Articles Posted in Criminal Defense

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Working closely with a defendant to develop the best defense possible requires skill, creativity, and a depth of knowledge found among the defense lawyers at Boertje & Associates. If you are facing criminal charges, we can provide the services of an experienced criminal defense attorney who understands the many options available to defendants. Some of the possibilities that could benefit you include the following: 

Showing a Jury That You are Innocent

The law states that every defendant is innocent until proven otherwise. Prosecutors must prove every element of the case to get a conviction. A good defense attorney will use testimony, documents, and other materials to try to convince a jury of your innocence.

Putting Forth an Affirmative Defense

Constructing an affirmative defense is one way to reduce legal consequences associated with your charges. That means we do not claim that you are innocent; instead, we show that there were mitigating circumstances—maybe self-defense, intoxication, or other factors that could decrease or even eliminate your criminal liability. 

Negotiating a Plea Bargain

This strategy — pleading to lesser charges in exchange for a lighter sentence — might be available depending on your history of arrests/convictions, the confidence a prosecutor has in their case, and the value of information you have to trade.  

 Challenging of Evidence

Strict rules around evidence mean that any deviations from standard protocols can be quite beneficial to a defendant. Your attorney may be able to point out glitches with the chain of custody, challenge the reliability or interpretation of forensics, or focus on contradictions related to witness testimony.

Using Expert Testimony

When we provide our own expert witnesses, it is a potent way to show a jury a different explanation of the evidence that might be presented by the prosecution. This can be fundamental to establishing a fresh narrative to explain events relative to the event in question.

Looking at Mitigated Sentences

Defendants who express remorse, accept responsibility for their situation, and show a clear desire to turn their lives around may be able to take advantage of sentencing options delivered by sympathetic judges. Judges generally have some leeway when it comes to sentencing. There are multiple alternatives to jail that might be considered, including one’s desire to rehabilitate through mental health or drug rehabilitation, for example.  

Citing the Statute of Limitations

Many crimes have very specific time frames during which they may be prosecuted. Once that window closes, the prosecution may be barred from moving forward with charges.  Continue reading

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Across the country, more and more people are buying firearms. Some enjoy hunting, while others feel they need protection. Whatever the reason, if you wish to purchase and own a gun in the state of California, it is important that you are aware of and abide by the laws of the state in order to avoid problems with law enforcement. 

Getting a Gun

For starters, make sure any gun purchase is made through a licensed dealer, and be aware that there is a 10-day waiting period before you can take possession of the firearm. The exception to this is when transferring a firearm between parent and adult child, grandparent and adult grandchild, or between spouses. You must be 18 years old or older for a purchase, although anyone under the age of 21 may possess a handgun, except under certain exemptions, such as having a hunting license or working for law enforcement or the military. You will have to show a valid I.D. to make the purchase and show that you are in the country legally. To purchase a handgun, you will have to prove that you are a resident of the state, as well. 

Storing Weapons

Be aware that if a child gets hold of your weapon and has an accident that results in injuries or fatalities, you could be charged with a felony if the gun was not stored in a locked container or otherwise locked and inoperable.

Illegal Weapons

In California, the purchase, sale, manufacture, and import of large-capacity magazines are illegal. That means anything that can use more than 10 rounds is not allowed. The exception to this rule is for anything you may have owned and registered prior to 2000, assuming you were not prohibited at that time from owning a weapon or anything manufactured before 1899, which would be considered an antique. In general, assault weapons and their magazines may only be transferred or sold to licensed dealers or law enforcement departments. Those in violation of these rules are subject to both criminal and civil penalties as of 2023, according to SB 1327.

Unlawful Firearm Possession

There are a number of restrictions as to who may legally possess a firearm under California law.  Those restrictions include:

  • Those under age 18;
  • Those previously convicted of a felony;
  • Anyone addicted to narcotics;
  • Those with two or more misdemeanors related to firearms;
  • Anyone with an outstanding warrant;
  • People with certain mental health conditions.

While it is possible to get out of gun possession charges with only a misdemeanor, in some cases, offenders may face felony charges, resulting in three years behind bars and thousands of dollars in fines.  That’s on top of losing the right to possess firearms in the state forever. Continue reading

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Because defendants are presumed innocent until proven otherwise, it makes sense that the Founders believed in giving the accused their day in court as quickly as possible. The  6th Amendment of the Constitution guarantees the right to a speedy trial. It is important for many reasons, not the least of which is that it quickly clears the names of innocent people in a court of law. But what constitutes a speedy trial? 

