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

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.