HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILLS 246 & 734
47th legislature - STATE OF NEW MEXICO - first session, 2005
AN ACT
RELATING TO IDENTITY THEFT; EXTENDING THE TIME LIMIT FOR PROSECUTION; CLARIFYING CRIMINAL DEFINITION; REQUIRING POLICE REPORTS; PROVIDING REMEDIES TO VICTIMS; INCREASING A PENALTY; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-1-8 NMSA 1978 (being Laws 1963, Chapter 303, Section 1-8, as amended) is amended to read:
"30-1-8. TIME LIMITATIONS FOR COMMENCING PROSECUTION.--[No] A person shall not be prosecuted, tried or punished in any court of this state unless the indictment is found or information or complaint is filed [therefor] within the time as provided:
A. for a second degree felony, within six years from the time the crime was committed;
B. for a third or fourth degree felony, within five years from the time the crime was committed;
C. for a misdemeanor, within two years from the time the crime was committed;
D. for a petty misdemeanor, within one year from the time the crime was committed;
E. for any crime against or violation of the revenue laws of this state or of Section 51-1-38 NMSA 1978, within three years from the time the crime was committed;
F. for an identity theft crime, within five years from the time the crime was discovered;
[F.] G. for any crime not contained in the Criminal Code, or where a limitation is not otherwise provided for, within three years from the time the crime was committed; and
[G.] H. for a capital felony or a first degree violent felony, no limitation period shall exist and prosecution for these crimes may commence at any time after the occurrence of the crime."
Section 2. Section 30-16-24.1 NMSA 1978 (being Laws 2001, Chapter 138, Section 1) is amended to read:
"30-16-24.1. THEFT OF IDENTITY.--
A. Theft of identity consists of:
(1) willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another or with the intent to sell or distribute the information to another for an illegal purpose; or
(2) using personal identifying information of another person or of a false or fictitious person, whether that person is dead or alive, to avoid summons, arrest or prosecution or to impede a criminal investigation.
B. As used in this section:
(1) "personal identifying information" means information that alone or in conjunction with other information identifies a person, including the person's name, address, telephone number, driver's license number, social security number, date of birth, biometric data, place of employment, [maiden name of the person's mother] mother's maiden name, demand deposit account number, checking or savings account number, credit card or debit card number, personal identification number, electronic identification codes, automated or electronic signatures, passwords or any other numbers or information that can be used to access a person's financial resources, obtain identification, act as identification or obtain goods or services; and
(2) "biometric data" means data, such as finger, voice, retina and iris prints, that capture, represent or enable the reproduction of unique physical attributes of a person.
C. Whoever commits theft of identity is guilty of a [misdemeanor] fourth degree felony.
D. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.
E. In a prosecution brought pursuant to this section, the theft of identity shall be considered to have been committed in the county where the person whose identifying information was appropriated resided at the time of the offense, or in which any part of the offense took place, regardless of whether the defendant was ever actually present in the county.
F. A person found guilty of theft of identity shall, in addition to any other punishment, be ordered to make restitution for any financial loss sustained by a person injured as the direct result of the theft of identity. In addition to out-of-pocket costs, restitution may include payment for costs, including attorney fees, incurred by that person in clearing his credit history or credit rating or costs incurred in connection with a civil or administrative proceeding to satisfy a debt, lien, judgment or other obligation of that person arising as a result of the theft of identity.
G. The sentencing court shall issue written findings of fact and may issue orders as are necessary to correct [a public record] public records and errors in credit reports or identifying information that contains false information as a result of the theft of identity."
Section 3. A new section of Chapter 29 NMSA 1978 is enacted to read:
"[NEW MATERIAL] IDENTITY THEFT REPORTS.--When a law enforcement officer interviews an alleged identity theft victim, the law enforcement officer shall make a written report of the information provided by the victim and by witnesses on appropriate forms provided by the attorney general. A copy of the police report shall be filed with the office of the attorney general."
Section 4. [NEW MATERIAL] USE OF FALSE IDENTITY BY A PERSON CHARGED WITH A CRIME--EXPUNGEMENT FROM POLICE AND COURT RECORDS.--
A. A person whose name or other identifying information was used, without consent or authorization, by another person who was charged, arrested or convicted of a crime using such name or identification may, with notice to the prosecutor, file a petition in the criminal action, if pending, or if the criminal action is not pending, then in a court of competent jurisdiction requesting a determination of factual innocence and an expungement of the petitioner's personal identifying information from the record. If the court finds by clear and convincing evidence that the petitioner did not commit the offense with which the petitioner's identity has been associated, the court shall issue an order certifying the petitioner's factual innocence.
