Articles Posted in Criminal Defense

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Does the following scenario sound familiar?

An accused person pleads guilty to selling $225 of heroin to undercover police officers, is sentenced to one year of house arrest and five years of probation; and is also ordered to pay $1,200 in fees and fines. The accused person’s Land Rover, the car he was driving at the time of the arrest, is also seized during the arrest and forfeited in a subsequent and separate civil forfeiture action. This real-life scenario was the case that triggered a review of the State of Indiana’s civil forfeiture practice of seizing instruments of a crime by the U.S. Supreme Court.

U.S. Supreme Court Issues Unanimous Decision

The eighth amendment of the U.S. Constitution bars excessive fines and limits the ability of the federal government to seize property. Now, this limitation also applies to state governments. In a 9 – 0 decision, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit the practice of civil forfeiture as it is currently exercised by the states.

Civil Forfeiture Actions at a Glance

Civil forfeiture is a practice by state and local governments of taking of cash, cars, houses, and other assets used to commit crimes. For decades, opponents of the practice have criticized it as a revenue producing program subject to unchecked abuse. The problem with the practice is that value of the property seized is out of proportion to the crimes involved in the charged offense.

Indiana Case

In Tyson Timbs v. Indiana, the defendant argued that the seizure of his Land Rover, an asset he purchased with the proceeds from his father’s life insurance policy, was excessive. The State of Indiana argued that the Land Rover was used to commit a crime, the sale of heroin totaling $225, and as such, was justified. The Supreme Court agreed with Mr. Timbs and ruled that the seizure of the Land Rover in this case was excessive and sent the case back to the lower court to resolve what the value of the seized item should be.

Property used during the commission of a crime will still be seized. However, an independent inquiry will be made to determine what the penalty will be.

Civil Forfeiture is an Assessed Penalty in Resolution of Criminal Cases Continue reading

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As many as eight million Californians have criminal records for misdemeanor or felony crimes. All of them are subject to denied or limited employment, housing, and credit opportunities because of their criminal convictions. Many of the past crimes are for low level misdemeanors, like simple marijuana possession, or low-level felonies that are non-violent in nature.

Jurisdictions all over the United States are banning prospective employers from inquiring about a job applicant’s criminal conviction history during the recruitment process. It is not until the job applicant is made a formal job offer that it is permissible for an employer to inquire about a job applicant’s prior criminal convictions. Despite these modest changes to the law, discrimination against prior criminal defendants persist, aided by the public record of his or her criminal conviction.

Current Law Regarding Sealing of Criminal Records

Right now, people can seal their rap sheets following the completion of all their sentencing conditions. For example, a person convicted of driving under the influence, who receives a two-month sentence in county jail and three years of probation is able to request his or her criminal conviction record be sealed after applying and paying a fee, three years from the date of his or her release from jail.

Proposed Criminal Records Bill

The proposed Criminal Records Bill, would automatically seal the rap sheet of people whose crimes are specified in the statute as eligible for automatic sealing. The bill would apply retroactively, meaning people with prior criminal convictions who have not applied to seal their record would have their records automatically sealed when the Criminal Records Bill becomes effective.

Law enforcement agencies and some employers would still be able to access prior arrest records as part of criminal investigations or deep background checks for certain job positions. Members of the public, including potential landlords and employers, would no longer have access to a person’s arrest and conviction records.

The California Justice Department under the proposed bill would be able to contest the automatic sealing of a criminal record under certain conditions and upon application to the court. All others, however, would automatically be sealed upon successful completion of sentencing conditions.

Seal Your Criminal Records Now

You do not have to wait for the Criminal Records Bill to pass to seek the sealing of your criminal record. Individuals may petition the court to have their prior criminal conviction records sealed under certain circumstances. If you would like to know if your criminal record can be sealed, contact the qualified and knowledgeable San Diego Criminal Defense Attorney today to understand the process and your legal rights and responsibilities in seeking such relief. Continue reading

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California is at the forefront of criminal justice reform. Last year, many laws were passed to reform the criminal justice system in an effort to make it fairer for Californians accused of committing crimes, whether they were serving time in juvenile detention facilities, jails, or state prisons. Abuses occur in any system, it is how those abuses are addressed that are the true measures of progress.

One area in the current spotlight is juvenile justice reform. Children under 18 who commit crimes are increasingly charged as adults as if they have the mental and emotional maturity to understand the consequences of their actions. As a society Americans feel that criminal conduct should be punished through incarceration; serving time seems to be the only acceptable form of punishment.  

