California criminal defense attorney

March 24, 2023

Under What Circumstances Might Criminal Charges be Dismissed?

When facing criminal charges, people are often consumed with anxiety about the future. What will happen to you if you are found guilty? Will the prosecutor aggressively pursue charges, or is there any chance the charges could be dropped before things get that far? These questions and more can be answered by an experienced criminal defense attorney.

Factors Impacting Possible Dismissal

Without question, the best-case scenario would be for the charges to be dismissed early on in the case. That is a possibility, based on purely practical deliberations by the prosecutor, who knows that limited resources might be better spent elsewhere on more serious or more sure-to-win cases. Prosecutors are sometimes willing to drop the charges for first-time offenders, especially when low-level or non-violent crimes are involved. Certainly, there are always cases where prosecutors are willing to plea bargain away possible incarceration, depending on what you might have to offer. Lastly, dismissals sometimes occur due to an error or misconduct by police or prosecutors, including:

Errors in charging documents or criminal complaints;
Chain of custody issues relating to evidence in the case;
Tainted or missing evidence;
Improper searches or stops;
Arrests lacking probable cause;
Changes in witness testimony.

Elements of a Crime

It is conceivable that defense attorneys convince prosecutors that they do not have enough evidence, being that the prosecution has the burden of proving their case beyond a reasonable doubt. What does that entail?

A crime occurred due to the actions or omissions of the defendant (Actus Reus).
The defendant knew that their action (or lack thereof) would result in a crime (Mens Rea).
If the crime is identified by some sort of harm, additional issues must be proven beyond a reasonable doubt.
Either a specific victim or society, in general, was harmed by the actions of the defendant.
The harmful outcomes were the result of a crime.
Other issues related to the crime (known as attendant circumstances) include the time and place of the crime, relevant facts about the victim, procedures involved in the crime, motives, and other facts specific to the crime must also be explained to a jury and convince them beyond a reasonable doubt.

When a prosecutor believes they do not have the facts to prove their case, it gives the defense more ammunition to argue for a dismissal. Continue reading

February 24, 2023

Confidential Informants

by David M. Boertje

On television, confidential informants (CIs) help to put the bad guys behind bars, right? Except that, even Hollywood sometimes depicts these individuals as self-serving criminals who are willing to say and do whatever it takes to secure a better deal for themselves and their own legal hassles. And since the use of these informants is basically unregulated by courts, law enforcement has free reign as they wheel and deal in order to “prove” their cases and nab their suspects.

False Testimony

The incentive to lie is indisputable in most cases because CIs generally work under a give-and-take agreement: information is exchanged for benefits—like perhaps some assistance with their own legal perils. If an informant can significantly reduce their own time behind bars by giving investigators the juice they are looking for, why not? If law enforcement does not validate information by corroborating with another trustworthy source who is not getting a benefit for the testimony, why wouldn’t an informant who could use a little good luck, or one who battles addictions or other mental health issues, make a deal to improve their circumstances even if they have to embellish a little bit?

January 10, 2023

California Hit-and-Run Defense

by David M. Boertje

Have you been charged with leaving the scene of an accident? Perhaps you were confused, afraid, or in shock. Maybe it was not even you behind the wheel. In any case, it is crucial that you have a fierce, knowledgeable criminal defense attorney working on your behalf the minute you are charged.

California Statistics

With 17% of all hit-and-run fatalities occurring here in the Golden State, the rate of hit-and-run incidents has been on the rise. California tops the nation for the worst rate of fatalities due to such accidents—well over 3,000 annually. The most likely to be killed? People aged 25 to 34.

Why Drivers Leave the Scene

There are plenty of reasons drivers decide to leave the scene of a traffic accident—none of which provide much consolation to the victims. Without question, such drivers come from every walk of life. While some may imagine every hit-and-run driver to be an alcoholic or a career criminal, the truth is that students, the elderly, the working class, the wealthy, and everyone else are all represented in hit-and-run statistics. So, why do even the most respectable members of our communities leave the scene after an accident? In general, drivers are fearful of consequences.

