The crisis of identity theft has been around for long enough and has enhanced with the digitization of most systems that store personal details. The scope of the crime involves using other people’s identification details to gain access to various benefits. While some victims of the crime make genuine claims, defendants often find themselves on the wrong side of the law because of unfair modes of investigations unleashed on a case. Several elements of the crime require minimum to no proof of intention, yet you may still face a conviction. Identity theft also involves numerous factors that many people overlook. If you face identity theft charges, it is best to seek the guidance of a criminal defense lawyer who will take you through several options to resolve the issue. The most viable option includes facing trial and accepting legal representation from your attorney.
We at the California Criminal Lawyer Group have a lot to offer our clients, including a proper analysis of the case facts, preparing several defenses and arguments to present in court. Moreover, we offer all our clients personalized solutions that will give you a fair trial and outcome to help you get back to your life. With a brilliant team of criminal defense lawyers, you can trust in our support and advice as we walk you through the trial process.
The Legal Definition of Identity Theft
The term identity theft may generate several meanings that fit every-day language use. However, the California Penal Code gives a detailed statutory definition that accommodates all possible actions that qualify to be identity theft cases. Section 530.5 of the Penal Code describes the crime as a voluntary action to take and distribute another person’s personal information for unlawful purposes. The subsections also proceed to give other possible activities you may partake in that lead to committing the crime. The several options that will qualify you for an identity theft arrest are:
You Intentionally Collect Another Person’s Identity Information With or Without Consent For Unlawful Use
If for any reason, you manage to collect identification data that belongs to another person without their knowledge and consent, you will face arrest. Unlawful purposes are fraudulent transactions that promote illegal access to benefits that would otherwise be beyond your reach. The intention must be voluntary, meaning that you must not act for anybody under coercion or duress. Therefore, if there is evidence that shows a direct manipulation of your actions by a primary offender, the judge or jury handling your case may issue fewer penalties.
Additionally, the lack of consent is a primary factor for authorities to make a lawful arrest. Thus, the claimant must show that he or she did not give any direct or implied consent to your actions. Direct consent involves uttering words of affirmation that give you the green light to proceed with the intended operations. Conversely, implied consent has more grey areas that may complicate your case, depending on the evidence presented by the prosecutor versus your own. If you rely on implied consent, you should highlight actions or omissions that indicated that the claimant had no problem with your actions. Most of the cases that bring in the consent factor involved parties that have a relationship.
A good example is a spousal relationship or a worker-employer arrangement. The party that holds superior authority over the other may file a suit against you, the defendant, if you happen to access funds or other benefits using their personal information. Implied consent may give the impression to proceed with an innocent transaction, primarily if the action to obtain the claimant’s personal information is habitual.
Using Another Person’s Information Without Consent for Fraudulent Purposes
This scenario differs from the first one in that here, you use the collected information to impersonate the unsuspecting person and obtain benefits illegally. The crime of fraud involves giving false information that includes fabricated identities to access another person’s interests. Thus, identity theft is related to fraud, because both involve obtaining falsified information and presenting it as your own. Your intentions should consist of an unlawful outcome that translates to online credit theft, accessing opportunities that you do not qualify for, or any other unfair results to the victim.
An essential element to include before the prosecutor can enter an identity theft charge is the absence of consent. Most cases deal with parties that have never met in person or even online. The judge considers such facts before deciding on an implied demonstration of a lack of consent. Also, if you used coercion, trickery, or other unlawful means to obtain permission from the victim of identity theft, you will aggravate the factors to consider in your case. Subsequently, you could face more significant penalties and receive higher sentences. For example, if you open a website that presents a fake opportunity for citizens to apply for jobs by leaving their I.D. numbers, their photos, and their card details to use the information later, you commit an identity theft crime.
Giving Out Another Person’s Details Knowing it Will Facilitate a Fraudulent Transaction
Suppose your friend asks you for your parent’s social security number and credit card details that are used to steal money from his/her account, will you be guilty of identity theft? It depends on the circumstances of the case. If you had no idea that the information provided would be manipulated to promote fraudulent actions that cause financial damages, you could escape liability. However, if you are part of a scheme to defraud people by distributing their identification data to well known illegal operations, you are guilty of aiding a crime of identity theft. By association, the judge can still find you guilty of identity theft by direct involvement.
The criminal intent sets the difference between a guilty and an innocent defendant because it demonstrates premeditated actions. While the prosecutor does not have to show the presence of the Mens Rea element, knowledge of a pending illegal operation will shift the balance and land you in a disadvantaged position.
