Legal Question in Criminal Law in Texas
Can a Failure to ID charge be dismissed if I was not lawfully arrested at the time? (Texas)
An officer started to write me a ticket (Class C Theft) but I chose to remain silent when asked my name. At this point, I was not under arrest since he was just writing me a ticket for a Class C misdemeanor (no jail, only fine). Because of my silence, he charged me with Failure to ID and then arrested me AFTER I refused to give him my info. Under Sec. 38.02, it states, "A person commits an offense if...peace officer who has lawfully arrested the person..." Again, I was not lawfully arrested at the time he was writing me a ticket. Can this Failure to ID charge be dismissed?
1 Answer from Attorneys
Interesting argument. Problem is that the officer has the duty to investigate and gather information in the first place. You are detained for investigation of theft. In conducting his investigation, you "failed to give your information." My guess is that the officer will say that he was going to arrest you, not ticket you. (They do lie for time to time, ya know?)
Even if he tells the truth, then it will revert back to basic law which is that the officer has the right to arrest you for almost any offense, and certainly for theft. He does not have to give you a ticket, and he can change his mind at any point until you were released or booked in. In refusing to give him the information to be put into a citation (I'm looking at my most recent gift of the pink slip), then the thing would essentially be blank and unenforceable should the unnamed person fail to appear in court because the would not have a name, address, etc....
Hire a lawyer & you will probably be able to get one of the cases dismissed (probably the one resulting from you being rather impetus - the failure to I.D.), and possible get a deferred prosecution for the theft.
I would strongly suggest that you not represent yourself as the allegations you have written here are likely to aggravate both the prosecutor and the judge (because of the waste of resources as a result of your arrest which occurred because you would not provide information - including signing the promise to appear in lieu of arrest.)
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