(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.
Penal Code 148.9 is a misdemeanor in California. It is punishable by up to 6 months in jail and/or a $1000 fine. In order for the prosecutor to find someone guilty of this section they must show that the defendant:
(1) Falsely represented themselves as another person or fictitious person;
(2) To someone they knew or should have known was a peace officer;
(3) While the peace officer was engaged in the performance of lawful duties;
(4) To evade:
- The process of the court; or
- The proper identification of the person.
Let's look at these elements:
(1) Falsely represented themselves as another person or fictitious person – this does not merely have to be providing a fake name, it can include providing a fake date of birth as well. (In re Ivan J. (App. 2 Dist. 2001) 105 Cal.Rptr.2d 382
- This also shows the difference between Penal Code 529, the False Impersonation Law, in that that law makes it a crime to use someone else's identity, but Penal Code 148.9 makes it a crime to use a fictitious person's identity as well.
(2) To someone they knew or should have known was a peace officer – this is judged but what a reasonable person would know. It is determined on a case-by-case basis.
(3) While the peace officer was engaged in the performance of lawful duties – if the giving of false identification occurs after an unlawful arrest or detention, then the defendant is not guilty of Penal Code 148.9.
- One court ruled that the giving of false identification was legal during a consensual encounter. Such as when the police merely come up to citizens to initiate a conversation. (In re Voeurn O. (App 4 Dist. 1995) 41 Cal.Rptr.2d 549)
(4) Evading the process of the court or the identification of the person– the act itself of providing the information is enough, there is no need for any additional act. People v. Cole (App. 5 Dist. 1994) 28 Cal.Rptr.2d 788
- The intent to defraud is not necessary, just knowingly giving false information is enough. (Blanco v. Mukasey, C.A.9 (Cal.)2008, 518 F.3d 714
After a review of the statute, it becomes apparent that some of the ways to defend these cases is to show that the false identification information was either:
(1) Given by mistake;
(2) The product of an unlawful detention , arrest or consensual encounter; or
(3) Lack of knowledge that the peace officer was actually a peace officer.
All of these defenses will be case specific. Every case has unique facts and which defense to use will be based on the facts of each case.