Articles Posted in Criminal Defense

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If you are driving along San Diego’s highways, you are familiar with the high-occupancy vehicle (HOV) lanes. These lanes are commonly referred to as carpool lanes or diamond lanes. The purpose of these lanes is to minimize traffic congestion and encourage ridesharing to reduce the rider capacity on San Diego roads.  With the benefit of these lanes, comes rules and regulations. The misuse of these lanes results in traffic violations, meaning punishments such as tickets, fines, and court fees. 

According to a recent NBC News San Diego report, HOV lane violations have tripled over the last three years. For example, in San Diego County alone, there were 4,547 HOV traffic violations in 2017.  

California Law on HOV Lanes

A portion of California Vehicle Code Section 21655.5 (b) states:

A person shall not drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices. A motorcycle, a mass transit vehicle, a blood transport vehicle that is clearly and identifiably marked as such on all sides of the vehicle, or a paratransit vehicle that is clearly and identifiably marked on all sides of the vehicle with the name of the paratransit provider may be operated upon those exclusive or preferential use lanes unless specifically prohibited by a traffic control device.

Can Everyone Use the HOV Lane in San Diego?

Unfortunately, no. According to Caltrans, San Diego reserves HOV lanes during operational hours for the following:

  • Motorcycles
  • Mass Transits (buses)
  • Vehicles with two or more occupants
  • Certain plug-in hybrid, alternative fuel and clean air vehicles (must have red decal issued by DMV)

In San Diego, I-5 San Ysidro requires three or more persons per vehicle.

Who is an Occupant?

Please keep in mind that Caltrans identifies an occupant as any person who occupies a safety restraint device such as a seatbelt. This means that if a dog rides in your vehicle, you will not be able to use the HOV lane.

Other situations where drivers cannot use the HOV lane include the recent ABC News article where a Nevada hearse driver was pulled over for traveling in the HOV lane carrying a body. The driver believed that the body would count as two people. And, a report where Brea Police caught a driver using a mannequin to drive in the HOV lane a few years ago.

HOV Traffic Violation Punishments

If you violate the California Vehicle Code by driving illegally in the HOV or carpool lane, the violation can be costly. You may receive a traffic ticket and face the following punishments:

  • Fines – minimum of $490
  • Points on your driver’s license
  • Increase in car insurance premiums

If you are a repeat offender, the fines could be much higher.

Let a San Diego Criminal Defense Attorney Help with Your HOV Traffic Ticket

While there is no obligation to hire a criminal defense attorney to help with your ticket, if you receive a ticket for an HOV violation, you should discuss your case with an attorney and discover your options. An attorney may be able to help get your ticket dismissed, get the fines reduced, or make it possible for you to do community service or traffic school in order as an alternative. Continue reading

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A shoplifting charge is a serious crime in California, whether it is your first offense or your fifth. Now that you and your friend are facing shoplifting charges, you probably think you will get off without any trouble since it is your first time. This is not true. And as a result, you attempt to handle the petty theft charge on your own. 

Without a criminal defense attorney providing representation for you, you place limits on your options – meaning the court is less likely to listen to your side of the story, and you may receive unfair treatment as you go through the criminal process.

If you and your friend are facing charges for a petty theft crime, you should immediately hire a criminal defense attorney who is experienced in shoplifting and petty theft.

What Exactly is Shoplifting? 

California law describes shoplifting as a theft by larceny. This happens when you take someone’s else’s property, without their permission, with the intention of permanently depriving them.

Below are some examples of shoplifting:

  • The San Diego shoplifting ring in which 22 people were stealing more than $20 million in merchandise from U.S. high-end malls to sell the items in Mexico.
  •  A KTLA news report showing California women stealing laundry detergent and toiletries at Dollar General, and being confronted by a store employee.

How can the Prosecutor Prove My Shoplifting Charge?

To prove shoplifting, under California law, the prosecutor must establish the following elements:

  • You took possession of property owned by someone else;
  • You entered a commercial establishment with intent to commit the crime;
  • The establishment is open during regular business hours; and
  • The value of the property stolen is more than $950

Penalties for Shoplifting

Shoplifting is a misdemeanor charge. According to California Penal Code Section 490.5, the misdemeanor results in the following penalties:

  • Three years of informal probation
  • Six months or less in a county jail
  • A fine up to $1000

First-Time Offender Programs

Since you and your friend are first-time offenders, you may qualify for the California petty theft diversion program, or your attorney may be able to get your charge reduced. 