The amount of time required to be served for certain crimes is disproportionate to the nature of the offenses. For example, white collar crimes are generally punished less severely than all other crimes even though the impact of the crime is felt by more people than a crime impacting just one victim. Drug crimes, especially simple marijuana possession, are punished more severely than sexual assault crimes, making no distinction between physical violence and drug addiction.

Two bills went into effect on January 1, 2019 specifically aimed at addressing some of the problems in the juvenile justice system. The first of those laws was Senate Bill §1391. This bill, now law, amends the Welfare and Institutions Code to eliminate the prosecution of 14 and 15-year-old children as adults. Effective January 1, 2019, criminal cases involving children under 15 years of age will remain in the juvenile court system. Children over 16, or individuals over 18 who committed a juvenile crime but eluded arrest until after they turned 18, or who commit a serious or violent felony can still be charged as adults should the prosecutor request it.

Prosecutors to Decline Charging Children Under 12 for Crimes

The second law, Senate Bill §439, also amends the Welfare and Institutions Code to eliminate the adjudication of crime, in both juvenile and adult court, for children younger than 12 years of age. Children accused of murder and forcible rape, however, will still face juvenile or adult charges, depending on the severity of the crime charged. A child under 12 will be released to his or her parents and be subject to supervision outside of the criminal justice system.

These reforms are an important step forward in thinking about crime and crime prevention. By offering social services rather than jail time to children accused of crimes, rehabilitation can be achieved and such children returned to society as contributing members.

Do Not Go it Alone

If your child has been arrested and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony.   Continue reading

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For the last two weeks the owner of the New England Patriots football team has been the subject of many jokes and conjecture in regards to his sex life following his recent arrest and charge for solicitation of prostitutes in Jupiter, Florida. As many as 300 people are expected to be arrested in the latest law enforcement crackdown of sex trafficking in massage parlors in that region. Kraft faces two counts of soliciting another to commit prostitution, which are misdemeanor charges allegedly based on two separate visits to the Orchids of Asia Day Spa.

The massage parlor at the center of the Kraft investigation, the Orchids of Asia Day Spa, was shut down along with nine other massage parlor businesses in Florida. The massage parlors are accused of running a prostitution service out of their stores. These massage parlors are often located in strip malls and advertise half an hour to an hour massages for a fee. Instead of a massage, however, sexual acts are performed by the workers.

Women were also arrested during this crackdown. The women were identified as sex workers or victims of sex trafficking. The sex trafficking victims are new arrivals to the United States. They are recruited in their hometowns overseas or in the U.S. immediately after their arrival under false pretenses of a legitimate job. Once here, however, they are forced to become sex workers against their will.

Sex Trafficking in San Diego

The weekend before the Super Bowl, the FBI made splashy headlines around the nation when they announced the arrest of 139 people in the greater Atlanta Georgia area for soliciting sex from prostitutes. The Florida and Georgia stings may seem remote, but San Diego conducts such stings regularly. In January 2018, 29 people were arrested for soliciting sex during a sex trafficking sting operation here in California. The FBI lists San Diego as one of the 13 highest sex trafficking areas in the country.

Massage parlors are part of many sting operations because they are a common place at which these types of activities occur. An investigation published by WNBC San Diego in November of 2018 found that 243 massage parlors in San Diego offered sex acts to clients as a service. The practice is so rampant, that a subscription-based website was created to provide reviews and pricing of the services members received. Continue reading

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Domestic violence, according to The National Domestic Violence Hotline, is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship. The behavior becomes criminal when one partner hits or strikes the other partner, known as battery, which is often part of the pattern of abusive behavior. Other words used to describe domestic violence include intimate partner violence, domestic abuse, or relationship abuse.  

Who is an Intimate Partner?

Domestic battery as opposed to battery is a crime against a close family member or among persons in an amorous relationship, regardless of sexual orientation. An intimate partner includes a current or former spouse, a fiancé, co-parent of your child, a person you are dating, or a person who lives with you.

Domestic Battery Under the California Law

To be convicted of domestic battery under California law, the prosecution must prove that the accused person inflicted unlawful force or violence upon an intimate partner. (California Penal Code §243(e)(1)). If that charge fails, the prosecutor may charge the accused person with assault or battery.

Penalties for Misdemeanor Domestic Battery

Individuals convicted, by a guilty plea or after a trial, can face up to $2,000 in fines, be sentenced to one year in county jail, and be required to complete year-long treatment program for batterers. Beginning on January 1, 2019, there is the additional penalty of taking away the right of the accused person to own a gun for life.

