Criminal Defense

June 27, 2019

Four Ways You are Committing Insurance Fraud

According to the California Department of Insurance, insurance fraud occurs when someone knowingly lies to obtain a benefit or advantage to which they are not otherwise entitled. Insurance Fraud also occurs when an insurance company knowingly denies a benefit that is due and to which someone is entitled.

Other than tax evasion, the National Insurance Crime Bureau (NICB) identifies insurance fraud as the second most costly crime in the country. You may ask yourself, “Why would anyone want to commit insurance fraud?” The answer is simple – for financial gain. Two examples of insurance fraud include:

report of a San Diego dentist facing 75 felony counts of insurance fraud after allegedly collecting false claims for root canals she never performed.
An article about a Yorba Linda man being charged after using stolen identities to receive unemployment insurance benefits.

There are different laws that apply to insurance fraud in California. These laws state:

Anyone who willfully injures, destroys, abandons, or disposes of any insured property with intent to defraud the insurer can face jail time up to five years and fines of up to $50,000.

Anyone who solicits, accepts, or refers business with the intention of defrauding an insurance company can face up to three years in jail.

Anyone who commits any of the following act can be found guilty of either a misdemeanor or felony crime and face up to five years in prison:
- Makes or aids in making a false insurance claim;
- Makes several claims for the same injury or loss;
- Knowingly cause an auto accident with the intent to collect insurance money;
- Knowingly file a false or fraudulent medical insurance claim with the purpose of collecting money; and
- Submit information to support a false or fraudulent insurance claim.

As you can see, there are several categories of insurance fraud — auto, medical, and property. Today, we will focus on auto insurance fraud, which is the most common type of fraud in California.

Auto Insurance Fraud and California Law

Auto insurance fraud is defined as any criminal fraud that involves auto insurance. If you are intentionally performing the four acts below for personal and financial gain, you are committing auto insurance fraud in California.

Abandoning or Damaging Your Car: When you leave your car somewhere or use other methods to dispose of your vehicle, you are committing auto insurance fraud. The same goes if you are burning your car, dumping it in the river, or developing other ways to damage your property.

Providing Insurance Agency with False Information: If you’re giving the insurance company the wrong registration information, you are committing auto insurance fraud. Insurance companies base the price of premiums on location, and if you are scheming to avoid paying higher premiums for your own personal financial gain, you are defrauding your insurance company. In the end, you are cheating yourself and other members of the general public.

Filing Multiple Claims for the Same Car Accident: You are committing auto insurance fraud by making more than one claim to the same insurance agency or filing claims with different agencies with hopes of recovering financially.

Filing False Auto Insurance Claims: If you are faking auto accidents or even exaggerating an incident so you can file a false auto claim, you are defrauding an insurance company. As a result, you are committing auto insurance fraud and could face charges.

June 21, 2019

Handling a Job Search With a Criminal History

by David M. Boertje

Job searches are a challenge for everyone. Between completing applications, submitting resumes, and having many interviews, the job hunt is not an easy task. Having a criminal history while searching for a job creates a unique set of barriers that can prevent people from gaining employment after re-entering society.

California has taken an active approach to the barrier in adopting the “Ban the Box” law. This law places limits on an employer’s inquiries into an applicant’s criminal history.

If you are facing issues while searching for a job with a criminal history, we have gathered some information to help guide you on your journey.

Request a Copy of Your Own Record

Although access to criminal records are usually restricted to law enforcement and other authorized agencies, the State of California Department of Justice will allow you to request a copy of your own record for purposes of accuracy and completeness.

Take some time to review your own criminal record and become familiar with what it contains. You do not want surprises because of what may appear on your record during your job search.

Be Aware of Your Rights

The Fair Chance Act (AB 1008), also known as “Ban the Box”, went into effect on January 1, 2018 in California. The Act prohibits employers with five or more employees from asking about your conviction history. Under this law, an employer may not request or consider an applicant’s criminal history until after making a conditional offer of employment.

Because of the Fair Chance Act, employers are prohibited from asking about your conviction history when making an employment decision. Even if the job application itself asks whether you have been convicted of a crime, the potential employer is breaking the law.

