False Report to Police Officer

[Waldo P. Emerson-Jones]

Two questions (and a few sub questions) regarding Texas Penal Code section 37.08 False Report to Peace Officer:

1. Is it a violation of 37.08 to lie to a cop who pulls you over and asks you an incriminating question? For example, suppose a cop pulls you over for some minor traffic violation and while he has you stopped asks you whether you have had anything to drink tonight. You lie and tell him "no" even though you've had just a couple beers. You don't think you're DWI but don't want to give the cop any more reason for testing or arresting you than he may already have. You also don't want to refuse to answer because that will likely get you arrested for dwi. In reading the statute, the part I'm unclear on is whether the cop pulling you over for speeding who then asks you if you've had anything to drink is "conducting a criminal investigation." Does it matter whether or not the question is related to the reason the cop initially pulled you over (speeding for example) or whether the cop has probable cause to believe you're dwi at the time he asks the question?

2. Assuming the answer to the question above is "yes," how likely is it, as a practical matter, that you'll ever be charged with violating 37.08? I imagine people lie to the cops all the time about whether or not they're guilty of violating some law. My impression, however, is that they're almost never charged with violating 37.08 in addition to the underlying crime; at least it doesn't seem to come up in news stories. Also, does it make any difference if you are or are not charged with some crime? For example, in my scenario above, suppose you are charged with dwi, the cops investigate and find that you purchased two beers at the restaurant you just left, and district attorney decides there's not enough evidence to convict you of dwi. Any chance they'd still proceed with a case under 37.08 because now they've got good evidence you lied to the cop even though they can't convict you of the crime you were initially suspected of violating.

Here's the text of 37.08 for those who are curious:

Sec. 37.08. FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT EMPLOYEE.

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1) a peace officer or federal special investigator conducting the investigation; or

(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

(c) An offense under this section is a Class B misdemeanor.

[georgehentson]

Lie. Cops will lie to you left and right and not blink an eye. If you say, "Yes, I had one drink" the cop, thinking you're lying and you had way more than one, will use that as a reason to search your car and trunk.

Speaking of which, the cop is NOT your friend. If a cop ever asks, "May I take a look in your car/trunk/bag etc" say, "I do not give permission for a search" because there's nothing that says you must give permission. The cop can decide he has probable cause, but if he asks may I, say NO.

[tia travels]

Originally Posted by georgehentson

...If a cop ever asks, "May I take a look in your car/trunk/bag etc" say, "I do not give permission for a search" ...

I would just reply, "no" or "I don't".
Don't separate "do" and "not" as in "I do not".
I say this because a friend from long ago, had his comments that were on tape, ALTERED to say what the cops wanted it to say. He had a professional testify that the tape was altered. It was a big mess...and tough fight.

If you say "I do not", they can possibly eliminate the word "NOT" and leave the result as, "I do". It's hard to divide a contraction as in "don't".

If you say, "I do not allow", they could possibly eliminate "not" and the sentence remaining is: "I do allow".

It's probably very RARE that this would/could happen to you, but..it "could" happen. Depending on the crime you're charged with and how bad they want you, cops "can" play dirty too.

[Guest062716]

Originally Posted by tia travels

I would just reply, "no" or "I don't".
Don't separate "do" and "not" as in "I do not".
I say this because a friend from long ago, had his comments that were on tape, ALTERED to say what the cops wanted it to say. He had a professional testify that the tape was altered. It was a big mess...and tough fight.

If you say "I do not", they can possibly eliminate the word "NOT" and leave the result as, "I do". It's hard to divide a contraction as in "don't".

If you say, "I do not allow", they could possibly eliminate "not" and the sentence remaining is: "I do allow".

It's probably very RARE that this would/could happen to you, but..it "could" happen. Depending on the crime you're charged with and how bad they want you, cops "can" play dirty too.

Sad but interesting. Ugh.

My lawyer told me to never lie to the cops.

He also told me to never volunteer any info to the cops.

May the cops lie to you? Yes.

Can they ask you an incriminating question? Yes

I love the Ronald Regan answer. "The simple truth is, I don't remember."

They cannot prove that you lie if you tell them you don't remember or that you don't recall.

Another method is refuse to answer.

Yet another method is an attempt to divert. "Did I have a drink? May I ask what actions I took that led to you stopping me?"

Hobby safe.

Respectfully,

OldSarge

[babarumraisin]

You can always stand on your Fifth Amendment right against self incrimination.

[CS123]

There is a sticky in this forum right above this thread that addresses what to do if you are stopped by a cop. It has lots of good info and links. One tidbit of information in there is don't lie to the cop. You should read it perhaps it will give you the answer(s) you are looking for.