Defining Speedy

Under California law, a misdemeanor criminal case must be tried within 45 days of charges for individuals who are not being incarcerated and just 30 days for anyone in custody. Felony charges must be tried within 60 days. More specifically, formal charges are required within 15 days of an arrest, and misdemeanors are tried within 45 days of arraignment.  Felonies must be tried within 60 days of arraignment. If that fails to occur because the state’s case is not ready yet and they have failed to demonstrate good cause for a delay, the case may be dismissed with a Serna motion, the claim that a speedy trial was denied.

Benefits of a Speedy Trial

 The benefits of having a speedy trial are many:

  • Defendants who have been wrongly accused are able to move on with their lives rather than be indeterminately burdened with unresolved charges.
  • Locating witnesses to the event in question will be less challenging if the trial occurs soon after an alleged crime.
  • Witnesses will likely remember their experiences more clearly.
  • A speedy trial can reduce the time behind bars since the accused is often jailed while awaiting trial. 
  • A speedy trial will reduce the stress and trauma for defendants.

Trial Delays

There are numerous reasons that any trial might be delayed, some legitimate, and others not so much:

  • Information may be passed along to the prosecution from law enforcement slowly.
  • The prosecution may be slow to disclose information to the defense.
  • State labs may be slow due to backlogs, leading to delays in essential forensic testing.
  • Complicated cases have a great deal of evidence that takes an extraordinary amount of time to review.
  • The prosecution may be short-handed, and therefore need more time to prepare.
  • Backlogged court dockets may make scheduling a timely court date a challenge. 
  • In some situations, the prosecution may intentionally delay the case for their own reasons.

The Fight for a Speedy Trial

If a person’s right to a speedy trial is violated, an aggressive defense attorney might charge that the prosecution was sloppy and disordered, leading to unnecessary delays.  It may be possible to find evidence of intentional delays by the prosecution in an attempt to provide gain time to ferret out additional evidence against the defendant. Since the right to a speedy trial was largely intended to safeguard the presumption of innocence, any uncommon or problematic delays might be a reason to fight for a case dismissal. Continue reading

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As an unsuspecting woman prepared her two daughters for school one February morning, she was shocked to find six armed police officers at her door. They requested she step outside and promptly arrested her for carjacking. The woman, compliant, was stunned.   

Is This for Real?

The woman had no idea what was happening or why they thought she was connected to a carjacking. At eight months pregnant, she was in no condition to pull off a carjacking and would never be compelled to participate in that kind of activity anyway. Even so, police handcuffed her and took her to jail. She spent 11 hours detained, locked in a holding cell, and being questioned relating to a crime she knew nothing about. Finally, she was released on a $100,000 bond. Then she went to a local hospital, where she was treated for dehydration. One long month later, the charges against her were dropped.

Why Was This Woman a Suspect?

The evidence leading to the woman’s arrest began with facial recognition technology (FRT). Videotape from the crime scene was run against a criminal mugshot database, which came up with the innocent suspect. Her face was there due to a 2015 arrest for driving under an expired driver’s license. Police included the woman’s photo in a photo lineup that was shown to the victim, who identified her as his assailant. And therein lies the problem: When a person appears similar to the perpetrator, facial recognition technology and humans can both make the same identification mistakes.

Can FRT Be Trusted?

There is general agreement that facial recognition technology is extremely accurate under model conditions. However, in most cases captured in video surveillance from things like convenience store security cameras or traffic cameras, conditions are appreciably less than ideal. Indirect angles, shadows, and aging have adverse effects on the reliability of FRT. One study found that the technology’s accuracy rate at sporting venues was between 36% and 87%. That is a substantially lower rate than in, for example, an airport, where security cameras are placed at boarding gates in well-lit, eye-level conditions. It brings into question how law enforcement can be so confident in FRT results.

Race and FRT

Another serious problem with this technology is the problem related to race and FRT. Research is clear: The rate of error is over a third higher for dark-skinned people than for light-skinned people, with black women experiencing the highest error rates when attempts to identify them were tested. It makes one wonder why law enforcement would rely on FRT at all. Continue reading

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We have all heard the stereotype about all people who are charged with a crime claiming to be innocent. But the truth is, plenty of them are. Nonetheless, they are prosecuted, even though, in some cases, the motivation behind the charges is the pursuit of something other than justice; they are interested in getting even or getting out of trouble themselves. Prosecution under these circumstances is legally called malicious prosecution. It means that either the plaintiff or someone on the prosecution team is literally out to get you. Sound like a conspiracy theory? Maybe so, but it happens more often than you might think.

