Identity theft is a serious crime which people have become increasingly aware of and concerned about. A person who is convicted of identity theft can spend years in jail as a result. If you have been charged with identity theft, an experienced defense attorney can help determine how the law applies to your case and potentially negotiate with a prosecutor for a dismissal or reduced charge. Call Mr. Rosensteel so that he can begin looking at your case today.
In North Carolina, a person commits the crime of identity theft when he:
- knowingly obtains, possesses, or uses
- identifying information of another person, living or dead
- for the purpose of making a financial transaction, obtaining something of value or avoiding legal consequences.
Identity theft is generally punishable as a Class G felony. A person who commits a Class G felony receives a punishment between 8 and 31 months, depending on prior convictions. A person who has no prior convictions can receive an intermediate punishment, but a court is permitted to sentence anyone who has committed a Class G felony to active jail time.
If (1) the victim of identity theft suffers arrest, detention or conviction because of the identity theft or (2) the defendant possesses identifying information of three or more people, then the offense of identity theft is punishable as a Class F felony. A person who commits a Class F felony receives a punishment between 10 and 41 months, depending on prior convictions. A person who has no prior convictions can receive an intermediate punishment, but a court is permitted to sentence anyone who has committed a Class F felony to active jail time.
In addition, North Carolina law permits a court to require a person convicted of identity theft to pay restitution for financial loss suffered by the victim of the identity theft. Financial loss includes actual losses, lost wages, attorneys’ fees, and other costs incurred by the victim in correcting his or her credit history or credit rating, or in connection with any proceeding brought against the victim as a result of the identity theft.
The term “identifying information” is defined by North Carolina statute and includes the following:
- Social security or employer taxpayer identification numbers.
- Drivers license, State identification card, or passport numbers.
- Checking account numbers.
- Savings account numbers.
- Credit card numbers.
- Debit card numbers.
- Personal Identification (PIN) Code.
- Electronic identification numbers, electronic mail names or addresses, Internet account numbers, or Internet identification names.
- Digital signatures.
- Any other numbers or information that can be used to access a person’s financial resources.
- Biometric data.
- Parent’s legal surname prior to marriage.
A defendant has argued that a person’s name and birthdate are not identifying information under the statute. However, the North Carolina Court of Appeals refused to make that holding based on reasoning that the determination was unnecessary because the defendant had used the last four digits of a social security number which was identifying information under the statute.
Intent to Fraudulently Misrepresent
One of the elements of identity theft is that a person have the intent to fraudulently represent himself as another person for the purpose of making a financial transaction, obtaining something of value or avoiding legal consequences. As is the case in many crimes, it can be hard to obtain direct evidence of a person’s intent. Where there is no direct evidence of intent, the defendant’s intent can be inferred based on the defendant’s actions and conduct.
For example, one recent North Carolina case involved a person who possessed the credit card numbers of four people, and fraudulently used other individuals’ credit card numbers. North Carolina courts held that a reasonable juror could infer that based on the defendant’s fraudulent use of other individuals’ credit numbers, the defendant had the requisite intent to fraudulently use the four credit card numbers he possessed.
In another North Carolina case, a man committed a burglary and was found and detained by the police. At the time of his detention, he had another person’s ID in his possession and he represented himself as this other person. The North Carolina Court of Appeals held that this was sufficient to show intent for identity theft because he was trying to avoid the legal consequences of arrest.
Possession of Identifying Information
A person possesses identifying information when he has the power and intent to control its disposition or use. Possession can be either actual or constructive. A person has actual possession of identifying information when he has the identifying information on his person, such as a person who has written down the credit card numbers of others and carries them in his wallet. However, a person can have constructive possession of identifying information that is not on his person, but of which presence he is aware and has the power and intent to control its disposition or use.
Trafficking in Stolen Identities
North Carolina law also makes it a crime to traffic in stolen identities. This law prohibits a person from
- selling, transferring, or purchasing
- the identifying information of another person
- with the intent to commit identity theft or assist someone else in committing identity theft.
Trafficking in stolen identities is punishable as a Class E felony. A person who commits a Class E felony receives a punishment between 15 and 63 months, depending on prior convictions. A person who has no prior convictions can receive an intermediate punishment, but a court is permitted to sentence anyone who has committed a Class E felony to active jail time.
A court may also require a person convicted of trafficking in stolen identities to pay restitution for financial losses incurred by the victim as a result of the identity theft.
If you have been charged with identity theft, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.