your phone could lead to some type of sexual offense charge.

For example, if you have been sending sexual texts to a minor that can come with serious legal implications. People that are sending inappropriate, sexual texts to minors can face punishment under California’s child pornography laws. There is no tolerance for this type of activity in the state. It is illegal to send any of the following:

  • Sexual matter to a minor that is meant to motivate the child to respond by engaging in sexual acts.
  • Sending anything that is considered child pornography to anyone. Any media that shows a person who is under the age of 18 doing sexual acts is child pornography.
  • Knowingly be in possession of lewd and pornographic matters that involve children.

It is possible that your sexting can be a reason for your arrest and charges of either a felony or misdemeanor crimes. If you are charged at the misdemeanor level, then you could face up to a year in jail, hefty fines as high as $1,000, and informal probation. Felonies have much harsher penalties. Felonies can result in jail time up to five years, potentially a $10,000 fine, and formal probation.

It is not just fines and jail time that a conviction carries. Also, people that are charged with certain sex crimes will be required to become registered sex offenders. Once you are deemed a registered sex offender, as long as you reside in California you will have to keep this registration current. In other words, every year you will have to register. Continue reading

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