B. When a court finds a petitioner factually innocent pursuant to Subsection A of this section, the court shall order that the petitioner's name and other identifying information contained in the court records be removed and the records labeled to show that, due to identity theft, the information is not accurate and does not reflect the perpetrator's true identity. The court shall also order expungement of the arrest information pursuant to Section 29-3-8.1 NMSA 1978.
C. A court may at any time vacate the determination of factual innocence if the petition, or information submitted in support of the petition, contains a material misrepresentation or fraud. If the court vacates the determination, an order shall be entered rescinding any orders made pursuant to this section.
Section 5. [NEW MATERIAL] IDENTITY THEFT PASSPORT--DATABASE.--
A. The attorney general, in cooperation with the department of public safety and the motor vehicle division of the taxation and revenue department, shall issue an identity theft passport to a person who claims to be a victim of identity theft pursuant to Section 30-16-24.1 NMSA 1978, and who provides to the attorney general:
(1) a certified copy of a court order obtained pursuant to Section 4 of this act or a full set of fingerprints;
(2) a driver's license or other government-issued identification or record; and
(3) other information as required by the attorney general.
B. An identity theft passport shall contain a picture of the person to whom it was issued and other information as the attorney general deems appropriate.
C. The attorney general may enter into a memorandum of understanding with the motor vehicle division of the taxation and revenue department for the development and issuance of a secure form of identity theft passport. When an identity theft passport is issued, the motor vehicle division shall note on the person's driver record that an identity theft passport has been issued.
D. An identify theft passport shall be accepted as evidence of identity by law enforcement officers and others who may challenge the person's identity.
E. The attorney general shall maintain a database of identity theft victims who have reported to a law enforcement agency or have been issued an identity theft passport. The attorney general may provide access to the database only to criminal justice agencies. For purposes of identification and authentication, the attorney general may allow access to specific information about a person who has become a victim of identity theft to that person or to that person's authorized representative.
F. The attorney general shall keep on file each application for an identity theft passport and each police report of identity theft submitted by a law enforcement agency.
G. The attorney general shall prepare and make available to local law enforcement agencies and to the general public an information packet that includes information on how to prevent and stop identity theft.
Section 6. [NEW MATERIAL] IDENTITY THEFT--CREDIT REPORTS.--
A. If a person submits a copy of a police report indicating identity theft or an identity theft passport to a consumer reporting agency, the agency shall within thirty days block the reporting of any information that the person alleges appears on his credit report as a result of a violation of Section 30-16-24.1 NMSA 1978.
B. A consumer reporting agency may decline to block or may rescind a block of a person's information if, in the exercise of good faith and judgment, the consumer reporting agency believes that:
(1) the information was blocked due to a misrepresentation of a material fact by the person;
(2) the information was blocked due to fraud, in which the person participated or of which the person had knowledge, and which may for purposes of this section be demonstrated by circumstantial evidence;
(3) the person agrees that portions of the blocked information or all of it were blocked in error;
(4) the person knowingly obtained or should have known that he obtained possession of goods, services or money as a result of the blocked transaction or transactions; or
(5) the consumer reporting agency, in the exercise of good faith and reasonable judgment, has substantial reason based on specific, verifiable facts to doubt the authenticity of the alleged violation of Section 30-16-24.1 NMSA 1978.
C. If blocked information is unblocked pursuant to this section, the person shall be notified in the same manner as consumers are notified of the reinsertion of information pursuant to the federal Fair Credit Reporting Act, 15 U.S.C. 1681i, as amended, or within five business days, whichever is later.
D. A consumer reporting agency shall delete from a person's credit report inquiries for credit reports based upon credit requests that the consumer reporting agency verifies were initiated as a result of a violation of Section 30-16-24.1 NMSA 1978.
E. As used in this section:
(1) "consumer reporting agency" means a person that, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties; and
(2) "consumer report" or "credit report" means a written, oral or other communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living that is used or expected to be used or collected for the purpose of serving as a factor in establishing the consumer's eligibility for credit, insurance, investment, benefit, employment or other purpose as defined by the Fair Credit Reporting Act, 15 U.S.C. 1681a.
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