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Thread: Failure to identify - recap for the cops that skipped that class.........

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    Failure to identify - recap for the cops that skipped that class.........

    Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
    (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
    (c) Except as provided by Subsections (d) and (e), an offense under this section is:
    (1) a Class C misdemeanor if the offense is committed under Subsection (a); or
    (2) a Class B misdemeanor if the offense is committed under Subsection (b).
    (d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
    (1) a Class B misdemeanor if the offense is committed under Subsection (a); or
    (2) a Class A misdemeanor if the offense is committed under Subsection (b).
    (e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 869, Sec. 1, eff. Sept. 1, 1987. Acts 1991, 72nd Leg., ch. 821, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1009, Sec. 1, eff. Sept. 1, 2003.

    IT IS NOT AN OFFENSE TO REFUSE TO GIVE YOUR NAME, ADDRESS OR DATE OF BIRTH IF: 1. YOUR ARE NOT LEGALLY DETAINED OR 2. IF YOU ARE LEGALLY DETAINED. iT IS ONLY AN OFFENSE TO REFUSE TO PROVIDE THE ABOVE INFO IF YOU ARE LEGALLY ARRESTED. IF YOU ARE LEGALLY DETAINED THEN YOU CANNOT PROVIDE FALSE NAME, ADDRESS OR DOB, BUT YOU CAN REFUSE TO PROVIDE THAT INFO. IF YOU ARE NOT LEGALLY DETAINED THEN YOU CAN LIE, REFUSE OR DO WHATEVER.......

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    Regular Member Fallschirmjäger's Avatar
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    D'ya get the feeling that sometimes some* cops are lazy and only read the big words when it comes to statutes, "Failure to Identify" and never bother to ...y'know actually read what the statute says?

    *some, meaning "an unspecified amount or number of" and not "all" as we don't wish to paint all officers of the law with a broad brush.
    Last edited by Fallschirmjäger; 05-04-2015 at 05:42 PM.

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    Regular Member Maverick9's Avatar
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    Quote Originally Posted by Count View Post
    Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
    (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
    I separated these since I'm not sure both are part of the 'Law'.

    IT IS NOT AN OFFENSE TO REFUSE TO GIVE YOUR NAME, ADDRESS OR DATE OF BIRTH IF:
    1. YOUR ARE NOT LEGALLY DETAINED OR
    2. IF YOU ARE LEGALLY DETAINED. iT IS ONLY AN OFFENSE TO REFUSE TO PROVIDE THE ABOVE INFO IF YOU ARE LEGALLY ARRESTED. IF YOU ARE LEGALLY DETAINED THEN YOU CANNOT PROVIDE FALSE NAME, ADDRESS OR DOB, BUT YOU CAN REFUSE TO PROVIDE THAT INFO. IF YOU ARE NOT LEGALLY DETAINED THEN YOU CAN LIE, REFUSE OR DO WHATEVER.......
    The weak point in these is that the cop or LEO that is applying them only remembers part of it.

    They might read '(1) Lawfully arrested', or '(2) Lawfully detained', but omit the 'Lawfully' part. It's a fine point in the law but a HUGE point in application.

    If you are stopped and questioned and there's no RAS, then you are NOT -lawfully- detained, yet if you do not comply you are treated as though you WERE lawfully detained.

    To me it's badly written. It needs to emphasize the crucial part not breeze past it. Those applying it and studying it (the LEO) should have a strong emphasis on the 'what is lawfully' and when you CAN'T apply this. For example 'on foot'.

    They apply it in traffic stops, and then get used to having complicity failing to discern that while any traffic stop IS a legal detainment, other times it is not necessarily a legal or lawful detainment.

    In fact people on forums hoping to get advice cite examples and you have to ask them WERE YOU DRIVING or ON FOOT. It makes all the difference.

    FWIW
    Last edited by Maverick9; 05-04-2015 at 05:58 PM.