Selling the Victim’s Personal Information to a Third Party Without the Owner’s Consent
If you have to sell unsuspecting victims’ personal information on unauthorized websites or any other platforms, then you know that trouble is looming. Selling the personal data involves the initial collection of the data by illegal means that include forceful obtaining of data, duplication of the victim’s details, or secretly checking when a Personal Identification Number is in use. By engaging any of these actions to pick up personal information, you become a party to the crime as well, because no consent from the owner of the data is available. All these methods of data collection are unlawful and compromise the victim’s knowledge, thus translate to identity theft.
When you proceed to share the information you collect for a profit, you extend the application of the data to another person who engages in the actual unlawful transactions. While you may consider yourself a passive party in the grand scheme of things, your action of selling the victim’s data places the same liability for the crime of identity theft as the third party.
What The Prosecution Needs to Prove for Identity Theft Conviction
The criminal trial process follows similar court procedures that both the prosecutor and the defendants have to comply with for a smooth case run. The regulations also promote a cohesive relationship between the parties to the case and the law. Hence, each party must oblige to the set requirements that support a fair trial process. One of the first provisions requires the prosecutor to present a decent argument against the defendant and prove the elements of the crime beyond a reasonable doubt. A failure to verify all the necessary facts and conclusions that the prosecutor has in his/her submissions renders the case incomplete. You could be lucky enough to face an acquittal or receive a reduced sentence.
Even so, the prosecutor working on your case will make every effort to ensure that all the loopholes and possible counter-arguments you present have supporting evidence that proves your guilt. However, having a reasonable defense attorney who can present rebuttals against the prosecutor’s evidence and witness statements will guarantee you a positive outcome to your trial. Before the presiding judge finds you guilty, the prosecutor has to prove these factors:
Your Action Was Wilful
A wilful intention involves a criminal intent or Men’s Rea. The presence of this element is the backbone of all the arguments that the prosecutor will proceed to raise because it demonstrates a predetermined course of action. Often, the prosecuting officer will rely on previous events that occurred before your arrest, along with collected evidence that proves your active or passive indulgence in identity theft. He or she may scour through your phone call logs, texts, or search history and present transcripts that potentially show your preparations to indulge in the crime.
Moreover, if you are the mastermind of a large scale identity theft scam, witness statements from accomplices could throw you off and demonstrate your intention to obtain the unsuspecting person’s private details.
Wilful intention also lies in your knowledge of a probable unlawful outcome that arises from you spreading details that belong to the claimant. Proceeding with a transaction that distributes the data will prove that you knew what you were doing and decided to continue with it. The prosecution relies on circumstances around the time of committing the crime to solidify their claim of a willful intention. If they can prove that nobody coerced you into conducting identity theft, they will have the upper hand against you. It is essential to inform your criminal lawyer of any prior duress or influence from a third party to indulge in the illegal activity because it will come in handy as a defense for your case.
You Obtained Another Person’s Identification Details Without Consent
Logic dictates that if you have consented to access another person’s information, you do not have to go through the trouble of finding it out yourself. Most suspects involved in identity theft access the victim’s data by running illegal web searches or making unauthorized calls to vulnerable parties that may disclose the data they are seeking. Here, the prosecutor must show that you went out of your way to obtain the claimant’s personal information through any of the means stated. He or she may opt for the option of engaging criminal investigators to verify their accusations.
While the prosecutor may obtain a court order that allows investigators to go through your phone, computer, or even your residence, you can object to the move. The grounds for the objection will attract the judge’s attention, especially if rummaging through your data is irrelevant to the case facts. However, the prosecutor will often succeed in obtaining the warrant and will earn the right to check for any evidence.
You need to remember that you should not delete any information, whether it will incriminate you or not. The teams that liaise with criminal investigators incorporate very advanced technological equipment that will show an attempt to discard past contact information. Moreover, the deleted data is still accessible using a thorough search, so it will do you more harm than good to erase any data you have.
On top of the exposure threat you face when the prosecution team exercises their investigation, you face the risk of facing additional charges to do with the destruction of evidence. Eventually, all the different actions you take trying to discard evidence may catch up with you and cause a more significant problem than the one at hand. We recommend remaining calm and cooperating with the investigators, as your criminal attorney works on a defense strategy. Furthermore, showing a cooperative spirit will mitigate any additional punitive measures that the judge would have otherwise taken against you.
Additionally, the prosecutor must prove that what you obtained was personal information that is unique to the claimant. Therefore, there is a presumption of fact that requires proof of existing data belonging to the identity theft victim. Th acceptance kinds of data that fall within the definition of identity theft are:
Credit card details
National Identification Card Number
Birth or death certificates
Social security numbers
If none of the information used to make accusations against you shows a direct link to the victim, the prosecutor’s presentation weakens. For example, if the claim against you is that you used the complainant’s first name and the name of the street where he/she resides only, it creates a lot of doubt. There could be two or more people who live along the same street, with the same first name as the claimant. However, even though this general accusation holds no direct link to the claimant, the judge will still question your choice in using another person’s name and not yours.
