concurring in part; dissenting in part.
I concur with the result, but not particularly with the reasoning, in denying defendant’s motion to suppress. I dissent in respect to denial of the motion for acquittal.
Officer Shroder asked defendant to get out of the car. Without informing defendant that he intended to issue a citation, Shroder asked for his name and identification. Defendant gave Shroder a false name. It is unclear from the Uniform Traffic Citation and Complaint issued in this case whether defendant is charged with violating ORS 162.385 (giving false information to a police officer for a citation), ORS 807.620 (giving false information to a police officer who is enforcing the vehicle laws) or both. It is also unclear from the judgment what statute defendant was convicted for violating. At trial, the prosecution appeared to be trying him under ORS 870.620; defendant seemed to be defending a charge under ORS 162.385. At the end of the argument on defendant’s motion for judgment of acquittal, the judge stated that he found defendant guilty of providing false information to a police officer for a citation. That is the only offense that concerns us on appeal.
The state argues that ORS 162.385 does not require particularized knowledge by a defendant that an officer is inquiring about his name for the purpose of issuing a citation in order to be guilty of that statute. That is wrong. State v. Johnson, 94 Or App 453, 765 P2d 1249 (1988). Defendant testified that the officer never informed him that he needed his identification for completing a citation. The officer also testified that he never advised defendant that he needed his identification for the purpose of issuing an open container citation. There was no evidence of defendant’s having an intent to give the officer a false name “for a citation,” and the court erred in denying defendant’s motion for a judgment of acquittal. State v. Johnson, supra.
Warren and De Muniz, JJ., join in this opinion.