Failure to Identify to a Police Officer: Laws & Penalties


Law enforcement officers routinely ask people for their names and other identifying information. Police may ask for the information as part of a specific criminal investigation. At other times, they may need the information to protect themselves, allowing them to determine whether the person they are speaking with has a violent criminal history. Many states have made it illegal to refuse to provide certain identifying information to a law enforcement officer when the officer has properly requested it.

Is It a Crime to Refuse to Identify Oneself to a Law Enforcement Officer?

States (colored in red) in which Stop and Identify statutes are in effect as of February 20, 2013.
States (colored in red) in which Stop and Identify statutes are in effect as of February 20, 2013.

Some states do not have stop-and-identify statutes. Related statutes in these states vary, and some require a person to respond to the officer’s request for identification, and some do not. However, if a person does voluntarily elect to answer, providing false information is usually a crime.

In states that have stop-and-identify laws, the prosecutor has to prove two things in order to get a conviction: 1.Did the law enforcement officer lawfully stopped the defendant? 2.Did the defendant refused to identify him or herself?

Texas Failure to Identify Law, What it Says vs. What Police Think It Says.

The Texas Failure to Identify law is fairly simple so why don’t police get it? Police officers in Texas have an idea that they have the right to identify anyone at anytime for any or no reason. The courts have repeatedly slapped them down on this. Yet we still see police officers demand identification in Texas and threaten arrest (or actually make arrest) on Failure to Identify when in fact, no offense has occurred.

SDF Recommendation to Texas Members.

There are numerous examples on YouTube of Texas Law Enforcement Officers “LEO” who do not know or care what the Texas Penal Code Section 38.02 says about Failure to Identify.

It has been our experience that those of you that are “Constitutionalists” and quote law to a LEO are going to jail. Why? Because law enforcement officers have the power to arrest you under a wide variety of charges just because you made him/her angry. There is a tried and true police saying: “You can beat the rap but you can’t beat the ride.”

The best advice the SDF can give to its members is first be polite and respectful to a LEO. If you are walking, standing, or riding a bicycle and you are asked for ID then give the LEO your membership ID card.

That is why your name and address is on the card. If you have a LTC and open carry and asked for your ID then give the LEO your LTC and membership ID card. If you are driving a motor vehicle and you are asked for your drivers license then do so along with your LTC, if applicable, and your membership ID card. This action lets the LEO know up front that you are represented by an attorney and have been advised to give only your name and address.

What happens next depends on the LEO. We can not stress the importance of keeping silent. Even thought we teach, preach, and stress this fact many want to talk, argue with the police, or quote law which is the absolute worst thing you can do. Say only “I want to talk to my attorney.”

Question: When did Texas licensed open carry go into effect?

Answer: January 1, 2016

Question: Will I be required additional training or to get a new license, one that doesn’t say “concealed”?

Answer: No, no additional training is required and after January 1st a renewed license will be for a handgun license. You now have a License To Carry.

Question: Will reciprocity with other states change?

Answer: No, Texans must follow other state’s laws, some of which allow open carry and some do not. Licensees traveling to Texas from states enjoying full reciprocity with Texas must follow our laws, as always.

Question: Am I required to have a certain type of holster for my handgun if it’s all or partially exposed?

Answer: Yes, statute requires a belt or shoulder holster for your handgun to be exposed, including in your vehicle. If you’re in your vehicle and your handgun is exposed it must be in a belt or shoulder holster or stored out of sight. There is no requirement for a retention holster, that’s at your discretion.

Question: Can I be prevented access from any location while carrying an exposed handgun?

Answer: Yes, in order for private property owners, not listed as prohibited in current law, to prohibit access by a licensee with an exposed or partially exposed handgun, the location must post PC 30.07 sign. This simply means concealed is okay and but …
…exposed is not. You could also be asked to leave. Walking past a PC 30.07 sign is a class C misdemeanor but refusing to leave when you’ve been asked to do so is a class A and could cause the loss of your license. If you are asked to leave, do so immediately.

Note: If a business wants to prohibit all licensees, they must post both PC 30.06 and PC 30.07. Also, NO exposed handguns are allowed on the grounds or any portion of a college campus, only those that are concealed.

When Can a Law Enforcement Officer Stop Someone?

Before a police officer can properly stop a person and ask for identification, the officer must have a reasonable, articulable suspicion that a crime has occurred or is about to occur. This means the officer must be able to state facts and circumstances that would lead a reasonable person to believe that a crime occurred or will soon. For example, if an officer observes a car driving lawfully in the early morning hours, those facts alone are not sufficient to indicate that a crime occurred, and the officer could not properly stop the vehicle. On the other hand, if the officer had information that a car of the same color, make and model, and with the same number of occupants, just left the scene of a near-by crime, the officer would have specific facts suggesting that a crime occurred involving the occupants of the car and could lawfully stop the vehicle.

When Can a Law Enforcement Officer Request Information?

As long as a law enforcement officer’s detention (stop) of a person is legal, the officer is always free to ask questions. As discussed above, in some states the person stopped must provide identification, while in other states the person stopped is not required to respond. In Texas you do not have to ID but failure to do so is guaranteed an arrest.

How Much Information Must the Person Stopped Provide to the Law Enforcement Officer?

While the answer varies by state, all states with stop-and-identify statutes require that the person stopped provide at least a name. Some states also require the person stopped to provide an address. Other states simply require that the person stopped not provide false information. In these states, the person stopped is not required to answer the law enforcement officer.

What is my Defense?

There is a number of defenses that are commonly used by those charged with failure to identify to a police officer. You will need an attorney because you will not win on the street.

What if the law enforcement officer improperly stopped the defendant?

As previously discussed, a law enforcement officer must have reasonable, articulable suspicion that a crime has occurred or is about to occur. If the law enforcement officer stops the defendant without a reasonable belief that a crime has occurred, the prosecutor cannot use the defendant’s refusal to answer as evidence of failure to identify to a police officer.

Why is the law so unconstitutionally vague?

Some prosecutions for failure to identify to a police officer are based on vagrancy laws. Such laws attempt to address issues such as loitering, panhandling, and public drunkenness by homeless or other persons who have no visible means of support. In a number of cases, vagrancy laws have been struck down by the courts for unconstitutional vagueness. This means that the law does not adequately describe the activity that has been made criminal.

An answer may violate the defendant’s Fifth Amendment rights.

The Fifth Amendment to the United States Constitution provides that a person cannot be compelled to provide self-incriminating testimony. In many instances, providing identification to a police officer would not be self- incriminating. However, in other situations disclosing one’s name might alert the officer to outstanding warrants or criminal charges. The United States Supreme Court has not ruled on whether providing one’s name in response to police questioning on the street constitutes “testimony,” thereby bringing the exchange within the protection of the Fifth Amendment. State courts have ruled inconsistently. So whether this defense would apply in a particular state depends on how that state’s courts have ruled on the issue.

What are the Penalties?

Failure to identify to a police officer is usually a misdemeanor offense. Someone convicted of this crime can be subjected to any or all of the following penalties:

Incarceration. For misdemeanors, sentences may involve 12 months or less in the county jail, depending on the state. The judge may require that the entire sentence be served in jail.

Fines. Courts impose fines to penalize defendants. These fines vary greatly, and can be as much as $2,000.

Probation. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling.

Community service. Courts often include as a part of probation the requirement that the defendant volunteer for a specified number of hours with court-approved organizations, such as charities.

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