House Bill 04-1122

LLS NO. 04-0014.03 Michael Dohr HOUSE BILL 04-1122

Crane, Hefley, Brophy, Smith, Cloer, Stengel, Boyd, Briggs, Carroll, Clapp, Decker, Harvey, Jahn, Judd, King, Lundberg, Marshall, May M., McFadyen, McGihon, Mitchell, Rhodes, Romanoff, Rose, Schultheis, Spence, Welker, and Witwer

A BILL FOR AN ACT CONCERNING IDENTITY THEFT, AND MAKING AN APPROPRIATION THEREFOR.

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Permits an alleged victim of identity theft to request an investigation of the alleged identity theft. Allows an alleged victim of identity theft to motion the court for an expedited finding of factual innocence. Permits the court to order the removal of the victim's name and personal identification information from public databases after a finding of factual innocence. Creates the crime of identity theft by prohibiting, during the commission of criminal impersonation, using or obtaining the personal identifying information of another. Makes identity theft a class 4 felony. Expands criminal possession of a forgery device to include possession with the intent to falsely complete, alter, or utter certain written instruments. Adds identity theft to the list of crimes under the "Colorado Organized Crime Act". Includes identity theft in the list of crimes whose statute of limitations begins to run upon the discovery of the act. Adds a certified court order of factual innocence to the list of documents that may be used to fix a consumer credit report. Makes a 5-year statutory appropriation.

SECTION 1. Part 4 of article 4 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

18-4-419. Identity theft - victim's protection. (1) A PERSON WHO KNOWS OR REASONABLY SUSPECTS THAT HIS OR HER PERSONAL IDENTIFYING INFORMATION, AS DEFINED IN THIS SECTION, HAS BEEN UNLAWFULLY USED BY ANOTHER PERSON MAY INITIATE A LAW ENFORCEMENT INVESTIGATION BY CONTACTING THE LOCAL LAW ENFORCEMENT AGENCY THAT HAS JURISDICTION OVER HIS OR HER RESIDENCE, OR WHERE ANY IDENTITY THEFT CRIME WAS COMMITTED, WHICH SHALL TAKE A POLICE REPORT OF THE MATTER, PROVIDE THE COMPLAINANT WITH A COPY OF THAT REPORT, AND BEGIN AN INVESTIGATION OF THE FACTS. IF THE SUSPECTED CRIME WAS COMMITTED IN A DIFFERENT JURISDICTION, THE LOCAL LAW ENFORCEMENT AGENCY MAY REFER THE MATTER TO THE LOCAL LAW ENFORCEMENT AGENCY WHERE THE SUSPECTED CRIME WAS COMMITTED FOR INVESTIGATION OF THE FACTS.
(2) "PERSONAL IDENTIFYING INFORMATION" MEANS ANY INFORMATION THAT MAY BE USED, ALONE OR IN CONJUNCTION WITH ANY OTHER INFORMATION, TO IDENTIFY A SPECIFIC INDIVIDUAL, INCLUDING BUT NOT LIMITED TO NAME; DATE OF BIRTH; SOCIAL SECURITY NUMBER; PERSONAL IDENTIFICATION NUMBER; PASSWORD; PASS CODE; OFFICIAL STATE-ISSUED OR GOVERNMENT-ISSUED DRIVER'S LICENSE OR IDENTIFICATION CARD NUMBER; GOVERNMENT PASSPORT NUMBER; BIOMETRIC DATA; EMPLOYER, STUDENT, OR MILITARY IDENTIFICATION NUMBER; OR FINANCIAL TRANSACTION DEVICE AS DEFINED IN SECTION 18-5-701 (3).
