Va. Code 18.2-186.3 is the law that governs identity theft. Identity theft is one of the more complex property crimes.

What is Identifying Information?

At the heart of this crime is the term “Identifying information”. “identifying information” is any of the following information:

• (i)                 name;
• (ii)               date of birth;
• (iii)             social security number;
• (iv)             driver’s license number;
• (v)               bank account numbers;
• (vi)             credit or debit card numbers;
• (vii)           personal identification numbers (PIN);
• (viii)         electronic identification codes;
• (ix)             automated or electronic signatures;
• (x)               biometric data;
• (xi)             fingerprints;
• (xii)           passwords; or
• (xiii)         any other numbers or information that can be used to access a person’s financial resources, obtain identification, act as identification, or obtain money, credit, loans, goods, or services.
  
  

Identity Theft Generally:

There are three different identity theft crimes that all deal with illegally using identifying information. The first type of identity theft crime states:

“A. It shall be unlawful for any person, without the authorization or permission of the person or persons who are the subjects of the identifying information, with the intent to defraud, for his own use or the use of a third person, to:

1. Obtain, record, or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;

2. Obtain money, credit, loans, goods, or services through the use of identifying information of such other person;

3. Obtain identification documents in such other person’s name; or

4. Obtain, record, or access identifying information while impersonating a law-enforcement officer or an official of the government of the Commonwealth.”

In order to be guilty of identity theft the prosecutor must prove that the defendant committed one of the four acts listed above. And that they stole information which falls into one of the 13 categories of “identifying information” listed above.

Committing this type of identity theft crime is a class 1 misdemeanor if it is a first offense and the total financial loss to the victim is less than $200.

Class 1 misdemeanors are punishable by up to 12 months in jail and a $2,500 maximum fine.

If a person commits a second offense or if the theft causes $200 or more of financial loss to the victim then it is a class 6 felony.

Class 6 felonies are punishable by a maximum of 5 years in prison and $2,500 in fines.

Identity theft with Intent to Sell or Distribute:

The second form of identity theft crime involves identity theft with the intent to sell or distribute the stolen identification information. The law states:

“B. It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to sell or distribute the information to another to:

1. Fraudulently obtain, record, or access identifying information that is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;

2. Obtain money, credit, loans, goods, or services through the use of identifying information of such other person;

3. Obtain identification documents in such other person’s name; or

4. Obtain, record, or access identifying information while impersonating a law-enforcement officer or an official of the Commonwealth.”

Violating this law is a class 1 misdemeanor if the information of less than 5 people was stolen and the financial loss to the victim was less than $200.

Class 1 misdemeanors are punishable by up to 12 months in jail and a $2,500 maximum fine.

This type of identity theft becomes a class 6 felony if the financial loss to the victims was $200 or more OR if the defendant has been convicted of identity theft in the past.

Class 6 felonies are punishable by a maximum of 5 years in prison and $2,500 in fines.

This type of identity theft becomes a class 5 felony if the defendant stole information belonging to five or more people.

Class 5 felonies are punishable by up to 10 years in prison and a $2,500 fine.

This type of identity theft becomes a class 4 felony if 50 or more people had their information stolen by the same defendant.

Identity Theft to Avoid Arrest or Prosecution:

There is also a third type of identification theft that involves using other people’s identity to try to avoid arrest, traffic tickets, prosecution or to avoid a criminal investigation.

“It shall be unlawful for any person to use identification documents or identifying information of another person, whether that person is dead or alive, or of a false or fictitious person, to avoid summons, arrest, prosecution, or to impede a criminal investigation.”

Committing this type of identity theft crime is a class 1 misdemeanor if it is a first offense and the total financial loss to the victim is less than $200.

Class 1 misdemeanors are punishable by up to 12 months in jail and a $2,500 maximum fine.

If a person commits a second offense or if the theft causes $200 or more of financial loss to the victim then it is a class 6 felony.

Class 6 felonies are punishable by a maximum of 5 years in prison and $2,500 in fines.

If the victims of this type of identity theft were actually arrested and detained because of the defendant’s actions then this type of theft becomes a class 5 felony.

Class 5 felonies are punishable by up to 10 years in prison and a $2,500 fine.

Restitution

If a defendant is found guilty of identity theft, the court shall order the defendant to pay restitution to the victim. The restitution can include money stolen and actual expenses repairing a person’s credit report. This can include legal fees. Restitution can be paid to a person’s estate if the victim is dead.

Identity Theft Defenses:

Most forms of identity theft can be hard to prove without a confession. Proving how a person obtained information can be hard. Additionally, most cases require the victim to be present in court. In the age of the internet, many forms of identity theft occur with the victim and the thief far away from each other. Getting those victims to court can be difficult.

The most common form of identity theft that is prosecuted in state courts is when people use false information to try to avoid arrest or conviction.

In these cases, typically a person is stopped and investigated for an unrelated charge and the suspect gives the police a false social security number, a fake ID or a fake name or a fake date of birth, etc. The police eventually find out the lie and the person is charged with identity theft.

This form of identity theft is so much easier to prove because you do not need to prove how the information was obtained and you usually don’t need to bring the victim to court. Additionally the police officer was there to witness the whole thing so the prosecution does not have to rely on civilian witnesses.

Often the hardest part to prove about this case is whether or not the information belongs to another person. The police need to prove that the name, date of birth, social security number etc. actually belong to a separate human being and were not just randomly picked numbers or names. Also the police need to prove that the identity belongs to another person and is not just a fake ID that the defendant created.

For example, If John Smith is pulled over by the police and he hands the police officer a driver’s license with the name Mark Jones how does the officer prove that Mark Jones is a real person. Mark Jones is a common name, so how do they prove that the identifying information belongs to a specific Mark Jones and not a make-believe Mark Jones?

If a suspect signs a summons or ticket using a fake name they are committing the additional crime of forgery of a public document even if they may or may not be committing identity theft. 

If you have been charged with an identity theft crime in Northern Virginia, call the lawyers of Nichols & Green PLLC (703) 383-9222 for a free consultation today.