In some cases, they may be driving a vehicle without the owner’s permission;
If the collision was with a parked vehicle, the driver may rationalize it is no big deal.
If they are driving a rental vehicle, they may presume they can get away with it unscathed;
They could be afraid of police contact due to an outstanding warrant, being in the country illegally, or being under the influence of drugs or alcohol;
The driver may be worried about employment repercussions if it involves a company vehicle;
The driver may be in shock;
Perhaps the car lacks mandatory insurance, and the driver is concerned about financial repercussions;
Some drivers may not be aware that they hit something;
They may have been drunk or high at the time of the incident.

Legal Penalties

Hit-and-run drivers may be struggling with remorse, but the legal penalties headed their way could make their lives much, much worse.

Every incident is different, but the penalties increase depending on the driver’s history and whether there were injuries or fatalities. For a misdemeanor hit-and-run—say, hitting a parked car — a driver could be slapped with six months behind bars and $10,000 in fines, along with restitution for damages. If there are injuries related to the hit-and-run, you could face felony charges, and the incarceration time could be bumped up to as long as three years in prison. With an enhancement to vehicular manslaughter—the driver has left the scene fully knowledgeable that there was likely an injured individual involved — another five years could be added to the sentence. Continue reading

December 30, 2022

What to Do After an Arrest

by David M. Boertje

After experiencing an arrest, you are probably experiencing a jumble of emotions, including trepidation, disbelief, embarrassment, and fury. How will an arrest impact your immediate and long-term future? Regardless of the circumstances, when you have an experienced and tenacious criminal defense attorney by your side, the outcomes will likely be better for you.

Understanding Your Miranda Rights

If the arresting officers have done their job right, you have been advised of your Miranda rights. Listen carefully and understand that the Miranda warning is no joke! When you were told that you have the right to remain silent and that whatever you say could be used against you in court, they are not kidding. So stay calm, and respectfully tell them that you will not speak with them until your attorney is present. Do not allow officers to bait you into responding to their queries or commentaries; do not defend yourself or try to explain your side of things. Remain silent.

If You Were Not Mirandized

There are only certain situations in which an officer may not Mirandize you:

The officer was not acting in accordance with the law.
When the questioning by police occurs before an arrest or custody.
When public safety is in jeopardy, such as when an assailant is at large.
In some DUI or other cases when there is no intention of interrogating you following arrest.
When the arrest involves a juvenile, who cannot legally be questioned without their parents or guardians present.
When questioning is being done by someone other than police, like perhaps a security guard at a store.
When police are simply getting your identifying information.

When Your Attorney Arrives

Once your attorney is present, they will advise you about how much you should say to the police. Your attorney will guide you and will outline your options and potential defense strategies. Depending on the circumstances, you may discuss the following:

Convincing police to dismiss all charges: In some cases, the police will quickly learn that they have the wrong person in custody.
Demanding a reduction in charges: Law enforcement may be convinced to offer lesser charges that are more appropriate in your case.
Striking a plea deal: You may be willing to trade information/testimony for lesser charges.
The potential for inclusion in a diversion program: You may be eligible for drug court, mental health court, or military diversion rather than incarceration.
Fighting all charges: You may wish to plead not guilty and fight all charges.
A guilty plea.

December 23, 2022

When an Angry Ex Accuses You of Child Abuse

by David M. Boertje

You survived a miserable divorce and thought you had made it through the worst of it—but you could not have been more wrong. After a nasty custody battle that gave you limited visitation, now your ex is accusing you of the worst thing imaginable: hurting your own children. Your life has been turned upside down, and you know things can get much, much worse. Now, more than ever, you need a tough, no-nonsense criminal defense attorney fighting for your rights.

Criminal Penalties

In addition to the obvious damage to your relationship with your children, you are facing some serious penalties if convicted of these crimes:

Child Neglect: If you are found guilty of neglecting your children while they are in your care—failing to provide proper food, shelter, supervision, and so forth, you could face a year in the county jail, on top of $2,000 in fines.
Child Abuse: Intentionally inflicting physical harm on children is a serious matter, and a guilty verdict could put you in prison for six years, in addition to fines as high as $6,000.
Child Molestation: When children suffer sexual molestation at the hands of an abuser, that abuser could go to prison for eight years for each act of molestation.
Continued Sexual Abuse: When convicted of three or more acts of sexual abuse of a child, an abuser could go to prison for 16 years.

