CHAPTER 289

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CRIMINAL LAW AND PROCEDURE

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HOUSE BILL 06-1326 [Digest]

BY REPRESENTATIVE(S) Crane, Riesberg, Liston, Coleman, Schultheis, Marshall, Butcher, Todd, Balmer, Benefield, Berens, Borodkin, Boyd, Cadman, Carroll T., Clapp, Cloer, Curry, Decker, Frangas, Gardner, Green, Hall, Harvey, Hefley, Hodge, Hoppe, Jahn, Kerr J., King, Knoedler, Larson, Lindstrom, Lundberg, Massey, May M., McCluskey, McFadyen, McGihon, McKinley, Merrifield, Paccione, Penry, Rose, Soper, Stafford, Stengel, Sullivan, Vigil, Welker, White, Witwer, Carroll M., Garcia, Kerr A., Madden, Romanoff, and Solano;

also SENATOR(S) Grossman, Spence, Brophy, Hanna, Kester, May R., Shaffer, Taylor, Bacon, Dyer, Evans, Fitz-Gerald, Gordon, Groff, Isgar, Johnson, Jones, Keller, Lamborn, Mitchell, Owen, Teck, Tochtrop, Traylor, Tupa, Veiga, Wiens, Williams, and Windels.

AN ACT

Concerning identity theft, and making an appropriation in connection therewith.

Be it enacted by the General Assembly of the State of Colorado:

  SECTION 1.  18-1-202, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

  18-1-202.  Place of trial. (13)  If a person commits identity theft as described in section 18-5-902, identity theft is committed and the offender may be tried in any county where a prohibited act was committed, in any county where an act in furtherance of the offense was committed, or in any county where the victim resides during all or part of the offense. For purposes of this subsection (13), a business entity resides in any county in which it maintains a physical location.

  SECTION 2.  18-1-202 (7) (b) (II), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUB-SUBPARAGRAPH to read:

  18-1-202.  Place of trial. (7) (b) (II)  The provisions of subparagraph (I) of this paragraph (b) shall apply to the following offenses:

  (W)  Identity theft, as defined in section 18-5-902.

  SECTION 3.  Repeal.  18-5-117, Colorado Revised Statutes, is repealed as follows:

  18-5-117.  Unlawful possession of personal identifying information. (1)  A person shall not possess the personal identifying information of another person with the intent to use the information, or to aid or permit another to use the information, to unlawfully gain a benefit for himself or herself or another person, or to injure or defraud another person.

  (2)  Unlawful possession of personal identifying information is a class 1 misdemeanor.

  (3)  As used in this section, "personal identifying information" shall have the same meaning as provided in section 6-1-713 (2), C.R.S., but shall not include a financial transaction device as defined in section 18-5-701 (3).

  SECTION 4.  Repeal.  18-5-119, Colorado Revised Statutes, is repealed as follows:

  18-5-119.  Theft of personal identifying information. (1) (a)  A person who, with the intent to defraud another person of personal identifying information, unlawfully enters a trash receptacle and takes documents from that trash receptacle commits theft of personal identifying information.

  (b)  For purposes of this section, "personal identifying information" shall have the same meaning as provided in section 6-1-713 (2), C.R.S.; except that "personal identifying information" shall not include a financial transaction device, as defined in section 18-5-701 (3).

  (2)  Theft of personal identifying information is a class 1 misdemeanor.

  SECTION 5.  Repeal.  18-5-120, Colorado Revised Statutes, is repealed as follows:

  18-5-120.  Gathering personal information by deception. (1) (a)  A person commits gathering personal information by deception if, without permission or lawful authority, he or she knowingly makes or conveys a materially false statement over a computer or computer network, over the telephone, or by any other electronic medium with the intent to obtain, record, or access the personal identifying information of another.

  (b)  For purposes of this section, "personal identifying information" shall have the same meaning as provided in section 6-1-713 (2), C.R.S.; except that "personal identifying information" shall not include a financial transaction device, as defined in section 18-5-701 (3).

  (2)  Gathering personal information by deception is a class 1 misdemeanor.

  SECTION 6.  Repeal.  18-5-703, Colorado Revised Statutes, is repealed as follows:

  18-5-703.  Criminal possession of a financial transaction device. (1)  A person commits criminal possession of a financial transaction device if he has in his possession or under his control any financial transaction device, with the intent to defraud, or any financial transaction device which he knows or reasonably should know to be lost, stolen, or delivered under a mistake as to the identity or address of the account holder.