Malicious Prosecution Comes in Many Forms

Malicious prosecution is pretty much what it sounds like — the spiteful arrest or prosecution of a person who is innocent or the prosecution of someone for which any reasonable person would acknowledge there were no legal grounds.

These cases frequently involve a plaintiff who is jealous, angry, or afraid, or who is aggressively seeking revenge. Some examples might include:

  • An amorous relationship is toppled by an affair, and the scorned partner accuses the cheater of battery to exact revenge.
  • A law enforcement officer is put off by a disrespectful youth, then trumps up charges to teach them a lesson.
  • A nasty custody battle is heated up when one person falsely accuses their former spouse of child abuse in order to strengthen their bid for custody.
  • When an amicable business split is impossible, and one partner accuses the other of fraud in an attempt to destroy their reputation and the company.
  • An unplanned pregnancy leads to a rape accusation as a way to protect a young woman’s reputation.
  • A newspaper sheds a negative light on a subject of journalistic investigation and is then sued for libel as a way to disparage the organization.
  • A person sells their spouse’s expensive jewelry, then accuses someone else of stealing it to avoid blame.

Defending Malicious Charges

Defending these kinds of charges is much like defending any other case. That means developing a strategy of:

  • Providing a strong alibi;
  • Finding evidence of lies or embellishments;
  • Presenting the defendant’s explanation of events in a credible fashion;
  • Exposing motives for bringing charges;
  • Checking police reports and procedures for errors;
  • Looking at the plaintiff’s previous behavior that demonstrates malicious prosecution;
  • Using physical evidence and additional provable facts to develop a compelling narrative;
  • Seeking out third-party experts to testify;
  • Demonstrating that the prosecution has not proven all elements of the crime.

Continue reading

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Corporate white-collar criminals enjoyed the lowest prosecution rate in history under former President Trump. But there is a new sheriff in town. According to Deputy Attorney General Lisa Monaco, about 15% of these significant white-collar crimes involve repeat offenders. Now the Department of Justice (DOJ) is toughening its posture toward these corporate offenders. Under Monaco’s direction, a Corporate Crime Advisory Group is conducting a wide-ranging review of policies related to corporate criminal activity and developing new policies aimed at delivering both incentives and consequences when dealing with white-collar crime. If you have been charged with such crimes, you need an aggressive local criminal defense attorney sooner rather than later.

Investigations Expedited

In an attempt to intensify personal accountability when white-collar crimes occur, the DOJ is more focused on prosecuting the top dogs in the corporate world than on merely punishing the corporation itself. New DOJ policies fixate on identifying repeat offenders and prosecuting them. That means the DOJ must look at misconduct within a company more expansively, install more monitors to stay on top of possible issues and make more persuasive demands for collaboration in these cases. Offenders will have to share evidence of crimes and actually name names across the board, not simply point out those involved to a substantial degree. Immediately upon discovering evidence of misconduct, the government will require notification, which eliminates the previous custom of gamesmanship and delay from corporate entities. Companies who continue with their old practices will soon discover that the penalties are delivered more quickly and more heavily than what they may have expected in previous years.

Required Self-Disclosure 

The DOJ has developed policies that definitively outline the expectations of corporate self-disclosure, along with the benefits of doing so. Speedier disclosures result in greater accompanying benefits. Explicitly, collaboration and voluntary remediation by companies could lead the DOJ to forgo efforts to seek a guilty plea or the use of independent compliance monitors, which will result in huge savings for the companies. And we all know money speaks volumes and can be a huge incentive for cooperation. 

Past Behavior Matters

Additionally, a thorough review of the offender’s civil, regulatory, and criminal history will now be weighed as the DOJ considers resolving cases of wrongdoing. That is a difference worth noting, as only conduct similar to current law-breaking was considered when determining how to proceed in the past.

More Prosecutions

There is another potential change worth noting when it comes to repeat offenders. The DOJ is studying the elimination — or, at a minimum, a significant reduction — of allowing lawbreakers to “weasel out” of criminal prosecutions by simply paying fines and making promises that the illegal behavior will not happen again. An entirely new group of FBI agents will be tasked with pursuing corporate crimes and seeking criminal prosecutions when appropriate. Continue reading

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Many parents may not appreciate the fact that dating violence fits under the umbrella of domestic violence. This is a reality that both teens and young adults deal with every day. Dating violence involves both victims and abusers. While it may be impossible to envision your child as a perpetrator of domestic violence, being aware of the signs and symptoms of abusive behavior is crucial if such behavior is to be eliminated before it becomes a pattern. By the same token, teens who have been falsely accused of such behaviors need protection. If your teen has been accused of this kind of behavior and has been charged with criminal actions, it will be necessary to provide a strong defense in order to avoid serious penalties. 

