Identity Theft

Virginia joined other states in addressing identity theft crimes by establishing a Computer Crime Section (CSS) in the Attorney General’s office. CSS consists of lawyers and attorneys, who are highly knowledgeable about Internet technologies, communication, and computers. CSS helps investigate and prosecute offenses committed using a computer.

Virginia Code 18.2-186.3 explains the penalties, restitution and victim assistance related to identity theft crimes. Part A(1) of the law states that it’s unlawful for an individual to obtain, record or assess personal identifying information without permission of the owner. Clause A(2) asserts that it’s illegal to use a person’s identifying information without their consent to obtain goods, services, loans or money.

You may be charged for obtaining identification documents using other person’s details under VA Code 18.2-186.3 A(3). Clause A(4) of this law states that it’s unlawful to impersonate a law enforcement officer while trying to steal a person’s identifying information. Identity theft with intent to distribute or sell is considered as an unlawful act under VA Code 18.2-186.3B.

VA Code 18.2-186.3C defines “identifying information” as any information or numbers that act as identification or can be used to access resources such as goods, services or money. The information may include personal identification numbers (PIN), biometric data, passwords, and electronic identification codes. Others include credit/debit card numbers, bank account numbers, driver’s license number, name, social security number and date of birth.

The criminal process of identity theft cases in Virginia begins with the victim reporting the crime to the sheriff or police departments. The victim is expected to give supportive evidence for the investigation to begin. Such a case can be handled by a prosecution team consisting of lawyers from the Attorney General’s Office in partnership with Commonwealth’s Attorneys.

The Identity Theft Protection Act for Virginia

The Attorney General’s Office launched the Identity Theft Task Force back in May 2002. The statewide task force constituted consumer advocates, identity theft victims, legislators, law enforcement officers, and business/technology leaders. Their role was to develop practical ways for preventing identity theft and helping the victims. Their findings helped the Virginia Assembly to enact the Identity Theft Protection Act back in 2003.

The Identity Theft Protection Act offers protection against various instances of identity theft. They include public displays of ID cards/badges and social security numbers, impersonation of law enforcement officers and theft of a deceased person’s identity. The Act also mandates victims to file a police report within 30 days.

The Attorney General can help the plaintiff correct the discrepancies in his/her identifying information upon request. The help may involve fixing errors or inaccuracies in credit reports or financial statements. Such assistance doesn’t include legal representation.

• An individual may be lured to respond to an unsolicited email (spam), which promises certain benefits. Such a victim may also be asked to share identifying information to enjoy those benefits. This approach can be referred to as “phishing.”
• Fraudsters retrieve and use other people’s applications for “pre-approved” credit cards from trash cans or mailboxes. They steal such identifying information and use it to activate credit cards.
• Identity theft offenders can also use the “shoulder surfing” method to gain people’s data illegally. Shoulder surfing involves watching someone else from a nearby location with the intention of getting their data. The victim may be sharing their credit card number via text or a phone call.

Fraudsters can easily take over someone else’s identity to commit various crimes. The crimes include falsely applying for credit cards and loans or falsely making bank withdrawals. Other crimes committed using stolen information include obtaining privileges or goods enjoyed by another person or accessing someone else’s online accounts.

Virginia courts usually consider all identity theft crimes to have been committed in the area the owner of the stolen identifying information resides. This consideration is made regardless of whether the crime took place in that locality. In addition to other penalties, defendants are required to make restitution to the owner or estate of the person whose identifying information was stolen. Such restitution involves compensating the owner for the expenses incurred while trying to recover, correct or report his/her identifying information.

VA Code 18.2-186.3D states that identity theft crimes can be punished as a Class 1 misdemeanor in Virginia courts. Violations of VA Codes 18.2-186.3A and 18.2-186.3B are treated as a Class 6 felony if they result in a loss of over $200. You may also be charged with a Class 6 felony when found guilty of violating VA Code 18.2-186.3B where the identifying information belonging to five or more people is lost.