Defending the Case

Defending child abuse cases can be tricky because emotional testimony by a hysterical ex is convincing, especially if there is physical evidence to indicate the possibility of abuse. Sometimes children are manipulated by a vengeful parent or are eager to please that parent, ultimately sharing fabricated stories that they have no idea will destroy your life. The truth is society is eager to protect children and will frequently find a defendant guilty on the slimmest of evidence. That is why it is critical that you take immediate steps to protect yourself:

Do not speak to anyone, including the family, friends, and the police, about the charges without having your attorney present.
Do not have anything on social media that might present you as anything short of a model citizen and loving parent.
Share details of all child visits with your attorney, as well as the history of your relationship with your ex.
Help your attorney to gather a list of personal references—preferably those who have seen you interacting with your children.
Cooperate fully with Child Protective Services and their investigation.
Do not contact your ex or your children in an effort to understand the charges or convince them to drop them.

December 16, 2022

The Challenges for Transgender People in Lock Up

by David M. Boertje

Most transgender people can tell you that they have suffered discrimination and harassment for as long as they can remember. This, in itself, is a problem. But perhaps even more concerning is when cruelty and mistreatment come from the very authority figures who are entrusted to protect and defend them.

Fears of Police

The statistics are disturbing: Almost six in 10 transgender individuals are reluctant to seek out law enforcement assistance when they need it. That is because members of the transgender community – particularly trans people of color – feel that they are often profiled and harassed by police.

Incarceration

Unfortunately, the persecution does not end after transgender people are arrested and locked up. The rates of exploitation and violence are dreadful—with physical and sexual attacks by fellow prisoners occurring at 10 times the rate of other inmates. Even less palatable is the fact that they are assaulted by staff at five times the rate of other inmates. On top of these attacks, transgender inmates report long periods in solitary confinement and the denial of essential medical attention. In total, more than one-third of transgender individuals report having been raped while in prison—and that number is thought to be on the lower side of reality.

Housing Issues

One of the biggest challenges for transgender people upon incarceration is the fact that they are nearly always housed based on their gender assignment at birth, not their current identity. Transgender women are thus locked up with men, which puts them at substantial risk of rape and other violent acts. Even when they request to be relocated to women’s facilities, these women are usually denied transfers. This is despite laws requiring states to evaluate placements on a case-by-case basis and to consider where inmates would feel the safest. In fact, only about a dozen of the nearly 5,000 transgender people currently in state prisons are housed based on their lived gender identity.

Federal Laws

Along with asking trans people where they would feel safest, federal law requires an interview twice yearly thereafter These inmates’ concerns and their experiences with violence are supposed to be weighed as officials make housing determinations. The Prison Rape Elimination Act (PREA) is intended to protect all prisoners and specifically transgender people, who are at the highest risk of violence. States who refuse to comply are supposedly at risk of losing significant federal funding—but it does not seem to play out as intended. Some believe that is because specific benchmarks are not laid out, giving states the leeway to do as they please. Continue reading

December 1, 2022

Which is Better: a Settlement, a Bench Trial, or a Jury Trial?

by David M. Boertje

When facing criminal charges, the possibility that the case will be settled before you ever make it to court is very high. The National Association of Criminal Defense Lawyers (NACDL) reports that fewer than 3% of criminal cases ever make it to trial in this country. That is true for both state and federal charges. What happens instead? In the majority of cases, a plea agreement is reached, allowing defendants to accept lesser charges in exchange for a reduced sentence and/or other concessions. Even so, every criminal defendant is guaranteed the right to a trial by a jury of their peers, and that option is available regardless of the charges. In some situations, defendants waive that right in favor of a bench trial where a judge determines the outcomes. Which option is best?

