Failure to Identify is one of the more confusing misdemeanor offenses in the Texas Penal Code. If a cop approaches you and asks you to identify yourself, can you refuse to answer? What are the consequences of making up a fictitious name? What if there is a warrant for your arrest?
The basic gist of Failure to Identify is that the accused person fails to give identifying information about himself when lawfully arrested or detained. Identifying information includes “name, residence address, or date of birth.” TEX PEN CODE s38.02(a).
The level of offense varies based on not only the type of information given (or withheld), but also on whether or not the person withholding the information is a “fugitive from justice” (i.e. there is a warrant for the person’s arrest.)
Refusing to Identify
For example, if a person intentionally refuses to give his name, date of birth, and residence address to a cop who has lawfully arrested the person—if the person gives the police the “silent treatment” so to speak—the offense is a Class C misdemeanor (the same level of offense as a speeding ticket.) TEX PEN CODE s38.02(a) and (c)(1). Unless the person is a fugitive from justice (i.e. there is a warrant for the person’s arrest), in which case the silent treatment will earn you a Class B misdemeanor (up to 180 days in county jail, and/or up to a $2,000 fine.) TEX PEN CODE s38.02(d)(1).
Providing False or Fictitious Identifying Information
But…if a person intentionally gives a false or fictitious name, residence address, or date of birth to a cop who has lawfully arrested, detained, or requested information from a person whom the cop has good cause to believe is a witness to a criminal offense, then the offense is a Class B misdemeanor (up to 180 days in county jail, and/or up to a $2,000 fine.) TEX PEN CODE s38.02(b)(1)-(3). Note that for a false or fictitious name, the officer need only lawfully detain the person—no formal arrest is required. Thus, where a person has not been placed under arrest or detained at the time the false information is given, a conviction for Failure to I.D. cannot stand. See Quick v. State, 999 S.W.2d 79, 80-1 (Tex.App.—Houston [14th Dist.] 1999, no pet.). But, where the person is a fugitive from justice, giving a false or fictitious name is a Class A misdemeanor (up to 1 year in county jail, and/or a fine not to exceed $4,000.00). TEX PEN CODE s(d)(2).
Simplified
So, for purposes of simplifying:
Silent Treatment, No Warrant = Class C
Silent Treatment, Warrant = Class B
False Information, No Warrant = Class B
False Information, Warrant = Class A
But, what do “false” and “fictitious” mean?
Neither word is defined in 38.02, so the common, ordinary usage of each is used by courts. “False” has been held to mean “not true” and “may encompass an intent to deceive.” See Freeman v. State, 45 S.W.3d 655, 656 (Tex.App.—Houston [14th Dist.] 2000, pet ref’d.). “Fictitious” has been held to mean “not real” or “imaginary” and also may encompass an “intent to deceive.” Id. What is, in my opinion, critical to note here is that basically damn near anything other than your actual, Christian name could be “false” or “fictitious.” So, if you decide to forgo the “silent treatment” and give the police your name, make sure it is your actual name.
Recall also that Failing to Identify yourself by giving a fictitious name is a crime of moral turpitude. Failing to Identify yourself by refusing to give your name or information is not a crime of moral turpitude. (See previous blog on Crimes of Moral Turpitude from May 28, 2014.)
The Takeaway
Refusing to identify yourself to a police officer who has lawfully detained or arrested you is an offense—the specific level of offense depends on how you refuse to identify yourself. The difference in punishment can be as vast as the gap between a Class C misdemeanor (which can only be punished by a fine of up to $500, and cannot be punished by jail time) and a Class A misdemeanor (up to 1 year in jail, and/or a fine of up to $4,000.00)
Saying nothing, or refusing to answer, clearly carries less substantial penalties than does providing false or fictitious information. If you insist on not identifying yourself, remaining silent or refusing to answer is the route which carries the least serious punishment.
If a warrant exists for your arrest (or you are otherwise a “fugitive from justice”), the penalties increase. The presence of a warrant “enhances” the offense by one level—a Class C becomes a Class B, and a Class B becomes a Class A.