Dating Violence is Widespread

Teen dating violence (TDV) is a serious issue, which is why California statute is so harsh. It is defined as any verbal, emotional, physical, economic, technological, stalking, or sexual abuse among adolescents ages 10 to 24. Consider these national statistics: 

  • 1.5 million high schoolers are directly affected by dating violence annually.
  • One in four eighth and ninth graders report having suffered dating violence, and nearly 10% report having experienced sexual abuse.
  • One in ten students in high school report being physically harmed by someone with whom they are in a romantic relationship.
  • The majority of students who report incidents of acquaintance rape say drugs or alcohol were being used at the time of the incident.

Penalties

A guilty conviction for domestic battery in California could mean your teen will be jailed for up to a year, in addition to being fined $2,000. If your teen is charged with domestic violence, it is a felony, and the time behind bars jumps up to as long as four years while the fine triples to $6,000. Sexual assault could face four years in prison and a $10,000 fine, and a rape conviction could mean up to eight years in prison and $25,000 in fines.

Before Dating Violence Becomes an Issue

Eight in 10 parents surveyed report they do not know much about teen violence, or they do not believe teen violence is an issue. This reveals the need for parents to learn about and intervene with the issue before it becomes a problem! 

  • Model and discuss what healthy social relationships look like and the feeling they engender before teens start dating.
  • Teach teens effective and assertive communication skills.
  • Discuss the warning signs of DTV, such as extreme demands, jealousy, and controlling behaviors.
  • Make it a point to talk to your teen often about their social life, and provide your teen with the knowledge they need to make healthy decisions.
  • Encourage teens to talk to you right away if things do not feel right in their relationships, and then listen without judgment.
  • If you suspect a problem, get help.

Continue reading

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It is incredibly unnerving for an innocent individual to be charged with a crime and dragged through the criminal justice system, especially if a conviction could lead to serious time behind bars! That is why it is so important for suspects to take advantage of their Fifth Amendment rights and request a local attorney at the first sign of an arrest, then say absolutely nothing without that attorney sitting next to them. 

Release? 

In the best case scenario, the investigators will swiftly appreciate that they have the wrong person in custody and release a suspect with apologies for the inconvenience—but that is not the typical outcome. The district attorney could hear the basics of the case before trial and decide that there is not enough evidence to secure a conviction and instruct police to release the suspect—but that is not something to count on either, nor is it necessarily a permanent solution, as they could always build their case and come after the suspect at a later date.

Plea Bargaining

Next up is a plea deal. While many people who insist on their innocence may feel unenthusiastic about accepting a deal where they acknowledge guilt for a lesser crime, the benefits of plea bargaining can make it worth considering. Whether a defendant eventually accepts a deal or not, it is definitely worth listening to and allowing an attorney to negotiate a positive outcome. If no deal is offered, or if one is rejected, the defendant is heading to a trial.  

Trial

Though television drama makes it appear otherwise, only a minority of cases ever make it to trial. The Marshall Project reports that 94% of state-level felony convictions are achieved through plea bargaining, with just 6% of cases ever making it to a courtroom. Federal rates are even lower, with roughly three percent of convictions coming from a jury verdict. If a case is one of the few to make it to trial, the prosecution is likely feeling pretty confident about its case. The goal for any defendant is an acquittal, of course, or a verdict of not guilty.

Verdict 

It is important to remember that every defendant is presumed innocent until proven otherwise. In a criminal trial, that means it is up to the prosecution to prove guilt beyond a reasonable doubt for every element of the charge. Simply put, the prosecutor, through the evidence they present, must persuade a jury that there is no other reasonable explanation for the crime, so the jury is virtually certain of a defendant’s guilt. The defense simply has to convince the jury that there is a realistic possibility that someone else might be guilty. If that happens, a jury will find the defendant not guilty, and the court will acquit. That wraps it up, and you can never be tried on these charges again.

Hung Jury

When a case is complex or emotional, juries may struggle to come to an agreement on a verdict by the required voting margin. While certainly a better outcome than a finding of guilt, this is a result that could mean another trial is in your future. The excruciating decision to put more time and money into a whole new trial can be hard-hitting. A tough defense attorney will pressure the prosecutor to drop the whole thing at this point, but that decision is exclusively in the prosecutor’s hands. Continue reading

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It can take 30 seconds or less to get a response to your 911 call, but it will not be a uniformed officer that shows up first thing. Instead, police in some California cities and across the country are utilizing drones as first responders that can make it to the scene before a human body can get there.  