(3) A PERSON WHOSE PERSONAL IDENTIFYING INFORMATION HAS BEEN MISTAKENLY ASSOCIATED WITH AN ARREST, SUMMONS, SUMMONS AND COMPLAINT, FELONY COMPLAINT, INFORMATION, INDICTMENT, OR CONVICTION IS THE VICTIM OF IDENTITY THEFT FOR THE PURPOSES OF THIS SECTION. IN A CASE WHERE NO CRIMINAL CHARGE IS PENDING, A VICTIM OF IDENTITY THEFT MAY, WITH NOTICE TO THE PROSECUTOR, PETITION THE COURT WITH JURISDICTION OVER THE ARREST, SUMMONS, SUMMONS AND COMPLAINT, FELONY COMPLAINT, INFORMATION, INDICTMENT, OR CONVICTION FOR A JUDICIAL DETERMINATION OF HIS OR HER FACTUAL INNOCENCE OR THE COURT ON ITS OWN MOTION MAY MAKE SUCH A DETERMINATION IN THE CASE. IF ANY CRIMINAL CHARGES ARE STILL PENDING, THE PROSECUTING ATTORNEY MAY REQUEST THE COURT TO MAKE SUCH A DETERMINATION. A JUDICIAL DETERMINATION OF FACTUAL INNOCENCE MADE PURSUANT TO THIS SECTION MAY BE DETERMINED, WITH OR WITHOUT A HEARING, UPON DECLARATIONS, AFFIDAVITS, POLICE REPORTS, OR OTHER MATERIAL, RELEVANT, AND RELIABLE INFORMATION SUBMITTED BY THE PARTIES OR ORDERED TO BE PART OF THE RECORD BY THE COURT. WHERE THE COURT DETERMINES THAT THERE IS NO REASONABLE CAUSE TO BELIEVE THAT THE VICTIM COMMITTED THE OFFENSE FOR WHICH THE VICTIM'S IDENTITY HAS BEEN MISTAKENLY ASSOCIATED WITH AN ARREST, SUMMONS, SUMMONS AND COMPLAINT, FELONY COMPLAINT, INFORMATION, INDICTMENT, OR CONVICTION, THE COURT SHALL FIND THE VICTIM FACTUALLY INNOCENT OF THAT OFFENSE. IF THE VICTIM IS FOUND FACTUALLY INNOCENT, THE COURT SHALL ISSUE AN ORDER CERTIFYING THIS DETERMINATION. 
(4) AFTER THE COURT HAS ISSUED A DETERMINATION OF FACTUAL INNOCENCE PURSUANT TO THIS SECTION, THE COURT MAY ORDER THE NAME AND ASSOCIATED PERSONAL IDENTIFYING INFORMATION CONTAINED IN COURT RECORDS, FILES, OR A CRIMINAL JUSTICE RECORD TO BE LABELED TO SHOW THAT THE DATA IS INACCURATE AND DOES NOT REFLECT THE PERPETRATOR'S IDENTITY BECAUSE THE VICTIM OF IDENTITY THEFT WAS IMPERSONATED. 
(5) A COURT THAT HAS ISSUED A DETERMINATION OF FACTUAL INNOCENCE PURSUANT TO THIS SECTION MAY AT ANY TIME VACATE THAT DETERMINATION, IF THE PETITION, OR ANY INFORMATION SUBMITTED IN SUPPORT OF THE PETITION, IS FOUND TO CONTAIN ANY MATERIAL MISREPRESENTATION OR FRAUD. IF THE COURT VACATES A DETERMINATION OF FACTUAL INNOCENCE, THE COURT SHALL ISSUE AN ORDER RESCINDING ANY ORDERS MADE PURSUANT TO SUBSECTION (4) OF THIS SECTION.
(6) THE JUDICIAL DEPARTMENT SHALL DEVELOP FORMS FOR USE IN ISSUING ORDERS PURSUANT TO THIS SECTION.