This Act is important for you to know because it ensures that you are fairly considered for jobs. While California is providing strong protections for job seekers with a criminal history, some applicants are still facing problems because of their criminal records. According to a Mercury News article, some employers are not heeding the protections that are in place.

Clear Your Record

Imagine telling a potential employer that you do not have a conviction. With a record expungement, this is definitely a possibility. An expungement is a request from an individual, to the court, to destroy or seal a criminal conviction from state or federal data storages.

An expungement will allow you to leave your criminal history behind. It will also provide you with peace of mind and confidence during your job search. If you want to clear your record, a knowledgeable expungement attorney can assist you with the record expungement process. Continue reading

June 13, 2019

No-Knock Raids in San Diego

by David M. Boertje

There are restrictions issued to law enforcement officers on when and how they can execute a California search warrant. Nonetheless, mistakes and errors can and do occur during the execution of warrants. Unless a search is authorized by you, incident to a lawful arrest, or some other exception provided by law, a valid search warrant must be obtained before the search is conducted. Any violation of these rules may result in a reduction in your criminal charges, dismissal of the evidence unlawfully obtained, and even dismissal of your criminal charges.

A search warrant allows the police to search you, your home, your car, and your place of business. The police can even search an area suspected of containing evidence of illegal activity so long as it is specified in the search warrant.

Storming into homes with guns, protective armor, lights, dogs, and law enforcement personnel, usually during the early dawn hours, catches everyone in the home off guard and leads to avoidable deaths, unnecessary injuries, and costly legal settlements with survivors.

In a December no-knock drug raid in Houston, two suspects were shot and killed and five police officers were injured. Even the family pet was shot in the crossfire. The pet survived, but both of his owners died. The results of the raid were so bad that the Houston Police Department no longer conducts no-knock raids during low-level criminal investigations of a nonviolent nature.

No-Knock Warrants

A no-knock warrant is issued by a judge and gives police permission to enter a property by force without prior notification to its occupants or requesting their permission. These types of warrants are often precipitated by a tip from an informant. The informant is the person who cooperates with the police and provides information about the people or companies under criminal investigation. The use of informants is common in criminal investigations, especially those involving illegal drug sales and distribution. So long as the informant’s information is reliable, it will satisfy a low threshold to support a finding of probable cause to issue the search warrant. The judge may inquire about the identity of the informant, examine past instances when the informant assisted law enforcement and the results of such cooperation. The police will also be called in to testify and corroborate the informant’s testimony. Continue reading

June 6, 2019

Will the THC Blood Test Show I Was Impaired?

by David M. Boertje

Absent the distinctive scent associated with smoking marijuana, how can the police determine if you are driving your vehicle under the influence of marijuana? Marijuana use for personal consumption is legal in California. It is illegal, however, to drive under the influence of marijuana in California.

Field Sobriety Testing

When the police stop a driver under suspicion of driving under the influence of alcohol or drugs, including marijuana, but cannot readily observe marijuana use, they may request that the driver participate in field sobriety tests to determine if he or she is impaired by alcohol or drugs.

Generally, a suspected impaired driver may be asked to perform a series of the following tests:

The one-legged test requires you to stand on one leg for a period of time. If you are able to do so, you pass this test.
The walk and turn test requires you to walk in a straight line. You are evaluated for balance, staying on the line, walking and stopping, and following directions. If you are able to remain on the line walking as instructed, you pass this test.
The horizontal gaze nystagmus test, also known as the HGN test, requires you to follow the gaze of the police officer’s finger or an object in the police’s hand. You are evaluated for compliance with the instructions and the nature of your eye movements. If you are able to follow the gaze as instructed, you pass the test.

If you fail the field sobriety tests, the police have probable cause to arrest you under suspicion of driving under the influence of marijuana.

Chemical Tests

Every time you drive on California’s roadways, you have already consented to submit to a chemical test if asked to participate in one by law enforcement. Once in police custody, law enforcement may require you provide samples of your blood, breath, or urine to conduct chemical tests. With respect to marijuana use, the tests would measure the presence of THC, the active ingredient in marijuana to support the DUI (marijuana) element of the charge. As of the Spring of 2019, there is no breath technology that can measure THC in a person’s breath in use by San Diego’s Police Department. All three tests are less able to measure THC as time passes.

