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Identity Theft

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1. The Legal Definition of Identity Theft

Identity theft is the taking of another person’s “identifying information” for use in an unlawful manner.

Under Penal Code 530.5, in order for a judge or jury to convict you of identity theft, the prosecutor must prove:

  1. That you willfully obtained another’s personal “identifying information,”
  2. That you willfully used that information for an unlawful or fraudulent purpose, and
  3. That you used the information without consent.

A. “Identifying Information” Defined

Some examples of personal identifying information include:

  1. Names, dates of birth, addresses, and telephone numbers,
  2. Tax I.D. and social security numbers,
  3. Driver’s license and passport information,
  4. School I.D. and employee I.D. numbers,
  5. Bank account or credit card account information, and
  6. Material from birth and death certificates.

B. Definition of “Willfully Obtained”

Someone commits an act willfully when they do it willingly or on purpose.

Acting willfully doesn’t necessarily mean that you seek out the information or took steps to obtain it.

C. Definition of “Unlawful or Fraudulent Purpose”

An unlawful purpose includes using credit, goods, services, real estate, or medical information without the consent of the other person.

It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of your acts.

Typical examples of fraud include:

  1. Using another person’s name to collect insurance benefits, or
  2. Making purchases on someone else’s credit card”.
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1. The Penalties for Identity Theft

Under Penal Code 530.5, identity theft is a “wobbler.”

This means that it may be punished as either a misdemeanor or a felony depending on:

  1. The facts of your case, and
  2. Your criminal history.

A. Misdemeanor Penalty

If you are convicted of identity theft as a misdemeanor you face:

  1. Up to one year in a county jail, and
  2. A maximum $1,000 fine.

B. Felony Punishment

If you are convicted of identity theft as a felony, you face:

  1. 16 months, or two or three years in county jail, and
  2. a maximum fine of $10,000.

C. Multiple Violations

If you use another person’s identifying information more than once, each use is a separate violation of this law.

As a result, these penalties apply to each and every act of identity theft, even if the offense is against the same victim.

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1. Common Defenses to Identity Theft

There are a variety of defenses to identity theft that a quality attorney can present. Some of the most common include:

A. No Unlawful Purpose

Penal Code 530.5 prohibits willfully obtaining another person’s identifying information and using it illegally.

If you obtained someone’s personal information but didn’t use it, you haven’t violated this law.

B. No Fraudulent Intent

Similarly, if you did not intend to commit a fraud, you should not be held liable for identity theft.

Possessing someone else’s personal identifying information is not a crime in and of itself.

It only becomes identity theft if used in an unlawful manner or with fraudulent intent

C. False Accusations/ Mistaken Identity

If we can establish that you are being falsely accused, or you are the victim of mistaken identity, the case should be dismissed.

For example: perhaps a woman whom you used to live with is the victim of identity theft. Because you are the only person who she believes had access to her personal information, she accuses you the crime. In reality, you knew nothing of the matter.

Or perhaps you are a caregiver to an elderly person whose credit card has been used to make unauthorized charges. The elder’s family accuses you, yet it was an estranged son who was making the charges.

D. Computer Service or Software Providers

Under Penal Code 530.5 (f), “an interactive computer service or access software provider … shall not be liable under this section unless the service or provider acquires, transfers, sells, conveys, or retains possession of personal information with the intent to defraud.”

So as long as you comply with this provision, and do not intend to use the information fraudulently, you are exempt from prosecution under this law.

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