It is standard practice for the police to ask for your name and identification after arresting you. But what if you refuse? Many people know that they have a Fifth Amendment right not to incriminate themselves, which means they can remain silent if they wish. Does that right apply in this situation? Can you legally refuse to give your name? Our Galveston criminal defense attorney reviews the law at issue and your available defenses.
Failure to Identify is a Texas Crime
Under Penal Code section 38.02, it is a crime to intentionally refuse to provide your name, address, or date of birth to a peace officer when requested after a lawful arrest. This is a Class C misdemeanor in Texas, which can result in a maximum fine of $500 but no jail time.
It is also a crime to give a fake name, residence, or date of birth to a police officer when lawfully arrested or detained, or if the police officer has cause to believe you are a witness to a crime. This is a Class B misdemeanor, which can send you to jail for a maximum of 180 days and result in a $2,000 fine.
If you were a fugitive from justice at the time, then refusal to identify yourself after lawful arrest is a Class B misdemeanor. This offense gets upgraded to a Class A misdemeanor if you gave fake identifying information as a fugitive from justice. A Class A misdemeanor can send someone to jail for a maximum of one year in jail and a $4,000 fine.
Does the Fifth Amendment Protect You?
Although you do have the right to remain silent, this right typically does not include a right to refuse to identify yourself. The U.S. Supreme Court considered this issue in Hiibel v. Sixth Judicial District Court of Nevada in 2004. The Court held that in most cases, simply giving your name to an officer is “so insignificant” that it would be incriminating in only “unusual” situations.
There may be exceptions, such as when providing your name leads directly to incriminating evidence of a “separate offense.” We will certainly consider whether that applies, but we also will look to other defenses.
How Do You Defend Against Refusal to Identify Charges?
Some of the more common defenses are:
- Lack of intent. You didn’t intentionally refuse to give your name or lie. You might have been having a medical episode or panic attack, which means you couldn’t speak at the time.
- Unlawful arrest or detention. You haven’t committed a crime under the Texas statute if the arrest or detention lacked probable cause.
- No reasonable belief you are a witness. That is a predicate in some cases.
Helpfully, the state needs to prove each element beyond a reasonable doubt, and there could be confusion about what was said or whether you were even asked to identify yourself. You certainly have no obligation under the law to volunteer that information.
Contact Tad Nelson Today
Our team of Galveston criminal defense attorneys can defend you against this or other misdemeanor charges. Contact us if you have questions.