The diversion program is a program that allows an offender to avoid punishment for the alleged crime, upon successful completion of the program. The program may take six months or longer to complete and may include:

  • Counseling
  • Community service
  • Behavior modification
  • Classes

The program is a great alternative for you and your friend to look into with your attorney. Eligibility depends on your age and prior criminal record.

New California Diversion Program Allows Victims to Confront Offenders

KUSI News reports that state officials are experimenting with a new diversion program that allows victims to confront offenders. The program will pair victims and offenders before they are convicted, and offenders who complete the program can avoid having a criminal record.

The state-funded program is targeting offenders who do not have extensive criminal histories, but who have committed serious crimes. This is important for you to know just in case you are a part of the new diversion program. Continue reading

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San Diego has a new regulation that went into effect on July 1. The San Diego City Council put new regulations in place for scooters and bikes – sometimes referred to as dockless devices – to increase the safety of the public. Now, dockless bike and scooter riders must keep an eye on their speed in certain areas and stay informed of the parking locations where dockless bikes and scooters are accepted or face traffic tickets from law enforcement. 

The Dockless Scooter and Bike Regulations do the following:

  • Limit riders’ speed to 8 miles per hour on beach boardwalks
  • Limit riders’ seed to 3 miles per hour in high-traffic areas
  • Ban scooters from parking at hospitals, schools and certain parks
  • Prohibit scooters from riding on sidewalks in the City

Additionally, the regulations:

  • Require scooter companies to pay a permit fee of more than $5,000 every six months, including a $150 per device fee
  • Create designated scooter parking corrals (stenciled zones where riders can park bikes and scooters) so they do not block pathways on sidewalks
  • Require riders to stage scooters in groups of no more than four
  • Require riders to place 40 feet between each staging area

For your information, the City of San Diego offers a map showing the areas with speed and parking restrictions. To prevent people from violating the regulations, riders will receive notifications from the dockless bike and scooter companies letting them know when they are in no-ride zones.

Although some people are not in favor of the regulations, they can help to prevent accidents on sidewalks. Just this year, the first known scooter fatality in San Diego occurred — a tourist was riding a scooter on the sidewalk when he lost control of the vehicle and crashed, suffering fatal head injuries. The report states that the tourist was not wearing a helmet.

New Dockless Scooter Regulations Enforced by the San Diego Police Department

Yes, with the new regulations, you can get a ticket and face fines for violations. The San Diego Municipal Code and California Vehicle Code explain the laws pertaining to scooters and bicycles. These laws are enforceable by the San Diego Police Department. The new regulation will allow riders and dockless device users to report dangerous behaviors and consider mechanisms for citations.

According to a Fox 5 News article, San Diego Police Department say they will be diligent in enforcing more serious traffic violations such as riding two people to a scooter or riding while under the influence. Both violations come with traffic tickets which require riders to go to traffic court or traffic school. Continue reading

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The story of Stephon Clark has been heard around the world. Unarmed and on his grandmother’s property, Clark was shot eight times and killed one night in Sacramento. The police mistook the glow on his cell phone for the muzzle flash of a gun. In March the County District Attorney and the State Attorney General declined to prosecute the officers, causing massive protest demonstrations for days. 

California’s History of Use of Deadly Force

For 147 years, California use of deadly force statutes have allowed police officers to use deadly force when arresting persons charged with felonies and who are fleeing from justice or resisting arrest. In 1989, the statute was replaced by a U.S. Supreme Court decision that held that lethal use of force is justified against a suspect if a “reasonable” police officer would have acted the same way in a similar situation. The change, however, was not codified.

Under a Bill before the State Assembly, that threshold would rise. A police officer would be justified in using lethal force only if it were determined to be “necessary” to defend against imminent death or severe harm. Unsurprisingly, California law enforcement organizations are campaigning to codify the 1989 standard, stressing that suspects should cooperate, then complain.

For the past year, criminal justice reforms in California have entered into effect at whiplash speeds. From eliminating cash bail to suspending the death penalty, the reforms have been first in the nation and an attempt to look at who gets most impacted by the enforcement of the state’s laws, the poor, and minorities.

Increasingly, law enforcement’s stance on the issue is losing credibility. With the advent of police cameras, street cameras, and even bystander cameras, many questionably deadly shootings have been dissected to the point that even when suspects cooperate and do not complain, they lose their lives.

The bill is not cheap. To support the aims, training specifically on how to de-escalate a police incident would need to be provided to California’s approximately 500 law enforcement agencies with thousands of personnel statewide.

