Identity Theft in Colorado

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Statute for 18 – 5 – 902 – Identity Theft

StatuteHere is the charge you are facing:

18-5-902. Identity theft

(1) A person commits identity theft if he or she:

(a) Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;

(b) Knowingly possesses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority, with the intent to use or to aid or permit some other person to use such information or device to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;

(c) With the intent to defraud, falsely makes, completes, alters, or utters a written instrument or financial device containing any personal identifying information or financial identifying information of another;

(d) Knowingly possesses the personal identifying information or financial identifying information of another without permission or lawful authority to use in applying for or completing an application for a financial device or other extension of credit;

(e) Knowingly uses or possesses the personal identifying information of another without permission or lawful authority with the intent to obtain a government-issued document; or

(f) (Deleted by amendment, L. 2009, (SB 09-093), ch. 326, p. 1737, § 1, effective July 1, 2009.)

(2) Identity theft is a class 4 felony.

(3) The court shall be required to sentence the defendant to the department of corrections for a term of at least the minimum of the presumptive range and may sentence the defendant to a maximum of twice the presumptive range if:

(a) The defendant is convicted of identity theft or of attempt, conspiracy, or solicitation to commit identity theft; and

(b) The defendant has a prior conviction for a violation of this part 9 or a prior conviction for an offense committed in any other state, the United States, or any other territory subject to the jurisdiction of the United States that would constitute a violation of this part 9 if committed in this state, or for attempt, conspiracy, or solicitation to commit a violation of this part 9 or for attempt, conspiracy, or solicitation to commit an offense in another jurisdiction that would constitute a violation of this part 9 if committed in this state.

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Identity Theft

Penalties

The charge of Identity Theft, is categorized as a:

F4

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a Colorado Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Colorado Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Identity Theft below. These will be adapted by your Colorado Attorney for your case.

The elements of the crime of Identity Theft are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. [knowingly used the [personal identifying information] [financial identifying information] [financial device] of another without permission or lawful authority to obtain cash, credit, property, services, or any other thing of value or to make a financial payment or attempted, conspired with another or solicited another to commit any of the acts set forth in these paragraph;] -or[ knowingly possessed the [personal identifying information] [financial indentifying information] [financial device] of another without permission or lawful authority, with the intent to use or to aid or permit some other person to use such information or device to obtain cash, credit, property, services, or any other thing of value or to make a financial payment or solicited another to commit any of the acts set forth in these paragraphs,] -or- [with the intent to defraud, falsely made, completed, altered, or uttered a written instrument or financial device containing any personal identifying information or financial identifying information of another or solicited another to commit any of the acts set forth in these paragraphs;] -or- [knowingly possessed the [personal identifying information] [financial identifying information] of another without permission or lawful authority to use in applying for or completing an application for a financial device or other extension of credit or solicited another to commit any of the acts set forth in these paragraphs;] -or- [knowingly used or possessed the personal identifying information of another without permission or lawful authority with the intent to obtain a governmentissued document or solicited another to commit any of the acts set forth in these paragraphs.] 4. [without the affirmative defense in instruction number ____.] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of identity theft. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of identity theft. NOTES ON USE This statute applies to offenses committed on or after July 1, 2006. Delete inapplicable bracketed material. When this instruction is given the mental states of ?knowingly? and ?with intent? should be given where applicable. The following definitions should be given where applicable: 1. ?Account holder? means any person or business entity named on or associated with the account or named on the face of a financial device to whom or for whose benefit the financial devise is issued by an issuer. 2. ?Extension of credit? means any loan or agreement, express or implied, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred. 3. To ?falsely alter? a written instrument or financial device means to change a written instrument or financial device without the authority of anyone entitled to grant such authority, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or any other means, so that the written instrument or financial device in its thus altered form falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker. 4. To ?falsely complete? a written instrument or financial device means: a. To transform an incomplete written instrument or financial device into a complete one by adding, inserting, or changing matter without the authority of anyone entitled to grant that authority, so that the complete written instrument or financial device falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker; or b. To transform an incomplete written instrument or financial device into a complete one by adding or inserting materially false information or adding or inserting a materially false statement. A materially false statement is a false assertion that affects the action, conduct, or decision of the person who received or is intended to receive the asserted information in a manner that directly or indirectly benefits the person making the assertion. 5. To ?falsely make? a written instrument or financial device means to make or draw a written instrument or financial device, whether it be in complete or incomplete form, that purports to be an authentic creation of its ostensible maker, but that is not, either because the ostensible maker is fictitious or because, if real, the ostensible maker did not authorize the making or the drawing of the written instrument or financial device. 6. ?Financial device? means any instrument or device that can be used to obtain cash, credit, property, services, or any other thing of value or to make financial payments, including but not limited to: a. A credit card, banking card, debit card, electronic fund transfer card, or guaranteed check card; b. A check; c. A negotiable order of withdrawal d. A share draft; or e. A money order. 7. ?Financial identifying information? means any of the following that can be used, alone or in conjunction with any other information, to obtain cash, credit, property, services, or any other thing of value or to make a financial payment: a. A personal identification number, credit card number, banking card number, checking account number, debit card number, electronic fund transfer card number, guaranteed check card number, or routing number; or b. A number representing a financial account or a number affecting the financial interest, standing, or obligation of or to the account holder. 8. ?Government? means: a. The United States and its departments, agencies, or subdivisions; b. A state, county, municipality, or other political unit and its departments, agencies, or subdivisions; and c. A corporation or other entity established by law to carry out government functions. 9. ?Issuer? means a person, a banking, financial, or business institution, or a corporation or other business entity that assigns financial rights by acquiring, distributing, controlling or, canceling an account or a financial device. 10. ?Number? includes, without limitation, an grouping or combination of letters, numbers, or symbols. 11. ?Of another? means that of a natural person, living or dead, or a business entity as defined in section 16-3-301.1 (11) (b), C.R.S. 12. ?Personal identification number? means a number assigned to an account holder by an issuer to permit authorized use of an account or financial device. 13. ?Personal identifying information? means information that may be used, alone or in conjunction with any other information, to identify a specific individual, including but not limited to a name; a date of birth; a social security number; a password; a pass code; an official, government-issued driver?s license or identification card number; a government passport number; biometric data; or an employer, student, or military identification number. 14. ?Utter? means to transfer, pass, or deliver, or to attempt or cause to be transferred, passed, or delivered, to another person a written instrument or financial device, article, or thing. 15. ?Written instrument? means a paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information, and any money, token, stamp, seal, badge, or trademark or any evidence or symbol of value, right, privilege, or identification, that is capable of being used to the advantage or disadvantage of another.

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your CO Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Identity Theft.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca