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F I S C A L I M P A C T R E P O R T

SPONSOR

Anderson

ORIGINAL DATE

LAST UPDATED

2/1/07

HB

540

SHORT TITLE

Identity Theft Police Reports

SB

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Conflicts with,

HB 480.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Corrections Department

SUMMARY

Synopsis of Bill

Section 1:

amends Section 30-1-8 NMSA 1978 to specify that the statute of limitations

for prosecuting an identity theft crime is 5 years from the time the crime was discovered.

Section 2:

amends Section 30-16-24.1 NMSA 1978 to expand the elements of the crime

of theft of identity to include willfully obtaining, recording or transferring personal iden-

tifying information of another with the intent to sell or distribute the information to an-

other for an illegal purpose, and using the identifying information of another or of a ficti-

tious person, dead or alive, to avoid summons, arrest or prosecution or to impede a crimi-

nal investigation. The Act adds to the definition of “personal identifying information" to

track with technological advancements. The Act provides that a sentencing court may is-

sue orders as are necessary to correct errors in credit reports or identifying information, in

addition to public records.

House Bill 540 – Page

2

Section 3

: provides that a law enforcement officer who interviews an alleged identity

theft victim shall make a written report of the information provided by the victim and by

witnesses on appropriate forms provided by the attorney general (AG). The Act requires

that a copy of the police report be filed with the AG.

Section 4:

provides that if a person claiming to be a victim of identity theft provides

specified documents to the AG, the AG, in cooperation with the Department of Public

Safety (DPS), shall issue that person an identity theft passport, which passport shall state

the basis for its issuance. The Act provides that the passport shall be accepted by law en-

forcement officers and others challenging the holder’s identity. The Act further provides

that upon issuance, the AG shall transmit record of such to the motor vehicle department,

which shall note on the person’s driver record that a passport has been issued. Under the

Act, the AG is required to maintain a database of identity theft victims who have reported

to a law enforcement agency or have been issued an identity theft passport. The AG may

provide access to the database to criminal justice agencies and to identity theft passport

holders and their representatives. The Act also requires that the AG prepare and distrib-

ute to local law enforcement agencies and to the general public an information packet re-

garding how to prevent identity theft.

Section 5:

provides that a person, whose identity was used, without consent or authoriza-

tion, by another person who was charged or arrested using such identity, may file a peti-

tion in district court requesting a determination of factual innocence. The Act further

provides that if a court finds that there is no reasonable cause to believe that the person

committed the offense, the court shall issue an order certifying the person’s factual inno-

cence. The Act also provides that if a court finds the person factually innocent, the court

shall order: 1) that the person’s identifying information contained in the court records is

removed; and 2) that the arrest information is expunged pursuant to Section 29-3-8.1

NMSA 1978. Additionally, under the Act, a court may at any time vacate the determina-

tion of factual innocence if the petition, or information submitted in support of the peti-

tion, contains a material misrepresentation or fraud.

Section 6:

The effective date of the Act is July 1, 2007.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary would be proportional to the

enforcement of this law and commenced prosecutions. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

The expansion of this felony offense could increase the Corrections Department’s costs by the

minimal addition to the inmate population and probation/parole caseloads. However, the finan-

cial impact would be minimal to slight based upon the anticipated low number of convictions for

these offenses. This may be offset some by a minimal amount of revenue generated by the pro-

bation/parolee supervision fees paid during the probation/parole period.

House Bill 540 – Page

3

SIGNIFICANT ISSUES

There is no definition of “identity theft passport" and there is only limited direction to the AG

and the DPS as to what information such a document shall contain.

While the Act provides that a court may vacate a determination of factual innocence at any time

– Section 5.C – there is no guidance as to who may challenge the court’s determination after pe-

tition proceedings have concluded, nor the procedure to be followed by a person presenting a

challenge.

PERFORMANCE IMPLICATIONS

The courts are participating in performance-based budgeting. This bill may have an impact on

the measures of the district courts in the following areas:

•

Cases disposed of as a percent of cases filed

•

Percent change in case filings by case type

ADMINISTRATIVE IMPLICATIONS

HB 540 provides that a person, whose identity was used, without consent or authorization, by

another person who was charged or arrested using such identity, may file a petition in district

court requesting a determination of factual innocence. This may increase caseloads in the district

court, where additional resources will be required to handle the increase.

CONFLICT,

HB480 (STATUTE OF LIMITATIONS FOR CERTAIN CRIMES) Sponsored by Rep Rehm

TECHNICAL ISSUES

Section 4, relating to the new “identity theft passport" contains a subsection directing the AG to

prepare and distribute information on how to prevent identity theft. (Subsection G.) This may not

be appropriate placement of this subsection.

ALTERNATIVES

Possible Amendments:

Section 5.C.: Provide guidance as to who may request a vacation of the determination of factual

innocence, and the procedure for doing so.

Define “identity theft passport" and provide additional direction to the AG and the DPS as to

what information such a document shall contain.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Status Quo

CS/mt