[Waldo P. Emerson-Jones]

Originally Posted by OldSarge

Sad but interesting. Ugh.

My lawyer told me to never lie to the cops.

He also told me to never volunteer any info to the cops.

May the cops lie to you? Yes.

Can they ask you an incriminating question? Yes

I love the Ronald Regan answer. "The simple truth is, I don't remember."

They cannot prove that you lie if you tell them you don't remember or that you don't recall.

Another method is refuse to answer.

Yet another method is an attempt to divert. "Did I have a drink? May I ask what actions I took that led to you stopping me?"

Hobby safe.

Respectfully,

OldSarge

I appreciate the response, but I am skeptical that any of the suggestions would be effective. "I don't remember" is (1) a lie and (2) hardly a believable response. Cop is likely to suspect you of drinking and ask you to do a field sobriety test and/or breathalyzer, which leads to your refusal (at least that's the advice I've always read if you had even one drink within the last few hours), which leads to your arrest and loss of license. Refusing to answer has the merit of avoiding any problems under 37.08 but also seems likely to result in officer suspecting you of being intoxicated, which again leads to officer asking you to do a field sobriety test and/or breathalyzer, which leads to your refusal, which leads to your arrest and loss of license. Misdirection is pretty transparent and again just likely to lead to cop suspecting you of intoxication. I suppose they all beat truthfully saying "yes, I've only had two beers" (officers joke that every drunk gives this response) but I'm thinking just saying "no" is your best chance to avoid a demand that you do field sobriety test and/or breathalyzer. But, worry that this may open you up to additional criminal penalties; hence the questions.

[Waldo P. Emerson-Jones]

Originally Posted by CS123

There is a sticky in this forum right above this thread that addresses what to do if you are stopped by a cop. It has lots of good info and links. One tidbit of information in there is don't lie to the cop. You should read it perhaps it will give you the answer(s) you are looking for.

Thanks. I did read it, and no, it doesn't answer either of my questions.

[Waldo P. Emerson-Jones]

Originally Posted by babarumraisin

You can always stand on your Fifth Amendment right against self incrimination.

As a practical matter, don't you think the officer will then suspect that you are intoxicated and ask you to do field sobriety tests and/or take a breathalyzer? If you refuse, then you're getting arrested and going to jail. I'd prefer to avoid that if possible.

[Guest062114-5]

Usually the above mentioned statute is used when someone makes a false report against someone else, not in relation to the underlying facts of their own case.

So, if your wife files a police report saying you beat her, but you have a videotape proving she is lying, she will likely face prosecution under the statute.

I suppose that could use it in your DWI hypothetical, but I don't recall every seeing that actually done.

[Waldo P. Emerson-Jones]

Originally Posted by LilMynx69

Usually the above mentioned statute is used when someone makes a false report against someone else, not in relation to the underlying facts of their own case.

So, if your wife files a police report saying you beat her, but you have a videotape proving she is lying, she will likely face prosecution under the statute.

I suppose that could use it in your DWI hypothetical, but I don't recall every seeing that actually done.

Thanks for response. That's exactly my impression as well--it probably is against the law to lie to the cop asking if you've had anything to drink this evening, but it's probably unlikely (almost never?) that you'd be charged with it in the hypothetical given. If that's the answer, then I think the risk-reward analysis argues for just saying "no" if you've just had a couple of beers. You lessen your chances of getting arrested without increasing your likely punishment. But, would love to hear the perspective of someone with experience in the criminal justice system.

[Guest062114-5]

I have experience, not in TX, but in Louisiana. But, I'm privy to the facts of a lot of cases in Texas. In general, if a cop pulls you over and you smell like alcohol, you're going to jail. Unless you can do a breathalyzer and prove you're below .08. If you don't smell like booze and you really have had only a drink or two, and lie and say you haven't been drinking, there's a good chance you'll get away with it. It depends greatly on why you were pulled over though and some other circumstances.

I got pulled over at about 2am one night for some bs reason. But when the cop saw I was in my pajamas and had a Walgreens Rx bag with me, he apologized and let me go. So, the lesson learned is wear your pajamas to avoid DWIs.

[RedLeg505]

Originally Posted by LilMynx69

So, the lesson learned is wear your pajamas to avoid DWIs.

I don't think the cop would have reacted the same way to me in a sheer pink babydoll outfit as he must have to you

[Guest062114-5]

Originally Posted by RedLeg505

I don't think the cop would have reacted the same way to me in a sheer pink babydoll outfit as he must have to you

Well. He did ask me out. But I wasn't dressed in anything cute at all.

[SpiceItUp]

Originally Posted by LilMynx69

Well. He did ask me out. But I wasn't dressed in anything cute at all.

I'm thinking you in PJs is probably pretty damned cute