Community policing will continue to be under scrutiny when the same individuals get targeted for apprehension on minor infractions and end up dead at the end of the encounter. To become law, the Bill has to be passed by the state Senate and signed by the Governor. Continue reading

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Last year, San Diego had the lowest violent crime rates in four decades. According to a study conducted by the San Diego Association of Governments (SANDAG), however, homicides were up. This violent crime remained steady from 2017 to 2018 and is on-trend with the rest of the country.

In San Diego County alone, there were 87 homicides in 2018, seven more than in 2017. With the rate of homicide remaining steady in San Diego, there are many reasons or motives as to why homicides are happening. Today, we will explore those reasons, but first we need to see what California law says about homicide.

Homicide Defined in California

The California Penal Code Chapter 1 discusses homicide. CA Penal Code 187 defines murder as the unlawful killing of a human being with malice aforethought. A homicide includes murder – the most aggravated type of homicide. Malice aforethought means the act of killing was intentional.

Motive Matters in Homicide Cases

While the act of killing must be intentional for homicide, motive typically explains why homicide was committed. Motive is not the same as intent but it matters in homicide cases such as in the example below:

An article in the Morning Call reports that a hearing in San Diego cop-killing death penalty case is set to start on Monday, June 24, 2019. The case involves a man being charged with murder with a special-circumstance allegation of killing a peace officer, attempted murder, and being a felon in possession of a firearm.

The prosecutor will begin presenting evidence that the man performed the act of shooting. The defense is expected to argue that the evidence falls short of proving the man pulled the trigger that night. The man could face the death penalty if he is convicted of murdering a police officer.

Sometimes it can be difficult to prove motive and intent. This is why in violent crime cases, the parties’ arguments include reasons why the crime was committed (motive) and also seek to prove whether the crime was meant to be committed (intent). 

Common Homicide Motives Revealed

SANDAG reports that in 2018, motive could be determined for 64 of 87 of the homicides by the time of publishing their May 2019 report. Below are common motives for homicide, according to SANDAG’s report:

  • Argument (45%)
  • Domestic Violence (16%)
  • Gang-Related (13%)
  • Robbery (6%)
  • Drugs (6%)

The other 14% included one each related to child abuse, financial gain, alcohol, and four that were not specified. 

Do You Need a Criminal Defense Lawyer?

If you or someone you know in the San Diego or Southern California area is facing homicide and murder charges, contact David Boertje, a San Diego Criminal Defense Lawyer. Mr. Boertje is an experienced murder and criminal defense attorney and has been practicing criminal defense in San Diego County since 2003. He has successfully handled hundreds of criminal cases. Continue reading

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Boston, New York, Minneapolis, Denver, and Los Angeles are just a handful of cities in the United States sending teams or co-response teams of police officers and social workers to respond to incidents involving individuals suffering from mental health illness, reports The Economist magazine. 

Many individuals who come into contact with the criminal justice system suffer from undiagnosed mental illness. It is not until they receive their medical examination when they are booked in county jails that mental health professionals are able to assess them and start them on medications to manage the worst of their symptoms.

Those who know they suffer from mental illness may have difficulty medicating themselves, forgetting or skipping their meds, or not being able to afford the medication. How many people experience mental health problems during the criminal justice process is difficult, if not impossible, to quantify. Even though the U.S. Justice Department collects statistics on individuals with mental health problems in the criminal justice system, they rely on self-reported data from local police departments to complete their own assessments. Sharing the information with the U.S. Justice Department is voluntary, so the numbers available do not accurately portray the magnitude of the problem.

New Approach to a Difficult Problem

Studies show that as many as two in four of fatal police shootings nationwide involve a victim suffering from severe psychiatric problems. Most police officers are not trained to deal with mentally ill people. Many more are not advised that they are responding to a scene with a person with severe psychiatric problems. The result is often a fatal misunderstanding that perhaps could have been better resolved with the assistance of a mental health professional.

Police departments are facing severe budget shortfalls. Programs such as the co-response teams are expensive. Funding, when available, is patched together from multiple sources, including federal, state, and local funding and grants from private organizations. Before the program can even be implemented in a community, the social worker must be trained about law enforcement duties, policies, and protection, and the police officers need to be trained about mental health illness and how to respond to individuals experiencing a mental health crisis.

Funding made available to local Police Departments to implement co-response teams, are used to pay for the additional personnel of a social worker, to train social workers about law enforcement, and to train police officers about mental health illnesses and how to respond to individuals experiencing a scary but not life-threatening mental health crisis. Continue reading

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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.

Continue reading

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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

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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

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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

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