  (2)  Criminal possession of one financial transaction device is a class 1 misdemeanor.

  (3)  Criminal possession of two or more financial transaction devices is a class 6 felony.

  (4)  Criminal possession of four or more financial transaction devices issued to different account holders is a class 5 felony.

  SECTION 7.  Repeal.  18-5-704, Colorado Revised Statutes, is repealed as follows:

  18-5-704.  Sale or possession for sale of a financial transaction device. (1)  A person commits a class 5 felony if, with intent to defraud, he sells, or has in his possession or under his control with the intent to deliver, circulate, or sell, any financial transaction device which he knows or reasonably should know to be lost, delivered under a mistake as to the identity or address of the account holder, stolen, forged, altered, or counterfeited.

  (2)  A person commits a class 3 felony if, with intent to defraud, he sells, or has in his possession or under his control with the intent to deliver, circulate, or sell, two or more financial transaction devices which he knows or reasonably should know to be lost, delivered under a mistake as to the identity or address of the account holder, stolen, forged, altered, or counterfeited.

  SECTION 8.  Article 5 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PART to read:

PART 9

IDENTITY THEFT AND RELATED OFFENSES

  18-5-901.  Definitions. As used in this part 9, unless the context otherwise requires:

  (1)  "Account holder" means any person or business entity named on or associated with the account or named on the face of a financial device to whom or for whose benefit the financial device is issued by an issuer.

  (2)  "Extension of credit" means any loan or agreement, express or implied, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.

  (3)  To "falsely alter" a written instrument or financial device means to change a written instrument or financial device without the authority of anyone entitled to grant such authority, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or any other means, so that the written instrument or financial device in its thus altered form falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker.

  (4)  To "falsely complete" a written instrument or financial device means:

  (a)  To transform an incomplete written instrument or financial device into a complete one by adding, inserting, or changing matter without the authority of anyone entitled to grant that authority, so that the complete written instrument or financial device falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker; or

  (b)  To transform an incomplete written instrument or financial device into a complete one by adding or inserting materially false information or adding or inserting a materially false statement. A materially false statement is a false assertion that affects the action, conduct, or decision of the person who receives or is intended to receive the asserted information in a manner that directly or indirectly benefits the person making the assertion.

  (5)  To "falsely make" a written instrument or financial device means to make or draw a written instrument or financial device, whether it be in complete or incomplete form, that purports to be an authentic creation of its ostensible maker, but that is not, either because the ostensible maker is fictitious or because, if real, the ostensible maker did not authorize the making or the drawing of the written instrument or financial device.

  (6)  "Financial device" means any instrument or device that can be used to obtain cash, credit, property, services, or any other thing of value or to make financial payments, including but not limited to:

  (a)  A credit card, banking card, debit card, electronic fund transfer card, or guaranteed check card;

  (b)  A check;

  (c)  A negotiable order of withdrawal;

  (d)  A share draft; or

  (e)  A money order.

  (7)  "Financial identifying information" means any of the following that can be used, alone or in conjunction with any other information, to obtain cash, credit, property, services, or any other thing of value or to make a financial payment:

  (a)  A personal identification number, credit card number, banking card number, checking account number, debit card number, electronic fund transfer card number, guaranteed check card number, or routing number; or

  (b)  A number representing a financial account or a number affecting the financial interest, standing, or obligation of or to the account holder.

  (8)  "Government" means:

  (a)  The United States and its departments, agencies, or subdivisions;

  (b)  A state, county, municipality, or other political unit and its departments, agencies, or subdivisions; and

  (c)  A corporation or other entity established by law to carry out governmental functions.

  (9)  "Issuer" means a person, a banking, financial, or business institution, or a corporation or other business entity that assigns financial rights by acquiring, distributing, controlling, or cancelling an account or a financial device.

  (10)  "Number" includes, without limitation, any grouping or combination of letters, numbers, or symbols.

  (11)  "Of another" means that of a natural person, living or dead, or a business entity as defined in section 16-3-301.1 (11) (b), C.R.S.

  (12)  "Personal identification number" means a number assigned to an account holder by an issuer to permit authorized use of an account or financial device.

