What Is the Punishment & Defenses to Having a Fake ID?
In a Nutshell: Having a fake I.D. (Penal Code § 470(d) (forgery)), can be charged as a felony or as a misdemeanor. As a misdemeanor, this means a maximum punishment of one year in county jail and / or a $1,000 fine, although probation is commonly given as punishment to resolve a first-time case. As a felony, the minimum punishment is sixteen months in state prison; maximum is three years, before any sentencing enhancements apply.
To the surprise of most people unfamiliar with the law, the possession or display of such identification that is not one’s own with the attempted use of such a fake ID is considered a forgery.
A fake ID means any driver’s license of other government-issued identification that has been duplicated, altered, falsified, forged, reproduced, or counterfeited. Counterfeited in this context means reproducing an official seal or stamp that is on the driver’s license or ID.
Attempting to use the driver’s license or government ID at issue means to display it in an attempt to commit fraud, which broadly means deceiving another person in order to cause loss or damage of a legal, financial or property right.
The most common use of such a fake ID, we see, is by someone under 21 having an ID of themselves but showing a birth date that is false, or of someone else who is not that person, but who is over 21, that our client has to use to buy alcohol. It can also be an illegal immigrant who uses the ID of someone else to avoid problems with the police or someone on formal probation who wants to use another person’s ID, often a sibling, to avoid a search of a car under formal probation conditions. Of course, it can also be someone using a fake ID to cash checks that are not one’s own or someone who has a fake ID as part of a more complex identity theft operation.
If the case is brought as a misdemeanor, the maximum punishment is one year in county jail and /or a fine of $1,000 (plus penalties and assessments that can make the total owed close to $4,500). Defendant may also owe investigation costs. What we find most common, however, is that, especially in a first-time offense, summary or informal probation is granted and the client must perform a nominal amount of community service, i.e. 80 or 40 hours, and pay investigation costs, which can be a few hundred dollars.
If the case is brought as a felony, on the other hand, defendant faces a minimum of sixteen months in state prison (to be served in county jail) to a maximum of three years (also to be served in county jail), plus enhancements for prior strikes, prison priors or gang enhancements, as applicable. The monetary fine can be up to $10,000, which with penalties and assessments can be close to $45,000. Most commonly, what we see in felony forgery cases is five years of formal probation, perhaps with a small amount of jail time (90 days or less), significant community service, payment of restitution and payment of investigation costs.
The defenses to such a charge are few and far between, but there are some. Most commonly, there is the defense of lack of knowledge that the item was fake or lack of intent to use the ID for any illegal purpose. Both of these can be hard defenses to make credibly.
Often, what our office is doing in these types of cases, is damage control. When the matter involves possession of a fake driver’s license, our focus is usually to try to persuade the prosecutor to amend the complaint to allege instead a violation of Vehicle Code § 13004 or 14610, both which are misdemeanors and only have a maximum punishment of six months in county jail. More importantly, the stigma of being convicted for forgery is removed when one pleads to a Vehicle Code violation instead.
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