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    I would want to check other angles, too. Government is pretty goofy about this sort of thing.

    For example, are there any state statutes about obstructing a police officer?

    Are there any TX court opinions that held that refusal to identify during a detention amounted to obstruction?

    Brown v Texas was one of the early cases on identity. At that time, the statute prohibited and penalized refusing to identify yourself to a cop. SCOTUS said in so many words, nope, police gots to have a reason to detain somebody first, meaning it violates the Fourth Amendment for police to just seize someone and demand his identity just because they want to know. I can't imagine the legislature or police have left that door wide open since then. I wouldn't mind being wrong. I would just urge lots of caution and really checking all the angles before deciding on tactics.
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    The latter part with all capital letters was my explanation and is not part of the law. Thanks for clarifying Maverick9

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    Quote Originally Posted by Citizen View Post
    I would want to check other angles, too. Government is pretty goofy about this sort of thing.

    For example, are there any state statutes about obstructing a police officer?

    Are there any TX court opinions that held that refusal to identify during a detention amounted to obstruction?

    Brown v Texas was one of the early cases on identity. At that time, the statute prohibited and penalized refusing to identify yourself to a cop. SCOTUS said in so many words, nope, police gots to have a reason to detain somebody first, meaning it violates the Fourth Amendment for police to just seize someone and demand his identity just because they want to know. I can't imagine the legislature or police have left that door wide open since then. I wouldn't mind being wrong. I would just urge lots of caution and really checking all the angles before deciding on tactics.
    No! Interference with public duties doesn't apply. I've never seen any arrest for that in response to refusing to identify. What I've seen is people mistakenly get arrested for Failure to identify and then sometimes they try to add a charge, so the refusal can be chalked up to refusal after arrest.... Let's say you are detained on a pedestrian violation: walking on the wrong side of the roadway. If you refuse to identify yourself, you could be arrested on the pedestrian violation (which is a class C). Now that you got arrested for that you need to identify yourself or face another class C charge for Failure to identify or Class B if you are wanted...... Notice that after arrest Failure to identify is lower level offense than before arrest if you lied about your name, address or DOB........ Before arrest if you refused it is not Failure to ID but if you lied it would be a Class B or Class A if you are wanted..... Hope that clarifies......

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    Regular Member solus's Avatar
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    interestingly, when it was brought up on another Texas thread about tying OC to the CC privilege card and the nice LEs determining if the individual OC'g in fact has a CC privilege card so the individual is lawfully OC'g!!

    yet everyone on the other thread poo paw'd and exulted the amendment put into the bill to prevent LE from asking...now there is another provision where the nice LEs can demand ID...NICE!!!

    ipse
    Last edited by solus; 05-04-2015 at 07:29 PM.
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    Quote Originally Posted by solus View Post
    interestingly, when it was brought up on another Texas thread about tying OC to the CC privilege card and the nice LEs determining if the individual OC'g in fact has a CC privilege card so the individual is lawfully OC'g!!

    yet everyone on the other thread poo paw'd and exulted the amendment put into the bill to prevent LE from asking...now there is another provision where the nice LEs can demand ID...NICE!!!

    ipse
    I think you are talking about the Amendment to HB910 that passed prohibiting police from asking for papers just because you are open carrying without any other cause for detention......... Currently it looks like the Senate will quickly adopt HB910 as is and pass it...... That means that police won't be able to ask for your permit or id just because you are openly carrying...... It appears that will be the version that will pass..... It's anyone's guess, but it certainly appears that way......

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    Regular Member solus's Avatar
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    count, thanks for quantifying that...so your perception the HB currently under consideration would take precedence over the nice LEs who might fail to read, understand, and appropriate apply he 36.02?

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Quote Originally Posted by solus View Post
    count, thanks for quantifying that...so your perception the HB currently under consideration would take precedence over the nice LEs who might fail to read, understand, and appropriate apply he 36.02?

    ipse
    Yes.....