Understanding a Plea Deal

There is no single correct answer to that question. Every case is different, and a defendant must carefully weigh the opportunities and possible consequences of each with the counsel of a trusted defense attorney. Some of the issues that should be considered if a plea bargain is offered include:

When a defendant agrees to a guilty plea, it will likely result in a more bearable sentence than in the worst-case scenario of a guilty verdict, so if the prosecution has a strong case, it may be worth considering;
Trials can be extremely expensive, when you add up attorneys fees and court costs;
If you plead guilty, it will put a stain on your record, which could have long-term consequences in terms of employment, housing, relationships, and more;
The potential of a not-guilty verdict and escaping penalties altogether may be promising.

Bench Trial or Jury Trial?

In the event you do decide to move forward with a trial, are your chances better with a jury or a bench trial? While it is definitely impossible to know for sure, there are some factors worth taking note of:

If the case is high-profile, it may be difficult to find impartial individuals to serve on the jury.
Some judges have a past record that gives a clue about how they rule in particular types of cases. Are you looking at someone who has a record of lenience or someone who throws the book at defendants in similar cases?
If your case relies strongly on highly technical issues, they may be beyond a jury’s understanding, whereas a judge understands the intricacies of the law. It is possible that an objective judge who is accustomed to applying the facts to the law will give you a better shot at justice.
If the facts of the case are inflammatory, a jury might be influenced by juicy, though immaterial, factors that a judge would be able to ignore.
On the other hand, are there mitigating facts that might make you seem more sympathetic to a jury but that a judge would consider inconsequential based on other factors?

November 25, 2022

Criminal Charges for Retail Theft

by David M. Boertje

Traditionally the holidays are a time when retailers experience an escalation in retail theft. Whether it is a case of beer or a pearl necklace, the law sees it all the same. Shoplifting costs retailers, insurance companies, and consumers every single day. And if you are caught in California, you will be the one to pay the price. That is why finding an experienced local criminal defense attorney would be a good move right about now.

Prevention

Retailers take the theft of their merchandise seriously and are doing whatever they can to put a dent in retail theft. In addition to providing employees with better training so they can spot shoplifters, many retailers are hiring undercover personnel who pretend to be shopping while keeping an eye out for would-be thieves. Technology is helping, too. As everyone knows, cameras are everywhere these days, tracking the movements of customers and of thieves. Pricier items may be under lock and key and often contain tags that set off alarms in the event of a theft.

If You Have Been Stopped for Shoplifting

Let’s say that you have been stopped by a store employee who thinks you have been trying to lift something without paying. What should you do? For starters, let’s talk about what you should not do:

Never try to talk your way out of it.
Do not attempt to explain, argue, or physically resist a store employee, security staffer, or police officer.
Do not give your personal information to store employees.
Never sign anything.

Instead, here is what you should do:

If a bonafide police officer questions you, tell them your name.
Ask to speak to your attorney straight away.
Say nothing to managers, loss prevention individuals, or anyone else.

After an Arrest

The number one rule following an arrest is this: Keep your mouth shut. You should have been advised of your Miranda rights. Say nothing beyond expressing your desire to speak to your attorney.

California Penalties for Shoplifting

Shoplifting, which is defined as going into a business that is open intending to steal merchandise worth $950 or less, is taken seriously in California. Offenders could wind up in jail for as long as six months, on top of having to pay fines up to $1,000 and pay restitution to the store owner. And that is for simply attempting to steal something—whether or not you are successful. If the theft involves merchandise valued at more than $950, charges of grand theft can result, which could mean up to three years behind bars and $10,000 in fines. Naturally, repeat offenders could see the penalties increase. Continue reading

November 18, 2022

When Police Show Up at Your Door

by David M. Boertje

Let’s say you are home glued to the television when you are startled by a knock on the door. You are not expecting company and are stunned when you look through the peephole and see a couple of police officers outside your door. What in the world are they doing there? You are about to find out.

