A person is stopped for a traffic violation and gives the officer a bogus liability insurance card when asked for proof of insurance. When the officer asks about the card, the suspect says that he bought from a lady for $150. Is this a Class B misdemeanor under 37.10(d)(1) or a second degree felony under 37.10(d)(3)? The argument for the Class B misdemeanor is that he was obviously presenting or using the document and did not have the intent to defraud or harm another by merely possessing it or handing it to the officer. On the otherhand, did the actor have the intent to defraud or harm another by merely possessing the document and handing it to the officer?
There are many times that I think that this offense is being overcharged, especially when you are dealing with motor vehicle inspections, registrations and liability insurance.
Thank you for your input.
Hate to say it, but maybe this statute fails to clearly prescribe what punishment attaches to what conduct. cf. Stevenson , 167 S.W.2d 1027. Didn't your guy also possess the record with intent that it be used unlawfully- a third degree felony under (a)(4); (d)(2)(A)? I tend to agree there was no intent to defraud (unless you argue he was looking to avoid paying a fine to the State), and while driving without insurance can be quite harmful, the mere presentation of a false certificate of insurance doesn't seem to cause much direct pecuniary or physical "harm" (unless you argue all the anguish and time the officer must endure in sorting out the truth). One has to wonder what the legislature envisioned in these provisions as meriting the jump from a Class B to a 2nd Degree based solely on the intent of the actor. These certificates seem to be pretty easy to forge, so I'm wondering too why anyone would pay $150 for something he can pretty easily create on his own. He might have purchased a month of insurance for the same amount and gotten an authentic certificate.
I disagree. I think that if a person shows a fake insurance card to a police officer they have demonstrated the intent to defraud the officer into believing that they have complied with the law and are covered by insurance! The same goes for fake inspection stickers. Now, whether that conduct should be a second degree felony is a different matter.
I prosecuted a manslaughter case, however, where the car the defendant was driving had a fake inspection sticker. The condition of the car was so bad that it was virtually unsteerable and the legitimate inspector who had denied a sticker came forward after he heard about the wreck and gave a statement to the effect that he had denied it after driving about 100 feet. Defendant hit a bicyclist and killed him.
I'm guessing that if I had ever been hit by an uninsured driver that I wouldn't think a second degree felony was too much if they gave me a fake insurance card.
Perhaps if the SU had been in an automobile accident and presented the fake insurance card to either the other party and/or the officer...then is there an intent to defraud or harm another? Then the SU is presenting the card with the hope of not getting sued for the damages. However, if the SU could not purchase automobile insurance, then chances are the injured party will never see a dime for her/his auto damages nor for any personal injuries that may have occurred - which could be substanstial.
So, it seems that this statute is needed as an incentive for non-insured drivers to either obtain real insurance, take the bus, or face real criminal sanctions.
If I was the injured party on the other side, I would definitely want there to be criminal sanctions for the person with the fake ins. card. And since, at least in our area, it is a very real problem having uninsured motorists driving around - if they are caught with a fake card and knew it was fake when they bought it = fraud to me.
The failure to purchase or maintain the minimum policy of insurance is clearly done with the intent to deprive someone who might collect the benefits or proceeds of the policy of a right or property by fraud. But the statute does not necessarily say anything about intent to deceive, and not all deceit is "fraud", and this particular statute does not directly punish the failure to maintain insurance (if you are going to operate your own vehicle). So, what facts fall within the Class B scenario, if the mere "use" of the card is almost always with felony intent? I guess it would be use of a fake card when you actually had insurance (or thought you did). I guess then the issue becomes, does that conduct ever merit 6 months in jail or a $2000 fine?
It still seems to me the wording of this stature could be improved upon- and may need to be to be enforceable.
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