Do You Need to Carry Identification in California?

Drivers of motor vehicles are required to have driver's licenses (Cal Veh Code § 12951).

No license is required to walk about and, like pedestrians – bicyclists are not required to have driver's licenses. Cal Veh Code § 231 defines bicycles and includes electric bicycles; electric bicycles are further defined by Cal Veh Code § 312.5. Assuming you have met all the requirements, a license is not needed to operate an electric bicycle.

Although no license is required, bicyclists, for the most part, have all the same rights and responsibilities as motor vehicles (Cal Veh Code §§ 21200; 40302) – meaning bicyclists must obey traffic laws and can be ticketed for failing to obey traffic laws. Pedestrians can also be ticketed for things like jaywalking (Cal Veh Code § 21955).

Unless a license is required (for something like driving a car), you are not required to provide identification upon being lawfully stopped by a police officer.

Pedestrians and bicyclists who are reluctant to provide identification can be placed in a bit of pickle when stopped by the police – especially if the police officer is disinclined to disclose the reason for stopping you (i.e., should the officer decline to disclose the reasonable suspicion or probable cause for stopping you).

If the officer does NOT have reasonable suspicion or probable cause for stopping you, then you are fine and should not be arrested. In fact, if this is the situation, you should be able to continue on your way unobstructed. This why it can be helpful to ask the officer if you are free to go.  

If the officer has probable cause that you committed a crime, then – although declining to provide your identification is not a crime – the officer also has broad discretion to arrest you (not for failing to provide identification) for the most minor of crimes (such as an infraction). An infraction is, by definition, a crime. (Pen. Code, § 16.) People v. Fews (2018) 27 Cal. App. 5th 553, 563.

Even if arresting you for an infraction was a violation of state law, it would not be a violation of your federal constitutional rights. Thus, any evidence obtained as a result of that arrest should not be suppressed for this reason.

This puts you in the position of rolling the dice because unless you know the what the probable cause is for the stop you if you do not know if the officer has discretion to arrest you (not for failing to provide identification, but for the crime associated with the stop).

According to Cal Pen Code § 841, “The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody. ...”

[Note that because there is no sanction or remedy for enforcing this law – there is no remedy for a violation of this law if officer has probable cause other some other authority for stopping you or your vehicle (such as a drunk driving check point or border crossing)].

In People v McKay (2002) 27 Cal.4^th 601 – Richard McKay was stopped by a peace officer in California for riding his bicycle the wrong direction on a residential street (an infraction and fine only offense). McKay gave the office his name, date of birth and informed the officer that he did not have his identification. The officer then arrested McKay, searched him and found methamphetamine.

McKay's lawyer took issue with this by filing a motion to suppress evidence – but the court denied it and the California Supreme Court upheld the trial court's denial of the motion to suppress.

McKay unsuccessfully argued that his “custodial arrest for a fine-only offense, such as a traffic infraction, violates the Fourth Amendment prohibition on unreasonable seizures.”

He also unsuccessfully argued that “in the event the Fourth Amendment does not bar such arrests categorically, that his custodial arrest nonetheless violated the federal Constitution by the deputy's failure to comply with…the state statute that governs the arrest procedure for this infraction.”

The first argument failed in light of the U.S. Supreme Court recent decision in Atwater v Lago Vista (2001) 532 US 318 – which involved a case out of Texas where the driver was arrested for not wearing a seat belt (her 3-year-old son and 5-year-old daughter were also not wearing seatbelts and the maximum fine for the offense was no more than $50). The U.S. Supreme Court in Atwater said probable cause of a crime (even an infraction) was all that was needed to justify an arrest.

The U.S. Supreme Court said, “If a police officer has probable cause to believe that an individual has committed even a very minor criminal offense in the officer's presence, then the officer is authorized – but not required – by the Federal Constitution's Fourth Amendment to make a custodial arrest without balancing costs and benefits or determining whether the arrest is in some sense necessary.” Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323.

The second argument was interesting because McKay had identified himself by giving the officer his name and date of birth and argued that he could not be arrested for failing to give identification. The California Supreme Court said McKay was arrested for both the traffic violation and failing to provide satisfactory evidence of identification. The court said that although McKay was not required to have driver's license or other identification, the officer still had broad discretion to arrest McKay pursuant to Cal Veh Code § 40302(a) and to ensure compliance with a promise to appear.

Thus, although the lack of identification was not a violation of the law (and McKay had no obligation to carry identification), the officer had discretion to arrest McKay for the traffic violation and implemented that discretion in order to ensure that McKay complied with his promise to appear.

Thus, it is best to have identification and not need it, rather than not having identification and thereby giving an officer discretion to arrest you for a minor offense just because the officer want to make sure you are who you say and that you comply with your promise to appear.

Note:

1. Although there are alternatives to identification (see Cal Civ Code § 1185), there is also no sanction for an office ignoring that law, so officers are not required to accept alternatives form of identification.

2. According to Cal Veh Code § 12951, a licensee must possess and produce (upon demand of a peace officer enforcing the provisions of the vehicle code) a valid license issued to that person at all times while driving a motor vehicle.

3. Pursuant to Cal Veh Code § 4462(a), the driver of motor vehicle must present the registration or identification card or other evidence of registration of any vehicle or vehicles under the person's immediate control for examination upon demand of any peace officer. Vehicle must also have license plate(s) pursuant to Cal Veh Code § 5200(a).

4. Cal Veh Code § 16028 makes it illegal to drive without evidence of your insurance or another form of financial responsibility. Under the law, you must have proof of that insurance in the car at all times and the officer is required to request it. You may provide proof via mobile electronic device. The peace officer shall not stop a vehicle for the sole purpose of determining whether the vehicle is being driven in violation of this subdivision.

5. Cal Veh Code § 16000(a), requires the driver of every motor vehicle who is in any manner involved in an accident originating from the operation of a motor vehicle on any street or highway or any reportable off-highway accident defined in Veh. Code, § 16000.1, involving property damage over $ 500, death or personal injury in any amount, to report the accident as specified in the statute. Garcia v. Superior Court (2006) 137 Cal. App. 4th 342, 344. It shall be reported within 10 days of the accident. Veh. Code, § 16000(a). Veh C § 16000.1(b) excludes from the financial responsibility laws any accident, which occurs off-highway in which damage occurs only to the property of the driver or owner of the motor vehicle and no bodily injury or death of a person occurs. Campbell v. Zolin (1995) 1995 Cal. App. LEXIS 279.

6. Section 834a provides, "If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest." (Italics added.) A standard jury instruction on arrest by a peace officer incorporates both the "must inform" requirement of section 841 and the knowledge requirement of section 834a. The instruction provides in relevant part: "The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody. . . .  . . .  If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force." (CALCRIM No. 2670, italics added.) People v. Youmtoub, 2011 Cal. App. Unpub. LEXIS 7541, *19-20.