VA Code 18.2-186.3B violations that result in the loss of identifying information belonging to five or more people are treated as a Class 5 felony. Your case may be classified as a Class 6 felony if the stolen information leads to the arrest and detention of the owner. The same charges apply if the stolen information was used to disrupt a criminal investigation or avoid prosecution, arrest or court summons.

Penalties for this Class 6 felony include jail time of up to five years and a fine of up to $2,500. Consequently, the punishment for a Class 5 felony includes jail time of up to 10 years or a fine of not exceeding $2,500. The identity theft charges may be treated as a Class 4 felony if your actions affected 50 or more people. Penalties for such an offense may include a maximum fine of $100,000 and jail time not exceeding 10 years.

Identity theft offenders can get probation sentences depending on the nature of their crimes. Probation, in this case, can be considered as an immediate consequence of an identity theft crime. The court may ask the defendant to undertake community service, take theft classes or check-in with a probation officer.

Are Plea Deals Considered in Identity Theft Cases?

Plea deals can be made when the defendant doesn’t want to go to trial. They also occur in situations where the facts of a case meet the “burden of proof” threshold as stipulated by the government. Such situations occur when documents needed to build a defense can’t be obtained or when witnesses go missing. A defendant can take a plea deal if it’s better than the severe penalties for identity theft.

The victim needs to cooperate with the police department for the prosecution team to build a strong case against you. Cooperation, in this case, involves giving document evidence that you unlawfully stole someone else’s identifying information. The prosecution team can only begin an investigation once the following documents are presented.

Bills or Bank Statements Supporting the Transactions

Prosecutors can use the plaintiff’s bank statement or bills to charge you with identity theft. The plaintiff should underline or circle the fraudulent transactions on the financial statements. The judge may also need photocopies of these bills or bank statements to validate the prosecutor’s allegations. Bank statements that the plaintiff received for newly opened accounts may also suffice as evidence.

Receipts from Merchants

Receipts from merchants can be used to prove that you used someone else’s identifying information to purchase goods or services. The prosecution team can present to the court bills showing that you ordered the goods from specific vendors. Phone numbers associated with the purchase you made can also act as evidence used to incriminate you.

Account Activity Information

The victim can obtain account activity information from the creditors and submit it to the police department as evidence. This information can reveal your location at the time you committed the identity theft crime. Expect it to reveal the number of login attempts and user activities related to an account.

Name and Contact Details of Your Co-Conspirators

Your co-conspirators can make your identity theft charges more severe if they didn’t cover their tracks. The prosecution team can obtain their personal information and use it to argue your conviction. Your co-conspirators also risk facing penalties if the evidence reveals ways you worked with them to commit the crime.

Credit Reports for the Accounts You Opened

Victims of identity theft crimes can obtain credit reports for accounts that were opened using their personal information. They can prove this case by submitting their actual credit reports. The judge may convict you for violating VA Code 18.2-186.3 if the prosecutors manage to use this evidence against you.

Proof of Stolen Checks

Under VA Code 18.2-186.3, identity theft covers theft of financial information such as bank accounts and checks. A report from the check verification companies can be used to prove that you’re guilty of identity theft charges. Check verification companies usually cancel payments on outstanding checks if they’re compromised.

Proof of Mail Theft or Fraudulent Address Changes

The United States Postal Inspector’s Office usually receives reports regarding postal mail activities. Such activities include an unlawful change of address and mail theft. The prosecution team can use a report issued by the U.S Postal Inspector’s Office to file a case against you.

Proof of Stolen or Compromised ATM Cards

The plaintiff can present a report from the card issuer showing proof of stolen or compromised ATM card. The report can act as evidence for an identity theft case. The Federal Electronic Fund Transfer Act (EFTA) urges ATM cardholders to contact their card issuers in writing if their cards are missing. EFTA also encourages them to request a new account number, password, and card.

With the assistance of a criminal defense lawyer, it’s possible to convince the judge that you’re innocent. Your attorney may need to present certain legal defenses backed with evidence for a fair hearing. The defenses are as follows:

1. Mistaken Identity or False Accusations

Your charges should be dismissed if your lawyer can establish that you’re a victim of mistaken identity. The charges can also be dropped if the lawyer can prove that someone else falsely accused you of the crime. For instance, an ex-spouse may frame you for a crime he/she committed. Possible motives for such actions include revenge, attention seeking or mental illness.