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    Regular Member Maverick9's Avatar
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    Quote Originally Posted by solus View Post
    count, thanks for quantifying that...so your perception the HB currently under consideration would take precedence over the nice LEs who might fail to read, understand, and appropriate apply he 36.02?

    ipse

    Non sequitur
    . Do you really think someone who puts their life on the line WRT important laws fails to 'read' or fails to 'understand' them? We here, are not even in that line of work, yet we read and understand.

    Let's not promulgate the myth, ok? Since I'm just asking for clarification, I presume this doesn't fall into the rule about 'no embarrassing posts' about a substrata of our great society.

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    Regular Member stealthyeliminator's Avatar
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    Current failure to ID law and the amendment to HB910 aren't even on the same subject. One (in part) makes it an offense to refuse to provide identification information after being lawfully arrested, the other is a "prohibition" on peace officers making certain investigatory stops. It could hardly be said the two even overlap, there is no precedence because there is no conflict.
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    So, after arrest you must provide the data. Before arrest (detained), KYBMS. If after arrest the data given must be true. If after detainment, and you did not KYBMS, the data must be true.

    This seems to be a case where a cop would have to arrest you just to get your data. Thus, if the gat is the only possible crime, the cop will either make the arrest (unlawful?) and takes his chances, or keep on keeping on, and takes his chances.

    I foresee a great many possible claims of "misunderstandings of the law" in the future of TX cops.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member solus's Avatar
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    Quote Originally Posted by OC for ME View Post
    So, after arrest you must provide the data. Before arrest (detained), KYBMS. If after arrest the data given must be true. If after detainment, and you did not KYBMS, the data must be true.

    This seems to be a case where a cop would have to arrest you just to get your data. Thus, if the gat is the only possible crime, the cop will either make the arrest (unlawful?) and takes his chances, or keep on keeping on, and takes his chances.

    I foresee a great many possible claims of "misunderstandings of the law" in the future of TX cops.
    hear hear...

    Well Said OC4ME

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    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    The threshold for detaining you is reasonable suspicion (which is more than mere suspicion). The threshold for arrest is probable cause. If you were detained on a traffic or pedestrian or other violation than you can already be arrested, so I wouldn't push the issue........ In Texas the only two traffic offenses you cannot be arrested for are Speeding and Open Container..... If you were only detained on reasonable suspicion as an investigative encounter than you can refuse to identify.....

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    Quote Originally Posted by Count View Post
    The threshold for detaining you is reasonable suspicion (which is more than mere suspicion). The threshold for arrest is probable cause. If you were detained on a traffic or pedestrian or other violation than you can already be arrested, so I wouldn't push the issue........ In Texas the only two traffic offenses you cannot be arrested for are Speeding and Open Container..... If you were only detained on reasonable suspicion as an investigative encounter than you can refuse to identify.....
    Precisely.

    Edit to add: Technically even for speeding and open container, you're under arrest, and in any case (common traffic offenses) the officer has the option to release you on signing a promise to appear (ticket), but speeding and open container offenses are the only two for which the LEO is required to offer that option (release upon signed promise to appear).
    Last edited by stealthyeliminator; 05-06-2015 at 06:44 PM.
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    Regular Member OC for ME's Avatar
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    Ask the cop if you are under arrest. Get his response on tape. If yes, follow the law. If no, or vague/evasive, invoke your 5A. I could not find a definition of what a arrest is in TX statutes. I did not look that hard. I founf arrest with/without warrant and some other statutes referring to a citation and refusing to accept the citation.

    If you are pulled over while driving consider yourself arrested for all practical purposes and KYBMS, the cop should have your ID and verbal interaction is unnecessary.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    Ask the cop if you are under arrest. Get his response on tape. If yes, follow the law. If no, or vague/evasive, invoke your 5A. I could not find a definition of what a arrest is in TX statutes. I did not look that hard. I founf arrest with/without warrant and some other statutes referring to a citation and refusing to accept the citation.