Advantages of Drones

Drones have been used as first responders since they got their start in Chula Vista in 2018, and their use can be helpful in a number of circumstances. They are equipped with powerful cameras that can scan an area for blocks, or, if necessary, they have the capacity to zoom in on a specific location or to read an address or license plate. They can witness and record crimes as they occur, providing law enforcement with details and data that can inform officer response to critical situations. 

Examples of Drone Benefits

Law enforcement has been struggling with a crisis of confidence from the public in recent years, so whatever they can do to improve their image is highly valued. Specific issues that have been addressed through the use of drones here in California recently include:

  • They clarified that the objects being carried by suspects were not guns, giving officers the confidence to approach with less aggression and use of force;
  • They caught a robbery on camera, clearly taping the suspects, enabling a quick apprehension and conviction.
  • They have been used to communicate in hostage situations.

Privacy Issues

Of course, no new program comes without some caveats. There are those who have serious concerns about privacy rights and the ethical use of footage obtained by drones. Presumably, there will be more footage for agencies to manage, and there are questions about who gets access to that footage, how long it will be retained, and whether scenes showing positive police action will be shared publicly, while footage of police misconduct might be buried. These matters are addressed differently by each jurisdiction. While departments generally do not allow recordings of places where people reasonably expect privacy, such as in neighborhood backyards, they make an exception when there is an emergency or when they have a warrant. As to who gets to see the videos, departments across the state claim it cannot be released under current records laws, although that is being challenged in court. And while there is no disputing that drones can aid police work in multiple circumstances, the government will also have access to terabytes of information on citizen movements that are unrelated to criminal activity, and, to date, the courts have labeled that an invasion of privacy that is objectionable. In fact, constant aerial surveillance in Baltimore was ruled a breach of 4th Amendment search and seizure rights in 2021, although that case was unlike California’s use of drones, in that here drones are deployed only in response to 911 calls, not to conduct general surveillance.   Continue reading

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Billy Raymond Counterman sent hundreds of thousands of Facebook messages years to local country singer Coles Whalen over the course of about five years. Whalen was finally unnerved enough to file stalking charges against Counterman.  The mountains of comments left Whalen feeling frightened enough that she ultimately felt she had to leave her Colorado home in order to keep herself and her family safe. Counterman was eventually convicted of stalking and sent to prison, which is something that a 7-2 majority of Supreme Court Justices found to be a miscarriage of justice. 

The Messages Counterman Left

What was so disturbing about Counterman’s Facebook messaging? The comments ranged from wholly innocuous to a bit disturbing and, later, to plainly mean. Friendly (but maybe a little unusual and questionable) were pledges from Counterman to bring Whalen fresh garden tomatoes for her to enjoy, as well as comments about how stunning she looked during a recent performance he had attended. Ultimately that turned into expletive-filled outbursts accusing Whalen of being no good for human relations, and ending with, “Die, don’t need you.”

What Constitutes a Threat?

Whalen’s attorney contended that when the volume, frequency, and tone of the messages she received were viewed in total, it became clear that the comments were a precursor to violence. The best way to ensure Whalen’s safety would be to put Counterman for a good, long time. That argument worked in court. Even so, Whalen’s sense of security was darkened, affecting family life, her ability to perform, and her overall sense of contentment.

On the other hand, Counterman’s attorney argued that his client had no intention of harming Whalen, and he most certainly did not comprehend the negative implications of his messages because he suffered from mental illness. His interpretation of the messages was that they were harmless, and therefore silencing him would be an attack on his First Amendment Right to free speech. The law required intent, reasoned the attorney, and should not require one to foresee the reaction of others prior to sending a message.

One D.C.-based attorney, John Elwood, summed it up by saying that if someone’s words are not intended as threats, there is no intent to harm, and therefore a conviction cannot be warranted. The Supreme Court agreed.

California’s Stalking Law

Under California law, stalking becomes a criminal offense once the threats or harassment gets to the point that the victim feels their safety is at risk. That leaves many wondering if the recent Supreme Court decision will have an impact on stalking charges here in the state, as they did in Colorado, or if the impact will be only on federal stalking charges.

Stalking Penalties

An initial charge of stalking could lead to a year in jail and a fine of $1,000. If felony stalking is charged based on a threat of significant harm or death, a defendant could face up to three years behind bars and $10,000 in fines. If the charges are part of a three strikes conviction, it jumps to a mandatory 25-year prison sentence. Continue reading

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