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Failure to Identify: In need of clarification from some of you JD's Login/Join 
For my concerns, PC 38.02 clearly provides two offenses of Failure to ID. One is the refusal to provided your name, DOB, and address when you have been lawfully arrested (Class C Misd.). The other provides an offense when a person gives a false or fictitious name to a peace officer when the person has been lawfully arrested OR detained (Class B Misd.)

I have read case law that maintains a person is not required to talk to a peace officer (or anybody else for that matter). The argument goes that a person who is not arrested is not required to talk to a peace officer. However, when the person is the subject of a lawful arrest (not detention) the person is statutorily required to provide his name, DOB, and address. If the person refuses to provide his name, DOB, or address while they have been lawfully arrested, they have commmitted a class C misdemeanor FAILURE TO IDENTIFY-REFUSING TO GIVE INFO.

On the other hand, when a person takes an affirmative step to lie about his name, DOB, or address, they have committed an offense (as long as they were being lawfuly detained or lawfully arrested) amounting to a class B misd. (thanks to the 78th Leg. Session).

There is a clear difference in the application of "detention" and "arrest" in this statute. Excluding traffic stops for examples in this posting (traffic stops require a person to display a DL for identification purposes), assume that a peace officer initiates a casual encounter with another person who says his name is Bob Smith (but his real name is Bill Smith). The PO later finds that Bob (Bill) is a fugitive, and the PO arrests him shortly therafter for the warrant and also charges him with failure to identify (false name). Due to the initial encounter being casual, Bob had no obligation to tell the PO anything, but as it ended Bob got busted for a Class A Fail to Identify. (Bear with me here!)

In this scenario, the charge would not be sound (right or wrong?) I believe it would not meet the elements of 38.02. However, if the scenario is changed to show that Bob was being detained as a suspect in a DOC fight in a mall, then the elements would be met (right??) 'cause Bob is being lawfully detained by the PO investigating the alleged crime. Take it one step further, and with Bob being lawfully detained by the PO, Bob has no duty or legal requirement to talk to the PO (right--he has the right to remain silent and not incriminate himself?), and now assume Bob (Bill) simply refuses to say anything. Does the PO have the required elements to charge him with a Failure to Id--Refusal to provide NAME, DOB, or Address. (I don't think so??) Only when the PO meets the level of probable cause for an arrest and actually makes an arrest for some other charge would the PO meet the minimum elements for a Fail to ID--Refusal.

I know there has been a recent Supreme Court decision (A Wyoming case ?? I think) establishing the validity of a PO's request for identifying information when the person has been DETAINED (not arrested). The case established that the state's interest outweighs the person's interest in not incriminating himself by speaking--and by providing mere identifying information about one's self, there is no constitutional issue of self incrimination. Soooooooooooooo, with all this said, I need some guidance on how 38.02 is being pursued in cases of lawful detentions when a person flat out refuses to provide the identifying information set out in 38.02???????

Posts: 46 | Location: Seguin, TX, USA | Registered: April 02, 2004Reply With QuoteReport This Post
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Bob, What you really want to know is whether your prosecutor agrees with your interpretation and how they would approach it if it came up in your jurisdiction. So, as a friendly suggestion: ask that prosecutor, rather than trying to poll the rest of us.
Posts: 341 | Location: Tarrant County, Texas | Registered: August 24, 2001Reply With QuoteReport This Post
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