Misdemeanor Domestic Battery Conviction Triggers Gun Ownership Ban

Any person convicted of misdemeanor domestic battery in California after January 1, 2019, even if it is a first offense, loses his or her right to own a gun for life. The imposition of the lifetime ban on gun ownership for convicted persons became law as part of Assembly Bill §3129 and is now part of the Penal Code at §273.5

Help is Available for the Accused Person

The National Domestic Violence Hotline helps the accused person as well as the victim of intimate partner violence. Per the hotline, if you are questioning your own behavior at all, or if someone else has brought it to your attention, acknowledging it is a step in the right direction. Give us a call today at 1-800-799-SAFE (7233) or chat online with us to start the conversation. Continue reading

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This week a San Francisco free-speech group, the First Amendment Coalition, sued the California Attorney General and Justice Department over their refusal to disclose police misconduct records under the state’s new transparency laws. Last year the Senate passed a bill providing the public with greater access to police personnel files as well as greater access to video or audio from police shootings or deadly use of force encounters. Details surrounding both laws are described below.

Greater Access to Police Personnel Files

The California Penal Code was amended with Senate Bill §1421 to permit more access to police and prison personnel records. In the past, police and prison personnel records were not disclosed for confidentiality reasons even for litigation and public-records requests.

While police and prison personnel records are still confidential, they may be released in situations in which one or more of the following conditions apply.

  • When a gun is fired by police or prison personnel that results in death or great bodily injury;
  • A sustained finding that police or prison personnel sexually assaulted someone; or
  • A sustained finding that police or prison personnel were dishonest in a criminal case or in the investigation of another police or prison officer.

A sustained finding is a decision by investigational authorities in cases of police or prison personnel misconduct that finds fault in the conduct of the police or prison officer.

Greater Access to Video and Audio From Police Shootings

Assembly Bill §748 also amended the California Government Code and provides the public with greater access to video or audio from police shootings or deadly use of force incidents that result in death or great bodily injury.

The right to receive access to video and audio is not absolute. A police department or prison may deny disclosure or release of the video and audio recordings if the incident is under investigation and if would violate someone’s privacy rights. Assembly Bill §748 goes into effect on July 1, 2019.

Charged With a Misdemeanor or Felony Crime in California?

Most people in the criminal justice system are first-time offenders. For many accused people it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings peace of mind during a turbulent and scary time for you and your loved ones.

Contact an experienced and knowledgeable San Diego Criminal Defense Attorney who can help mitigate penalties and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

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Individuals arrested for driving under the influence (DUI) in California are now required to have an ignition interlock device (IID) installed in their motor vehicle after arrest. Effective January 1, 2019, an individual facing DUI charges will be able to maintain unlimited driving privileges while their regular license is suspended so long as the IID is installed in this or her motor vehicle.

Changes to the Vehicle Code

Senate Bill § 1046, signed into law by former Governor Jerry Brown, amends the Vehicle Code to require individuals convicted of DUI to install an IID on their vehicle for at least six months following their conviction.

What is an IID?

According to California’s Department of Motor Vehicles, an IID is about the size of a cell phone and is connected or wired to your vehicle’s ignition. The IID requires a breath sample before the engine will start. If the device detects alcohol on the driver’s breath, the engine will not start. The results of the failed test are also sent to the court, including the probation or parole officers assigned to your case, triggering a violation of a bail, probation, or parole condition. You will be asked to pull over and stop driving while you conduct a repeat test to make sure there is no alcohol in your system.

Duration of IID in Vehicle Depends on Conviction Record

The general rule is, if it is your first DUI conviction and no passenger or pedestrian got hurt, you may be offered the option to choose between installing an IID for six months with full driving privileges or not installing an IID but having a restricted (or suspended) license for one year. If a passenger or pedestrian gets hurt because you were driving under the influence, you will be required to install an IID in your vehicle for six months.

Repeat offenders will need to install and maintain an IID for more time. Second DUI conviction will require you to install an IID for one year. A third DUI conviction will require you to install an IID for two years. A fourth or subsequent DUI conviction will require an IID installation for three or more years. Continue reading

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One of the most memorable lines in the 1995 movie, The Usual Suspects, is, “The greatest trick the devil ever pulled was convincing the world that he did not exist.” I am citing this movie for another reason though, specifically, for its depiction of a police line-up in California. What makes the plot of this movie so entertaining is that the band of criminals meet during a police lineup that unsurprisingly nails the wrong guy to the crime.

Eyewitness identifications or police line-ups are a part of the criminal justice system about which people get upset quite often because of the unreliability of eyewitness identifications and the abuse of process that plagues the system. Police line-ups can be photo line-ups or in-person line-ups, such as the one made famous in the movie.

Senate Bill § 923

Beginning next year, on January 1, 2020, the California Penal Code will be amended pursuant to Senate Bill § 923 to require all police and prosecutors in the state to adopt basic rules for phone line-ups and live (in-person) lineups with eyewitnesses. The exact guidelines are still under development. The California legislature however, defined specific parameters and considerations that must be contained in the new procedures.

