What to Do When a Defendant Is Charged under the Wrong Name

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Sometimes, a defendant is charged under the wrong name. This usually happens when the defendant gives a false name upon arrest. When this is discovered, what should be done?

There are two options. First, the state can dismiss the case, re-charge the defendant under the correct name, and encourage the person whose name was used by the defendant — often an unwitting friend or relative — to seek an expunction under G.S. 15A-147, the identity theft expunction provision. (There’s even a form: AOC-CR-263.)

Second, the state can move to amend the charging document to reflect the defendant’s true name. This probably doesn’t run afoul of the legal limitations on amendments. Although a wholesale change to, say, a victim’s name is often impermissible, a change to the defendant’s name doesn’t create the same type of notice concern. (After all, the defendant already knows he was arrested and charged.) See generally State v. Grigsby, 134 N.C. App. 315 (1999), rev’d in part on other grounds, 351 N.C. 454 (2000); State v. Sisk, 123 N.C. App. 361 (1996). The Administrative Office of the Courts takes the position that amending the defendant’s name is an appropriate way of addressing this situation.

Remember that in DWI cases, there’s normally a civil revocation proceeding associated with the criminal case, and it needs attention under either of the above scenarios. If the criminal case is dismissed and re-filed, the same should probably be done with the civil revocation proceeding. If the criminal pleading is amended, the same should probably be done with the civil revocation case. Changing the name on the civil revocation case may require a judicial order. G.S. 20-16.5(m). And a little personal attention to make sure that the name change is reflected in the clerk’s computer and in DMV’s records wouldn’t hurt either.

There are other questions about these cases, like whether the defendant who uses a false name can be charged with identity theft, or resist/delay/obstruct, or obstruction of justice, and what the ethical responsibility of a defense lawyer is if she learns that her client has been charged under a false name. I’ll leave those for another day.

7 comments on “What to Do When a Defendant Is Charged under the Wrong Name

  1. Hello there, I am Prakash from India. I prefer the second option. Thanks for sharing though.

  2. Question regarding sentenced under wrong name. I know someone who was sentenced under the wrong name in a Federal court. The judge asked if he was the person (wrong name) and he told the judge No. The judge asked the prosecutor about it and he said he didn’t know so the judge went forward and sentenced the person to prison under the wrong name. It is all on court transcripts. Can anything be done about this?

    Thank youi

  3. Question regarding sentence under wrong name ,
    I am a victim of a relative of mine whom went to a correctional centre under my name …
    We are in the twentieth century under laws with finger prints and so on , how can anyone go in to a correctional centre under another name if their already on the justice system and so are their finger prints ? What right do I have in any of this situation ? Pls reply

  4. Plaintiff identifies defendent in a name that is not real or legal. Valid civil court claim or not?,

  5. I was convicted in florida in 1989 under an alais. even though the judge knew my true name she refused to sentence me as such. this has caused much mental anguish. Is there any legal recourse?

  6. I have been charged under my maden name witch i have not used in about 25cyears i am married and the police clearly took my bank card from my purse witch says mrs and my married name but did all my paperwork in my maden name i signed for all my paperwork in my matted name i did not relize till i left the police station that thay put my maden name on my paperwork whotvare my options please

    • I had the same thing happen, just a few weeks ago… I am curious to know if you ever figured out whether or not this was an exceptable action for the situation, and or if this would be some kind of loop hole that can help in supporting a request to wipe all “pending court decisions/further actions” due to their mistake of name use??

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