SECTION 2. 18-5-113, Colorado Revised Statutes, is amended to read:

18-5-113. Criminal impersonation - identity theft. (1) A person commits criminal impersonation if he OR SHE knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he OR SHE:
(a) Marries, or pretends to marry, or to sustain the marriage relation toward another without the connivance of the latter; or
(b) Becomes bail or surety for a party in an action or proceeding, civil or criminal, before a court or officer authorized to take the bail or surety; or
(c) Confesses a judgment, or subscribes, verifies, publishes, acknowledges, or proves a written instrument which by law may be recorded, with the intent that the same may be delivered as true; or 
(d) Does an act which if done by the person falsely impersonated, might subject such person to an action or special proceeding, civil or criminal, or to liability, charge, forfeiture, or penalty; or 
(e) Does any other act with intent to unlawfully gain a benefit for himself OR HERSELF or another or to injure or defraud another; OR 
(f) APPLIES FOR, OR COMPLETES, ANY GOVERNMENT-ISSUED DOCUMENT.
(2) Criminal impersonation is a class 6 felony.
(3) (a) A PERSON COMMITS IDENTITY THEFT IF:
(I) HE OR SHE UNLAWFULLY OBTAINS, OR, IN THE COMMISSION OF CRIMINAL IMPERSONATION, HE OR SHE USES OR OBTAINS THE PERSONAL IDENTIFYING INFORMATION OF ANOTHER LIVING PERSON; OR 
(II) A PERSON WHO IS IN A FIDUCIARY RELATIONSHIP RELATIVE TO ANOTHER PERSON OBTAINS THE PERSONAL IDENTIFYING INFORMATION OF THE OTHER PERSON AND KNOWINGLY PROVIDES THE PERSONAL IDENTIFYING INFORMATION OF THAT PERSON TO ANOTHER PERSON FOR THE PURPOSE OF COMMITTING IDENTITY THEFT, AS DESCRIBED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH (a).
(b) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (5) OF THIS SECTION, IDENTITY THEFT IS A CLASS 4 FELONY. 
(4) "PERSONAL IDENTIFYING INFORMATION" MEANS ANY INFORMATION THAT MAY BE USED, ALONE OR IN CONJUNCTION WITH ANY OTHER INFORMATION, TO IDENTIFY A SPECIFIC INDIVIDUAL, INCLUDING BUT NOT LIMITED TO NAME; DATE OF BIRTH; SOCIAL SECURITY NUMBER; PERSONAL IDENTIFICATION NUMBER; PASSWORD; PASS CODE; OFFICIAL STATE-ISSUED OR GOVERNMENT-ISSUED DRIVER'S LICENSE OR IDENTIFICATION CARD NUMBER; GOVERNMENT PASSPORT NUMBER; BIOMETRIC DATA; EMPLOYER, STUDENT, OR MILITARY IDENTIFICATION NUMBER; OR FINANCIAL TRANSACTION DEVICE AS DEFINED IN SECTION 18-5-701 (3).
(5) (a) IDENTITY THEFT IS A CLASS 3 FELONY IF COMMITTED SUBSEQUENT TO A FELONY CONVICTION FOR:
(I) FORGERY, AS DESCRIBED IN SECTION 18-5-102;
(II) CRIMINAL POSSESSION OF A FORGERY DEVICE, AS DESCRIBED IN SECTION 18-5-109;
(III) CRIMINAL IMPERSONATION OR IDENTITY THEFT, AS DESCRIBED IN THIS SECTION;
(IV) UNAUTHORIZED USE OF A FINANCIAL TRANSACTION DEVICE, AS DESCRIBED IN SECTION 18-5-702; OR
(V) AN ATTEMPT, CONSPIRACY, OR SOLICITATION TO COMMIT AN OFFENSE DESCRIBED IN THIS PARAGRAPH (a).
(b) "FELONY CONVICTION" INCLUDES A CONVICTION FOR AN OFFENSE COMMITTED IN ANY OTHER STATE, THE UNITED STATES, OR ANY TERRITORY SUBJECT TO THE JURISDICTION OF THE UNITED STATES, WHICH WOULD CONSTITUTE A FELONY OFFENSE DESCRIBED IN THIS SUBSECTION (5) IF COMMITTED IN THIS STATE.

SECTION 3. 18-17-103 (5) (b) (IV), Colorado Revised Statutes,

is amended to read:

18-17-103. Definitions. As used in this article, unless the context

otherwise requires:

(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

- IDENTITY THEFT), and 18-5-114 (offering a false document for

recording), AND 18-5-702 (UNAUTHORIZED USE OF A FINANCIAL

TRANSACTION DEVICE);

SECTION 4. 18-5-109 (1), Colorado Revised Statutes, is

amended BY THE ADDITION OF A NEW PARAGRAPH to read:

18-5-109. Criminal possession of forgery devices. (1) A person

commits criminal possession of forgery devices when:

(e) SUCH PERSON POSSESSES A DEED, WILL, CODICIL, CONTRACT,

ASSIGNMENT, COMMERCIAL INSTRUMENT, PROMISSORY NOTE, CHECK, OR

OTHER INSTRUMENT WHICH DOES OR MAY EVIDENCE, CREATE, TRANSFER,

TERMINATE, OR OTHERWISE AFFECT A LEGAL RIGHT, INTEREST,

OBLIGATION, OR STATUS, WITH THE INTENT TO FALSELY COMPLETE, ALTER,

OR UTTER THE WRITTEN INSTRUMENT IN ORDER TO DEFRAUD.

SECTION 5. 16-5-401 (4.5) (h), Colorado Revised Statutes, is

amended to read:

juvenile delinquency proceedings. (4.5) The period within which a

prosecution must be commenced shall begin to run upon discovery of the

criminal act or the delinquent act for:

(h) Criminal impersonation AND IDENTITY THEFT, pursuant to

section 18-5-113, C.R.S.;

SECTION 6. 12-14.3-106.5 (1) (a) , Colorado Revised Statutes,

is amended to read:

12-14.3-106.5. Consumer report information block. (1) (a) A

consumer reporting agency shall, within thirty days after the receipt of a

police report or order pursuant to this paragraph (a), permanently block

the reporting of any information that a consumer identifies on his or her

consumer report as being subject to either a police report or a court order

referenced in subparagraph (I), or (II), OR (III) of this paragraph (a) if the

consumer provides a consumer reporting agency with proof of the

consumer's identification and a copy of:

(I) A police report that alleges that a person other than the

consumer obtained or recorded, by means of fraud, theft, or other

violation of the "Colorado Criminal Code", personal identifying

information of the consumer without authorization from the consumer

and that the person used the information to obtain, or attempt to obtain,

credit, goods, services, or moneys in the name of the consumer without

the consumer's consent; or

(II) A certified court order issued pursuant to section 18-1.3-603

(7), C.R.S.; OR

(III) A CERTIFIED COURT ORDER OF FACTUAL INNOCENCE ISSUED

PURSUANT TO SECTION 18-4-419, C.R.S.

SECTION 7. Part 1 of article 1 of title 17, Colorado Revised

Statutes, is amended BY THE ADDITION OF A NEW SECTION to

read:

(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. 04-___, ENACTED AT THE SECOND REGULAR

SESSION OF THE SIXTY-FOURTH GENERAL ASSEMBLY:

(a) FOR THE FISCAL YEAR BEGINNING JULY 1, 2004, 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 _______ DOLLARS ($ ).

(b) (I) FOR THE FISCAL YEAR BEGINNING JULY 1, 2005, 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 ______ DOLLARS ($ ).

(II) FOR THE FISCAL YEAR BEGINNING JULY 1, 2005, 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 _____ DOLLARS ($ ).

(c) (I) 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 ________ DOLLARS ($ ).

(II) FOR THE FISCAL YEAR BEGINNING JULY 1, 2006, 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 _____ DOLLARS ($ ).

(d) (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 ______ DOLLARS ($ ).

(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 _____ DOLLARS ($ ).

(e) (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 ______ DOLLARS ($ ).

(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 _____ DOLLARS ($ ).

SECTION 8. 24-75-302 (2) (q), (2) (r), (2) (s), and (2) (t),

Colorado Revised Statutes, as they will become effective July 1, 2004,

are amended, and the said 24-75-302 (2), as it will become effective July

1, 2004, is further amended BY THE ADDITION OF A NEW

PARAGRAPH, to read:

- 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:

(q) On July 1, 2004, one hundred million dollars, plus two

hundred thirty-three thousand eight hundred seventy-two dollars pursuant

to H.B. 00-1201, enacted at the second regular session of the sixty-second

general assembly; plus seventy-nine thousand eight hundred eighty-seven

dollars pursuant to H.B. 01-1242, enacted at the first regular session of

the sixty-third general assembly; plus four hundred eighty-six thousand

two hundred sixty-nine dollars pursuant to S.B. 02-050, enacted at the

second regular session of the sixty-third general assembly; plus nine

hundred seventy-two thousand five hundred thirty-eight dollars pursuant

to H.B. 02-1038, enacted at the second regular session of the sixty-third

general assembly; plus four thousand twelve dollars pursuant to section

3 of H.B. 02S-1006 enacted at the third extraordinary session of the

sixty-third 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 _____ DOLLARS

PURSUANT TO H.B. 04-____, ENACTED AT THE SECOND REGULAR SESSION

OF THE SIXTY-FOURTH GENERAL ASSEMBLY;

(r) On July 1, 2005, one hundred million dollars; plus four

hundred forty-nine thousand seven hundred ninety-nine dollars pursuant

to S.B.02-050, enacted at the second regular session of the sixty-third

general assembly; plus one hundred thirty-eight thousand nine hundred

thirty-four 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. 03-1317, enacted at the

first regular session of the sixty-fourth general assembly; PLUS _____

DOLLARS PURSUANT TO H.B. 04-____, ENACTED AT THE SECOND REGULAR

SESSION OF THE SIXTY-FOURTH GENERAL ASSEMBLY;

(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 _____

DOLLARS PURSUANT TO H.B. 04-____, ENACTED AT THE SECOND REGULAR

SESSION OF THE SIXTY-FOURTH 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 _____ DOLLARS

PURSUANT TO H.B. 04-____, ENACTED AT THE SECOND REGULAR SESSION

OF THE SIXTY-FOURTH GENERAL ASSEMBLY;

(u) ON JULY 1, 2008, __________ DOLLARS PURSUANT TO H.B.

04-____, ENACTED AT THE SECOND REGULAR SESSION OF THE

SIXTY-FOURTH GENERAL ASSEMBLY.

SECTION 9. Effective date - applicability. This act shall take

effect July 1, 2004, and shall apply to offenses committed on or after said

date.

SECTION 10. 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.

Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.

Capital letters indicate new material to be added to existing statute.

Dashes through the words indicate deletions from existing statute.