The rules created and adopted by California law enforcement and state prosecutors are as follows:

  • As close in time as the crime is committed, ask the eyewitness for a description of the perpetrator first, before showing the eyewitness any photos or people;
  • Prohibit the investigating police officer or detective from knowing who the suspect is or where the suspect is positioned in the line-up, whether photo or in-person;
  • Advise the eyewitness that the suspect may or may not be in the line-up, whether photo or in-person, and that he or she should not feel compelled or obligated to make an identification;
  • Prohibit the investigating police officer or detective from saying something that could influence the eyewitness’s decision; and
  • If the eyewitness is able to make an identification, ask the eyewitness to assess his or her confidence level in the identification, and record the eyewitness’s response word-for-word.

This bill was signed into law by former California governor Jerry Brown and was a part of a series of significant changes to California’s penal code. At the heart of the changes to the line-up procedure is the overwhelming wrongful convictions based on bad eyewitness identifications. By creating a streamlined and uniformed process for conducting police line-ups, the legislature hopes to decrease wrongful convictions based on misidentification of the suspect. Continue reading

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An arrest is an undeniably traumatic experience. The simple question, am I free to go, will be answered with an affirmative “no.” Keep in mind that once the police officer starts the arrest process, he or she has probable cause to believe that you have committed a crime. If during the arrest process, you resist arrest, for example, you will receive an additional charge and that charge can stand on its own regardless of whether there is a conviction for the underlying arrest charge.

While you have a constitutional right to disrespect a police officer, if you desire to do so, we advise against it. It complicates the process. Resisting arrest can involve more than physical acts. Spitting on the police officer can support a conviction for resisting arrest, as well.

If you are arrested or taken to a police station:

  • DO tell the police your name and basic identifying information. But nothing else.
  • DO say “I want to remain silent” and “I want to talk to a lawyer.” The police should stop questioning you after that.
  • DO make sure you get your three phone calls within three hours of getting arrested or immediately after being booked. You can call a lawyer, bail bondsman, relative, or any other person. If you have children under 18, you get two additional calls to arrange childcare. Memorize phone numbers ahead of time.
  • DO know the police are recording your calls (except the call with your lawyer).

    If you are arrested or taken to a police station:
  • DON’T give police any information except for your name and basic identifying information.
  • DON’T give police a fake name or your cousin’s name. This may lead to another charge.
  • DON’T give explanations, excuses, or stories about your conduct or the subject of the police investigation. Calmly say, “I want to remain silent” and “I want to talk to a lawyer.”
  • DON’T talk about your case on the phone with anyone. The police might be recording your phone calls (except those to your lawyer).
  • DON’T make any decisions in your case without talking to a lawyer.
  • DON’T discuss your citizenship or immigration status with anyone other than your lawyer.

Continue reading

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Most people’s contact with police occurs in their cars. Drivers routinely get stopped and cited for traffic and moving violations. Sometimes people are stopped because their vehicle matches a description of a vehicle of interest in a police investigation, or at a sobriety checkpoint during the holidays, or at the site of a car accident. No matter the occasion for the stop, there are certain behaviors that are acceptable and others that you should avoid. What follows are tips on how to handle a police stop in your car in California.

If you are stopped in your car, DO:

  • DO show your license, registration, and proof of insurance when asked by the police officer if you were driving the vehicle.
  • DO keep your hands on the wheel and let the police officer know what you are doing. For example, “I’m going to reach for my wallet to get my drivers’ license out.”
  • DO say, “I do not consent to a search.”
  • DO sign your ticket if you are given one and asked to sign it. Otherwise, you may be arrested.
  • DO take a breathalyzer and participate in any DUI tests unless you are willing to risk the suspension of your license.
  • DO ask if you can park your car in a safe place or have a licensed driver take it away, if you are arrested, to avoid towing and impoundment fees.

If you are stopped in your car, DO NOT:

  • DO NOT physically resist a search. Say, “I do not consent to a search.”
  • DO NOT refuse to sign a ticket. Remember, you can be arrested for not doing so.
  • DO NOT search for your license or registration until asked. It may look as if you are trying to hide something.
  • DO NOT disrespect the officer. Although you have a constitutional right to do so, it could lead to your arrest.
  • DO NOT attempt to bribe the police.
  • DO NOT play music loudly when the police walk up to your car.
  • DO NOT have any objects hanging from your rearview mirror or dark tinted windows. It may give police a reason to pull you over.

The Boertje Law Firm Fights for You

If you have been arrested and charged with a crime in San Diego, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. Contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony. Continue reading

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