Cotton Swab Tests

In San Diego, police at DUI checkpoints may use a cotton swab to collect a saliva sample from a driver. The cotton swab test can detect the presence of THC as well as crystal meth, methadone, cocaine, and some prescription drugs.

Charged with illegal use or possession of marijuana or driving under the influence of marijuana in San Diego? Hire a knowledgeable and experienced San Diego criminal defense lawyer to help you resolve your case. Continue reading

May 31, 2019

Recently Cited for DUI? Avoid These Three Mistakes

by David M. Boertje

With Memorial Day in our rear-view, we have entered what law enforcement calls the 100 dangerous days of summer on the roads. According to California Highway Patrol (CHP), there were 1,099 DUI arrests made in California this past Memorial Day weekend, averaging 14 arrests per hour. This is a 4% increase from last year.

In an article by Times of San Diego, the CHP reports that while DUI arrests are down from last year, it is still a huge safety concern for California residents throughout the summer. Now that you are aware of the statistics, let us take some time to explore what a DUI is and what California law says about DUIs.

DUI and California Law

DUI is the acronym for driving under the influence. A DUI is simply the act of operating a motor vehicle while under the influence of drugs or alcohol. California Law states it is unlawful for a person to operate a vehicle if he or she is:

Under the influence of any alcoholic beverage.
Addicted to the use of any drug.
Under the influence of any drug.
Under the combined influence of any alcoholic beverage and drug.

If you were recently cited for DUI, this can be a frightening time. With help from Boertje and Associates, you can avoid three mistakes people usually make when they receive a DUI citation.

Speaking Up at the Wrong Time

Being cited for DUI can be overwhelming. During this time, you may be upset. Naturally, you will want to speak up for yourself and tell the officer your side of the story about what happened. At this point, you are so shaken up that you may have forgotten about your constitutional rights. You do have the right to remain silent, remember? Save yourself a headache and do not make the mistake of speaking up for yourself at the wrong time.

Ignoring the DUI and Wishing it Away

Whether this is your first DUI offense or not, ignoring it and wishing the DUI away will not do you any good. This is not the time to sit and twiddle your thumbs as if the DUI does not exist.

If you continue to ignore the DUI, your driving privileges will be in jeopardy. As a result, your license can be suspended or even revoked. You can also face jail time, receive hefty fines and costs, and be required to do community service. If this piece of information is not enough to get you moving, as of January 2019, the State of California requires anyone arrested for DUI to install an ignition interlock device (IID) in his or her vehicle after the arrest.

Waiting Until the Last Minute to Hire an Attorney

You should never attempt to pursue a DUI case on your own. Now is the time to hire an attorney to represent you in your criminal matter. An experienced, qualified DUI defense attorney is a great resource to assist you with your DUI defense. If you want to obtain favorable results, do not wait until the last minute. The sooner you hire an attorney, the sooner your attorney can begin planning a defense strategy for your case. Continue reading

May 24, 2019

It is Legal for a Teen to Make and Share a Sexually Explicit Video?

by David M. Boertje

Three teenage friends, two girls and one boy, regularly shared videos by group text message to each other on their mobile devices. Through the bond of their friendship, there was an unspoken assumption that whatever was shared among them would remain private. There was an element to their video sharing practice of trying to outdo each other with each video posted and shared. This assumption was put to the test when one sensitive video did not stay among them.

The 16-year-old maker and sender of the video made a sexually explicit video of herself and sent it to the other teens on the group chat chain. The male teen, 17 at the time, shared a copy of the video with his school resource officer from the county sheriff’s office. The other female teen, who was 16 at the time, shared the video with other students. Before long, the video was widely distributed throughout the school. The maker of the video remained home from school for 30 days unwilling to return to school because of the backlash she was experiencing from the other students.

The only person charged with a crime for this incident, in juvenile court, was the 16-year-old maker and sender of the video. Possession and distribution of child pornography is a crime in the teen’s jurisdiction, the State of Maryland. It is also a crime in California.