  (13)  "Personal identifying information" means information that may be used, alone or in conjunction with any other information, to identify a specific individual, including but not limited to a name; a date of birth; a social security number; a password; a pass code; an official, government-issued driver's license or identification card number; a government passport number; biometric data; or an employer, student, or military identification number.

  (14)  "Utter" means to transfer, pass, or deliver, or to attempt or cause to be transferred, passed, or delivered, to another person a written instrument or financial device, article, or thing.

  (15)  "Written instrument" means a paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information, and any money, token, stamp, seal, badge, or trademark or any evidence or symbol of value, right, privilege, or identification, that is capable of being used to the advantage or disadvantage of another.

  18-5-902.  Identity theft. (1)  A person commits identity theft if he or she:

  (a)  Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;

  (b)  Knowingly possesses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority, with the intent to use or to aid or permit some other person to use such information or device to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;

  (c)  With the intent to defraud, falsely makes, completes, alters, or utters a written instrument or financial device containing any personal identifying information or financial identifying information of another;

  (d)  Knowingly possesses the personal identifying information or financial identifying information of another without permission or lawful authority to use in applying for or completing an application for a financial device or other extension of credit;

  (e)  Knowingly uses or possesses the personal identifying information of another without permission or lawful authority with the intent to obtain a government-issued document; or

  (f)  Attempts, conspires with another, or solicits another to commit any of the acts set forth in paragraphs (a) to (e) of this subsection (1).

  (2)  Identity theft is a class 4 felony.

  (3)  The court shall be required to sentence the defendant to the department of corrections for a term of at least the minimum of the presumptive range and may sentence the defendant to a maximum of twice the presumptive range if:

  (a)  The defendant is convicted of identity theft; and

  (b)  The defendant has a prior conviction for a violation of this part 9 or a prior conviction for an offense committed in any other state, the United States, or any other territory subject to the jurisdiction of the United States that would constitute a violation of this part 9 if committed in this state.

  18-5-903.  Criminal possession of a financial device. (1)  A person commits criminal possession of a financial device if the person has in his or her possession or under his or her control any financial device that the person knows, or reasonably should know, to be lost, stolen, or delivered under mistake as to the identity or address of the account holder.

  (2) (a)  Criminal possession of one financial device is a class 1 misdemeanor.

  (b)  Criminal possession of two or more financial devices is a class 6 felony.

  (c)  Criminal possession of four or more financial devices, of which at least two are issued to different account holders, is a class 5 felony.

  18-5-904.  Gathering identity information by deception. (1)  A person commits gathering identity information by deception if he or she knowingly makes or conveys a materially false statement, without permission or lawful authority, with the intent to obtain, record, or access the personal identifying information or financial identifying information of another.

  (2)  Gathering identity information by deception is a class 5 felony.

  18-5-905.  Possession of identity theft tools. (1)  A person commits possession of identity theft tools if he or she possesses any tools, equipment, computer, computer network, scanner, printer, or other article adapted, designed, or commonly used for committing or facilitating the commission of the offense of identity theft as described in section 18-5-902, and intends to use the thing possessed, or knows that a person intends to use the thing possessed, in the commission of the offense of identity theft.

  (2)  Possession of identity theft tools is a class 5 felony.

  SECTION 9.  18-17-103 (5) (b) (IV), Colorado Revised Statutes, is amended to read:

  18-17-103.  Definitions. (5)  "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:

  (b)  Any violation of the following provisions of the Colorado statutes or any criminal act committed in any jurisdiction of the United States which, if committed in this state, would be a crime under the following provisions of the Colorado statutes:

  (IV)  Offenses involving fraud, as defined in sections 18-5-102 (forgery), 18-5-104 (second degree forgery), 18-5-105 (criminal possession of forged instrument), 18-5-109 (criminal possession of forgery devices), 18-5-110.5 (trademark counterfeiting), 6-16-111, C.R.S., (felony charitable fraud), 18-5-206 (defrauding a secured creditor or debtor), 18-5-403 (bribery in sports), 18-5-113 (criminal impersonation), and 18-5-114 (offering a false document for recording), 18-5-702 (unauthorized use of a financial transaction device), 18-5-705 (criminal possession or sale of a blank financial transaction device), 18-5-706 (criminal possession of forgery devices), 18-5-707 (unlawful manufacture of a financial transaction device), 18-5-902 (identity theft), 18-5-903 (criminal possession of a financial device), 18-5-904 (gathering identity information by deception), and 18-5-905 (possession of identity theft tools);

  SECTION 10.  6-1-711 (2), Colorado Revised Statutes, is amended to read:

  6-1-711.  Restrictions on credit card receipts - legislative declaration - application - definitions. (2)  No person that accepts credit cards for the transaction of business shall print more than the last five digits of the credit card account number or print the credit card expiration date, or both, on a credit card receipt. to the cardholder.