Knock and Talk

So, you open the door, and the very friendly officers ask if they can come in to ask you a few questions. This is a rudimentary investigative technique police legally use to get their foot in the door with you—literally. Since you have not done anything wrong, you reason that there is no reason to deny them a little chat. The truth, though, is that although you can talk if you really want to, there are a slew of reasons that you should never, ever allow police to enter or search your home or property without a warrant. They could use that chat time to informally eye your place and try to find something they can use against you later. It does not matter how innocent you are. Don’t do it.

Fourth Amendment Rights

Assuming they do not have a warrant, the police cannot conduct a search without your consent. Do not consent: Even if they say it will be better for you if you cooperate, even if they indicate they will just go get a warrant anyway, even if they imply that you could be arrested if you do not cooperate. The Fourth Amendment of the Constitution is clear: You are protected from unreasonable searches. That means that no warrant and no consent equals no search.

It is Just a Friendly Chat, Right?

Now you understand that under no circumstances will you consent to a search, but what is wrong with answering a few questions? Absolutely nothing. But do not invite them into the house. Instead, step out onto the porch to talk. Why? Because there is every possibility that police are there looking for evidence. If they are eyeballing your home as you chat, who knows what will catch their eye? They may fixate on something that gives them probable cause to conduct a full-fledged search. In truth, if they showed up without a warrant, they likely do not have the evidence necessary to really get a warrant. Requesting to take a look around is part of their routine and their right. Politely declining is your right. Not only will it prevent a search in the immediate situation—but it will also give your lawyer ammunition to use in your defense if you wind up in a courtroom based on the encounter.

But There is Nothing Illegal in Your Home!

You may be thinking, there is nothing that could possibly pique the interest of an officer anywhere in your home! Why all the fuss about refusing entry to officers? Let ‘em in; have a looksie! There is nothing in your teenager’s room; nothing in your bathroom trash can; nothing in your spouse’s underwear drawer! You’ve never had a guest inadvertently leave anything the cops might find interesting. Well, come to think of it, you really can’t be 100% certain that nothing would be noteworthy to a law enforcement officer. The point is you have nothing to gain by letting the police look at your place. Nothing. Conversely, who knows what could go wrong and what you might have to lose? Continue reading

November 11, 2022

Avoiding Holiday Lockup and Long-Term Effects

by David M. Boertje

For many, the holidays are a time of togetherness and celebration. Regrettably, not everyone has the opportunity to enjoy those wonderful family dinners and city lights. Sometimes allegations of criminal activity get in the way of the festivities.

Arrests During the Holidays

As most people know, arrests do not drop off simply because the holidays are ahead. Instead of getting locked up and suffering other penalties, you can enjoy the joy of the season by staying out of trouble with the law. Some of the common reasons people get arrested during the holidays include the following:

Drinking and Driving: We all know there are ample prospects for partying between Thanksgiving and New Year’s Eve. But getting a DUI is no way to enhance your holiday joy! If you are stopped with a blood alcohol limit of .08 or higher, you are pretty much assured of a night in jail, with costly additional penalties as a bonus. Assuming you do not injure or kill anyone, it could be a relatively short stay, but additional consequences will last long beyond the night of the arrest. So use your head: don’t drink and drive!
Family Violence: Financial pressure, demands from extended family, and infuriating crowds everywhere you go — it can all get to be more than a little challenging. The stress of it all can lead to clashes among family members.
Airport Contraband: For those who travel during the holidays, be sure you do not bring anything that will get you in trouble with the TSA, and make sure you know the laws in any state you visit. TSA does not permit marijuana at all—so do not bring it on the plane. And guns are never allowed in carry-on luggage. Be careful what you pack.
Porch Pirating: With the increased online shopping during the holidays, porch pirates are ever tempted to steal merchandise, even during broad daylight. But with all the doorbell cameras out there, getting caught is easier than ever. Plus, law enforcement place dummy packages to bait thieves. So, whatever you do, stay off of strangers’ porches.
Shoplifting: For those who wish to boost their holiday haul without paying for the merchandise, there is a real risk of being seen by the many cameras around these days, not to mention undercover security personnel and others. Retail theft is a major problem during the holidays, and in California, it can result in significant jail time.