Self-produced child pornography is a touchy subject. While on the one hand, the teen in this case was immature and an argument can be made that she did not appreciate the consequences of making a sexually explicit video of herself, she consented to sharing the video with her friends because she made the post herself and released it to them. She did not, however, consent to its release to the entire student body. On the other hand, child pornography is the trade of videos and photographs which depict children engaging in sexual acts. Outside of the school, this video may be on someone else’s electronic device and as such, it is being used to exploit children. The only way to combat its use is by banning possession of it strictly, as would be the case in almost all U.S. states. Continue reading

May 14, 2019

Understanding the CBD Food Craze in California

by David M. Boertje

There is a great deal of information and misinformation about CBD in food and the legality of CBD in food. In 2018, California legalized recreational use of marijuana. Despite its legalization, many uses of marijuana are still illegal.

Consider the source: Is the article you are reading or video you are watching discussing the law in California?

If you answered ‘no’ to the question posed above, do not accept the use of legalized marijuana discussed in the article or video as true in California. While recreational use and possession of marijuana is legal in 10 states, including California and the western states of the country, use or possession of recreational marijuana is illegal, under federal law, in all 50 states. Moreover, in states where marijuana use and consumption are legal, there are many different laws about which use or possession is permissible. What is legal in Colorado will not be what is legal in California.

Can I add CBD to my food?

According to Project CBD, cannabidiol (CBD) is a naturally occurring compound found in cannabis, a plant. It is just one of the hundreds of compounds unique to the plant. The other compound that receives a great deal of attention is tetrahydrocannabinol (THC) which is the ingredient in the plant that causes the high – making the user feel “stoned” or intoxicated.

Hemp CBD has become a nation-wide health craze. There are many positive health benefits to the use of CBD to alleviate aches and pains associated with debilitating chronic conditions like cancer, AIDS, severe chronic pain, and other ailments. California legalized the use of medical marijuana in 1996.

Buying food with CBD is illegal in California. Last summer, the California public health regulators published guidelines explicitly stating that they will not consider CBD to be an approved food additive or dietary supplement until federal or state regulators approve it. Thus, Californians cannot buy food that includes CBD as a food additive or dietary supplement. Continue reading

May 10, 2019

Understanding the Legal Uses of Marijuana in California

by David M. Boertje

We are close to the one-and-a-half-year mark of the legalization of the use and possession of recreational marijuana in California. There is a tremendous amount of misinformation on what is the permissible use and possession of recreational marijuana. The following post will tackle some of these misconceptions.

Use and Possession of Marijuana is Only Legal in 10 states, Including California

When reading about legal marijuana, it is important to focus on the source. More importantly, the state the author is referencing in an article or video is a critical factor. Recreational marijuana is only legal in 10 states. They are California, Washington, Oregon, Nevada, Alaska, Colorado, Michigan, Maine, Vermont, and Massachusetts. Each state defines legal recreational marijuana use and possession differently. Use or possession of recreational marijuana is illegal, under federal law, in all 50 states.

Legal Marijuana can Only be Transported in a Closed Container in the Trunk of a Car

Even though use and possession of recreational marijuana is legal in California, certain uses and types of possession remain illegal and will result in an arrest and charge if detected by police. For example, drivers can possess marijuana in their vehicles so long as it is in a container in the trunk. Even though the driver purchased marijuana legally and possesses a legalized amount, if it is in an open container, in a purse, in a glove-compartment, or on the back seat, an arrest will follow. This law is similar to the open container rule relating to alcohol possession in a car. You would not drive around with an open beer bottle; you cannot drive around with a rolled-up joint on your dashboard. Both types of possession of the legal substance, alcohol or marijuana, will result in a criminal conviction for illegal possession of marijuana or alcohol.

Public Consumption of Marijuana is Illegal in California

Additionally, public consumption of marijuana is illegal in California. While there may be businesses that are licensed for on-site marijuana consumption in California, these businesses may not serve alcohol or allow tobacco use on their premises. This means that bars and clubs cannot allow marijuana consumption on their premises because they serve alcohol. Continue reading

May 3, 2019

Using Artificial Intelligence to Detect Lies in Police Reports

by David M. Boertje

Many arrests are initiated by the victim of the alleged crime calling the police. A victim can also go to the police precinct and file a criminal complaint against the perpetrator in person. Whether in person or on the phone, the police open an investigation as soon as the victim starts talking.