  SECTION 11.  Part 1 of article 1 of title 17, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

  17-1-153.  Appropriation to comply with section 2-2-703 - HB 06-1326. (1)  Pursuant to section 2-2-703, C.R.S., the following statutory appropriations, or so much thereof as may be necessary, are made in order to implement H.B. 06-1326, enacted at the second regular session of the sixty-fifth general assembly:

  (a)  For the fiscal year beginning July 1, 2006, in addition to any other appropriation, there is hereby appropriated from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of six hundred ten thousand three hundred fifty-eight dollars ($610,358).

  (b) (I)  For the fiscal year beginning July 1, 2007, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of six hundred ten thousand three hundred fifty-eight dollars ($610,358).

  (II)  For the fiscal year beginning July 1, 2007, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of one hundred eighty-seven thousand six hundred ninety-one dollars ($187,691).

  (c) (I)  For the fiscal year beginning July 1, 2008, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of four hundred sixty-two thousand one hundred twenty-eight dollars ($462,128).

  (II)  For the fiscal year beginning July 1, 2008, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of three hundred seventy-five thousand three hundred eighty-two dollars ($375,382).

  (d)  For the fiscal year beginning July 1, 2009, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of five hundred seventeen thousand four hundred ninety-one dollars ($517,491).

  (e)  For the fiscal year beginning July 1, 2010, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of five hundred seventeen thousand four hundred ninety-one dollars ($517,491).

  SECTION 12.  24-75-302 (2) (s), (2) (t), and (2) (u), Colorado Revised Statutes, are amended to read:

  24-75-302.  Capital construction fund - capital assessment fees - calculation. (2)  As of July 1, 1988, and July 1 of each year thereafter through July 1, 2008, a sum as specified in this subsection (2) shall accrue to the capital construction fund. The state treasurer and the controller shall transfer such sum out of the general fund and into the capital construction fund as moneys become available in the general fund during the fiscal year beginning on said July 1. Transfers between funds pursuant to this subsection (2) shall not be deemed to be appropriations subject to the limitations of section 24-75-201.1. The amount which shall accrue pursuant to this subsection (2) shall be as follows:

  (s)  On July 1, 2006, twenty-two thousand nine hundred twenty-four dollars pursuant to section 3 of H.B. 02S-1006, enacted at the third extraordinary session of the sixty-third general assembly; plus two hundred ninety-one thousand seven hundred sixty-one dollars pursuant to H.B. 03-1004, enacted at the first regular session of the sixty-fourth general assembly; plus one hundred twenty-five thousand forty-one dollars pursuant to H.B. 03-1138, enacted at the first regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 03-1213, enacted at the first regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 03-1317, enacted at the first regular session of the sixty-fourth general assembly; plus ninety thousand three hundred seven dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 04-1016, enacted at the second regular session of the sixty-fourth general assembly; plus six hundred ten thousand three hundred fifty-eight dollars pursuant to H.B. 06-1326, enacted at the second regular session of the sixty-fifth general assembly;

  (t)  On July 1, 2007, four hundred sixteen thousand eight hundred two dollars pursuant to H.B. 03-1004, enacted at the first regular session of the sixty-fourth general assembly; plus fifty-five thousand five hundred seventy-four dollars pursuant to H.B. 03-1317, enacted at the first regular session of the sixty-fourth general assembly; plus thirteen thousand eight hundred ninety-three dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus six hundred ten thousand three hundred fifty-eight dollars pursuant to H.B. 06-1326, enacted at the second regular session of the sixty-fifth general assembly;

  (u)  On July 1, 2008, sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus four hundred sixty-two thousand one hundred twenty-eight dollars pursuant to H.B. 06-1326, enacted at the second regular session of the sixty-fifth general assembly;

  SECTION 13.  Effective date - applicability. This act shall take effect July 1, 2006, and shall apply to offenses committed on or after said date.

  SECTION 14.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

Approved: May 30, 2006

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Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act.

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