2. You Didn’t Intend to Commit Identity Theft

Virginia Code 18.2-186.3 explains that the defendant must have "intent" for his/her actions. Your lawyer can state that your actions weren’t intended on stealing other people’s information. The court shouldn’t hold you liable for the charges because you didn’t act out of intent. You stand a chance to have a fair hearing since it’s not illegal to have someone else’s personal identifying information in your possession.

3. You Didn’t Use the Identifying Information for an Illegal Purpose

The prosecution team needs to prove that you used someone else’s identification information to conduct illegal activities. Such activities include defrauding or impersonating a law enforcement officer. Your attorney has to explain to give the court reasons why the identification information was in your possession.

4. You’re an Interactive Software or Computer Service Provider

Working as an interactive computer service provider can give you access to other people’s identification information. Section 230 of Title 47 of the US Code allows specialists such as interactive computer service providers to access people’s personal information. However, these specialists can face fraud charges if they intended to use the data for malicious gains. You may be exempted from prosecution if your actions comply with the clauses of this law.

Identity theft can either be classified as a felony or misdemeanor in Virginia. You may be convicted for other offenses if the prosecution team fails to prove to the court that you’re guilty. The offenses are highlighted in Virginia state laws. They include:

1. Intent to Harass or Intimidate Using Someone Else’s Identity (VA Code 18.2-186.4)

Such an offense is categorized as a misdemeanor in Virginia. The court might charge you for this crime if you leaked a person’s identity and other personal information online without their consent. The information includes full names, telephone number, address and photographs. As a Class 1 misdemeanor offense, penalties include jail time of up to one year and fines ranging from $1,000 to $2,500.

You might be charged for a Class 6 felony if the crime involved leaking a law enforcement officer’s details to the public. Law enforcement officers covered under VA Code 18.2-186.4 include prison wardens, sheriffs, judges and police officers. Penalties for this Class 6 felony include a fine of up to $2,500 or twelve months imprisonment.

2. Credit Card Fraud (VA Code 18.2-195)

Under Virginia Code 18.2-195, credit card fraud involves attempting to use someone else’s credit card without their permission. The credit card may be lost but picked up by you or may be stolen. VA Code 18.2-195 also covers expired and revoked credit cards. You may be charged for pretending to the card’s owner or using the card to obtain goods, services, cash or credit.

Credit card fraud might be treated as a Class 6 felony if the defendant used more than $200 to obtain goods or services. The crime can be treated as a misdemeanor if the value of the goods or money that was taken using the card is less than $200. Individuals who conspire with credit card fraudsters are considered as co-conspirators. They risk facing a minimum jail time of one year.

3. Sharing Someone Else’s Social Security Numbers (VA Code 59.1-443.2)

VA Code 59.1-443.2 asserts that it’s unlawful to intentionally share a person’s social security numbers without their consent. Sharing, in this case, includes publishing the number on public platforms or channels. VA Code 59.1-443.2 also applies to business establishments that have access to their workers’ social security numbers.

Website owners may be charged for requiring Internet users to post their social security numbers in the sign-in forms. Under VA Code 59.1-443.2, businesses can only include social security numbers on important letters if they are sealed. The businesses should only include 4 or 5 digits of the social security numbers. Such letters shouldn’t be placed in the public domain or sent as a postcard.

The Virginia Constitution allows defendants to seek legal representation on criminal charges. Offenses such as identity theft attract hefty fines and long prison sentences. A criminal defense attorney can help convince the court of your innocence or negotiate fair sentencing. You need to speak to the lawyer as soon as you’re booked for detention.

At Virginia Criminal Attorney, we believe that well-planned legal defenses backed with evidence can help our clients fight criminal charges in court. With our office in Fairfax, VA, our mission is to offer peace of mind to clients who risk paying huge fines or facing long prison sentences. Call our Fairfax criminal lawyer at 703-718-5533 today, to speak with one of our experienced attorneys on how to fight your case.