The police will listen to the victim’s complaint and interview him or her for details about the event. Evidence of the alleged crime is collected and identifying characteristics of the potential defendant is gathered. At some point, the details from the investigation are written in a statement, that after being reviewed by the victim, is sworn to and signed. This statement forms the basis of the criminal complaint.

Sometimes, however, these police reports are not entirely truthful. When a victim lies and files a criminal complaint against someone, it is a crime in California. With the help of artificial intelligence, the police are actively cracking down on these fake police reports.

Artificial Intelligence in Criminal Investigations

Since the 2000s, law enforcement and artificial intelligence have been working closely to develop science and technological tools that would enable law enforcement to do their job better. Take, for example, the use of DNA collected at crime scenes in rape investigations. When used correctly, unique DNA markers can be isolated and used to identify the suspect and eliminate with almost 100% certainty all other potential suspects.

The next wave of tools to be developed will assist law enforcement with specific criminal investigations. Take, for example, robbery investigations. In California, robbery is a felony with a prison sentence of over a year in state prison. A robbery charge means a suspect took personal property in possession of another person from his or her immediate presence, against his or her will, by using force or fear. California Penal Code Section 211.

When the police are called to investigate the robbery, the victim will be asked questions to elicit a criminal complaint. What happened, how did it happen, was the victim hurt, what was taken, and who did it, are basic questions the victim will be asked. The victim will also be asked for a written statement of the robbery and the events and details described.

VeriPol can Detect Lies in Robbery Reports

VeriPol is software used in robbery investigations to identify false robbery reports. It was developed by computer scientists in Spain and used by the National Police to identify false robbery reports. The software analyzes the victim’s written statement to identify false reports. 83% of the software-identified fake reports were closed after the victim faced further questioning and resulted in no robbery charges being filed.

By analyzing the fake reports, conclusions were drawn to make robbery investigations in the future better. False robbery reports tend to be shorter, focused on the stolen property rather than the robbery itself, few details were provided about the attacker or robbery, and there was an absence of witnesses. This is just one example of how artificial intelligence is transforming criminal investigations and being used by law enforcement to go after the correct defendants. Continue reading

April 26, 2019

Illegal Street Racing

by David M. Boertje

A Whittier man, Dealio Lockhart, was recently sentenced to 22 years and four months in state prison for his role in the 2016 street race that caused a multi-vehicle pileup on the Golden State Freeway in Commerce. Three people died and four were seriously injured. An investigation by the City Prosecutor determined that Lockhart was driving 127 miles per hour just two and a half seconds before the fatal impact. The three dead included a UPS driver whose truck immediately burst into flames, burning him to death. Two young adults returning from a trip to Disneyland were also killed in the crash.

Illegal Street Racing is Dangerous

NBC News reported that a group from Orange County known as CDK are car enthusiasts that use parking lots and surrounding streets to perform sideshows or street racing. In mid-March the San Diego Police Department responded in full force to an announcement by the group, which is comprised of members of the Car Show Addicts, Dos Madres, and King Fresh car clubs, that they were going to meet in San Diego.

Strong Street Racing Culture

Southern California has long attracted car enthusiasts. The City of San Diego and San Diego County in particular, have been battling illegal street racing for decades. One program that achieved great success was launched in 1998 and was called www.racelegal.com. The goal of the program was to directly address illegal street racing activity and its accompanying public menace of death and injury by providing a safe and controlled racing environment at the SDUCC Stadium.

At the height of the program in 2003, there was a 99% reduction in organized illegal street racing activity in San Diego; and a 79% improvement in illegal street racing involved in crash deaths from bystanders or drivers. The nonprofit however, ran out of money and ceased operations in March. The group is trying to restart with new funding but faces opposition from the city because the SDUCC stadium site is being sold to San Diego State University.

Penalties for Illegal Street Racing Conviction

Individuals convicted of illegal street racing in San Diego face penalties that may include three months in jail, $1000 in fines, and having their vehicle impounded for 30 days. Continue reading