    If you are pulled over while driving consider yourself arrested for all practical purposes and KYBMS, the cop should have your ID and verbal interaction is unnecessary.
    I agree. Surrender your legally required papers (DL, registration, insurance certificate) and KYBMS. Protect your privacy as you can; secure your vehicle and meet the cop off the highway and with the barrier of two vehicles from on coming traffic. Otherwise crack the window and slide your papieren through. Do not allow extra-legal searches - sniffs and peeks.

    I have just taken possession of a new to me vehicle and was able to vacuum up ~½ gram of trash. The standard of cleanliness that I was trained to is "No visible trash contamination with normal corrected vision magnified 10X with 50 foot-candles illumination." The PO and the CPO detailer were obviously meticulous.
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    Regular Member solus's Avatar
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    Quote Originally Posted by Nightmare View Post
    I agree. Surrender your legally required papers (DL, registration, insurance certificate) and KYBMS. Protect your privacy as you can; secure your vehicle and meet the cop off the highway and with the barrier of two vehicles from on coming traffic. Otherwise crack the window and slide your papieren through. Do not allow extra-legal searches - sniffs and peeks.

    I have just taken possession of a new to me vehicle and was able to vacuum up ~½ gram of trash. The standard of cleanliness that I was trained to is "No visible trash contamination with normal corrected vision magnified 10X with 50 foot-candles illumination." The PO and the CPO detailer were obviously meticulous.
    night, if the vehicle is from the same locale as yourself and you do not know the buyer personally. i recommend either diluted ammonia lightly squirted under dash, console, front and rear seats (ya lift up the rear seat cushion completely), rear deck area, etc., as the vehicle might be known to LEs and if by chance was involved in nefarious activities in the area and was sold for bail or bond money, could cause you unwanted attention from the nice LEs and even tho you vacuumed extensively, this would cause the 'dogs' to shy away.

    years ago, on one of my newly purchased used vehicles from the local area i found casings under the rear seat cushion as well as what i suspected was blood staining under the front seat...dealer GM apologized for not checking under the rear seat as he confessed as my deal of a lifetime was in fact a banger's vehicle from the local area...i kept the vehicle after the cash incentive to lower the price further was graciously accepted. guess it is good i am the skin tone i am as it was fun to watch the nice LE's marked and unmarked, slow down and drive by on the freeway staring at the olde white phart in this banger's vehicle...and when you wave, it just confuses them completely...

    enjoy your low rider sport!!

    ipse
    Last edited by solus; 05-09-2015 at 08:42 AM.
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Quote Originally Posted by OC for ME View Post
    If you are pulled over while driving consider yourself arrested for all practical purposes...
    That is the law in Texas. Statutory makes no distinction: a traffic stop is an arrest. At the end of the stop, the arrestee is either released without charges ("unarrested", if you will), taken into custody (allowed for all Class C traffic misdemeanors in Texas other than speeding or violation of the open container law), or charged and released on a personal recognizance bond (AKA, "Signing the ticket").

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    Show me a law or case law that states traffic stops are considered arrests!

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Count View Post
    Show me a law or case law that states traffic stops are considered arrests!
    http://www.legalupdateonline.com/4th/70

    http://www.statutes.legis.state.tx.u...htm/TN.543.htm
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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Count View Post
    Show me a law or case law that states traffic stops are considered arrests!
    MO has a similar statute.

    Arrest. - 544.180. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
    A traffic stop in MO is a arrest.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    If it is an arrest than incident to arrest the officer can search the person. The officer cannot search the person during a traffic stop. If he chooses to arrest instead of issue citation on the traffic offense than it is an arrest and the person can be searched. A traffic stop is a temporary detention..... Unless it becomes an arrest.......

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    The definition of arrest is argued in courts all the time...... What is arrest?

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