You Engaged in Unlawful Transactions Using the Obtained Information
The prevalent identity theft outcome is a fraud that involves monetary theft, or illegal access to many other gains. The prosecutor does not need to prove your indulgence in the scam, as long as it is clear that your actions to steal other’s details would have led to such an outcome. Instead, he or she will attempt to trace your steps and link them to following fraudulent action.
Your lawyer will be keen to the details that the prosecutor includes in his or her evidential statements, to prevent false accusations. To help your attorney develop the best defense system, you need to be open and provide all the details that will demonstrate that you did not engage in the fraudulent activities. However, the points of proof also render it unimportant to show that the victim incurred losses, provided you already had access to their information. Consequently, your options for getting out of this particular element of the crime are limited because of the guiding principles that reduce the prosecutor’s workload. However, your counter-arguments go a long way in introducing new facts to the case that will challenge the prosecutor’s submissions of accusations.
Penalties of an Identity Theft Crime
The offense is a wobbler crime that creates two possible outcomes for your charges. You could face a misdemeanor or felony charge, depending on several aggravating factors that worsen the liability burden on your side. For example, if you involved yourself in multiple identity thefts that warranted a class action or several consecutive trials, you are likely to face a felony charge. On the other hand, if your crime involved aiding and abetting a third party to commit the crime by selling or distributing the victim’s identification details, you could face misdemeanor charges.
Along with other circumstances, the presiding judge or jury will assess the impact and damages you caused to the claimant and determine the category of punishment you qualify to face. The aggravating circumstances will present a challenge to your defense, especially if the evidence showed a direct link to your criminal actions.
When charged with a misdemeanor, you will face a fine penalty of up to $1,000 or a jail sentence with up to one year in county jail. You could also face both penalties, depending on the events and circumstances that transpired in your case. Additionally, the misdemeanor charge gives a probation allowance that lets you serve your sentence outside the jail, but under stringent rules and assessments.
Mitigating actions will enable you to access probation penalties instead of jail terms. For example, if you are an employee who genuinely believed that you received implied consent to share another worker’s identification details to fraudsters in disguise, you could face lesser charges. However, your failure to practice the duty to consult and confirm the validity of the third party’s intention may cost you complete freedom.
As a felony, the crime of identity theft carries a $10,000 fine or up to three years in jail, depending on the severity of your wrongful actions. Also, you are eligible for a formal probation program in place of direct imprisonment if your case is mitigated.
Besides the penalties you face, immigrants have a lot more to lose with a guilty status to an identity theft crime. The worst-case scenario could get you deported, especially if your actions cost someone a lot of financial losses. The immigration department may revoke your immigrant privileges and order for your deportation.
Also, the authorities may run your details through their system and mark you as an inadmissible immigrant. The ineligible status means that you cannot access any of the states because you used a fabricated identity to gain citizenship. Consequently, your access to the country is restricted and, in severe cases, permanently revoked.
Defenses for Identity Theft Crime
Your lawyer’s primary duty is to ensure that he/she presents the most persuasive arguments that demonstrate your non-participation in the crime. A good defense may not absolve you of conviction, but it goes a long way in mitigating your situation and influencing a more lenient sentence. Working closely with your lawyer will give you access to the following defenses:
Your Actions Were Involuntary
Working under coercion from a third party robs you of the chance to object out of fear of harm. If you can present evidence that supports your claim for forced actions under duress, the judge will consider the circumstances and determine whether to reduce your penalties or find you not guilty of the crime. However, you should point out the perpetrator if the authorities have not yet identified who he/she is. The move will not only shift the blame but also work to mitigate your case further.
You Lacked the Intention to Commit Unlawful Actions.
Often, you could be the victim of trickery or fraud yourself, which then creates a chain of unlawful actions that lead to identity theft. Also, you may use another person’s details like their social security number to register for any kind of program. If they discover that their private information is in use, later on, they could press charges getting to the bottom of the situation. If you were acting in good faith to get them a surprise opportunity or make a genuine purchase that required their physical address, you should present all the evidence that validates your claims and removes any criminal links to your actions.
Making a consultation with your criminal lawyer will broaden the possibilities of applicable defenses because we will get to analyze your case and come up with arguments unique to your case facts.
Find a Criminal Attorney Law Firm Near Me
A lot may get twisted in a claim of identity theft. It is common to end up as the defendant in a case, even when you also fall victim to the mastermind plan. Reaching out to the best criminal defense law firm you can access will be highly beneficial to your case because you receive valid and professional legal advice. At California Criminal Lawyer Group, we will take you through all you need to know before facing trial. Our support will also take you through the litigation journey and beyond. Contact us at 408-622-0204.