The offense prohibits one to falsely represent a fake or fictitious identity to a police officer either to evade the process of the court, or to evade the proper identification of the person under penal code 148.9.1
To prove that the defendant is guilty of this offense, the prosecutor has to prove the following facts or elements2:
- Providing a fake or fictitious name or the name of another person3
- To avoid the court process or to avoid presenting proper identification to that officer
- To someone the defendant knows or should have known is a police/peace officer
- While the police/peace officer was engaged in the performance of lawful duties4.
James is pulled over because the police officer suspected that he was driving under influence. When the officer asked James for his name, James gave him a name that he made up on the spot. James can be charged with the offense because he made up a fake name to avoid presenting accurate identification to the police officer.
This offense is a misdemeanor and in some instances, the judge may grant several months of probation to reduce jail time or just grant probation with no jail time at all.
|Fine||Up to $1,000 + Penalty Assessments|
|County Jail||Up to 6 months|
Any person who represents a fake or fictitious identity to a police officer either to evade the process of the court, or to evade the proper identification of the person, as long as he/she knew or should have known that he/she was representing the false information to a police/peace officer can be prosecuted under penal code 148.9.
Larry is pulled over for no reason at all and the officer started pressuring Larry into admitting that he has something in his possession that could implicate him in some crime. After interrogating Larry for ½ an hour without any cause to continue to do so, Larry finally revealed to the officer that he has a knife that he keeps in the body of his car under the front seat rug and that it’s of the type that is probably illegal to possess in the car. When the police officer tried to book Larry and asked for his name, Larry made up a fake name. In this instance, Larry’s attorney could challenge the evidence gathered at the stop with a motion to suppress for a lack of probable cause. The officer unlawfully stopped, detained, and interrogated Larry without reading him his Miranda rights.
If the defendant can show that the police officer was not lawfully performing his/her duties at the time of the false representation of identity, the defendant will not charged with the offense. As discussed above, a police officer is not lawfully performing his/her duty if he/she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his/her duties.
Because one of the elements is that the defendant has to know or should have known that he/she is making a false representation of identity to a police/peace officer, if the defendant can show that he did not know and should not have known that he/she was dealing with a police/peace officer, he/she will not be charged with the offense.
If the defendant is encountered by someone wearing plain clothes and driving an unmarked car, without being presented additional information, the defendant is not expected to know that the person is a police/peace officer.
The following links have information on the criminal court process in a misdemeanor:
We have significant experience defending clients charged under california penal code 148.9 and in consultation with our clients we come up with the most effective defense strategy for your case.
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- Penal Code 148.9. (a) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of
Section 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor. (b) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any other peace officer defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, upon lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the arresting officer is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer. [↩]
- Elements. Pen. Code, § 148.9. [↩]
- Providing a fake or fictitious identity includes not just providing a fake or fictitious name, but also providing a fake date of birth or any other information that can be used to identify a person’s identity. Penal Code 148.9. [↩]
- A police/peace officer is not lawfully performing his/her duties if he/she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his/her duties. For example, a peace officer is not lawfully performing his/her duties when an arrest or detention is unlawful and/or when force is unreasonable or excessive. If a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section.” People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541]. An unlawful arrest includes both an arrest made without legal grounds and an arrest made with excessive force. Id. at p. 167. “[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element.” People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159]. The court has a sua sponte duty to instruct that the defendant is not guilty of the offense charged if the arrest was unlawful. People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663]. On request, the court must instruct that the prosecution has the burden of proving the lawfulness of an arrest beyond a reasonable doubt. People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651]. [↩]