First Substitute S.B. 75

Senator Gene Davis proposes to substitute the following bill:

1 IDENTITY FRAUD
2 2000 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Gene Davis
5 AN ACT RELATING TO CRIMINAL CODE; AMENDING AUTHORITY OF THE DIVISION
6 OF CONSUMER PROTECTION; MODIFYING DEFINITIONS; AMENDING THE
7 CONSUMER SALES PRACTICES ACT; CREATING THE CRIMINAL OFFENSE OF
8 IDENTITY FRAUD AND SPECIFYING EXCEPTIONS; PROVIDING INVESTIGATIVE AND
9 PROSECUTORIAL POWERS, JURISDICTION, AND PUNISHMENT; AND PROVIDING
10 THAT COURT MAKE APPROPRIATE FINDINGS THAT A PERSON WHOSE IDENTITY OR
11 FINANCIAL TRANSACTION CARD WAS USED WITHOUT CONSENT TO COMMIT A
12 CRIME DID NOT COMMIT THE CRIME.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 13-11-3, as last amended by Chapter 105, Laws of Utah 1987
16 76-6-506.5, as last amended by Chapter 64, Laws of Utah 1998
17 ENACTS:
18 13-11-4.5, Utah Code Annotated 1953
19 76-6-1101, Utah Code Annotated 1953
20 76-6-1102, Utah Code Annotated 1953
21 76-6-1103, Utah Code Annotated 1953
22 76-6-1104, Utah Code Annotated 1953
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 13-11-3 is amended to read:
25 13-11-3. Definitions.

26 As used in this chapter:
27 (1) "Charitable solicitation" means any request directly or indirectly for money, credit,
28 property, financial assistance, or any other thing of value on the plea or representation that it will
29 be used for a charitable purpose. A charitable solicitation may be made in any manner, including:
30 (a) any oral or written request, including a telephone request;
31 (b) the distribution, circulation, or posting of any handbill, written advertisement, or
32 publication;
33 (c) the sale of, offer or attempt to sell, or request of donations for any book, card, chance,
34 coupon, device, magazine, membership, merchandise, subscription, ticket, flower, flag, button,
35 sticker, ribbon, token, trinket, tag, souvenir, candy, or any other article in connection with which
36 any appeal is made for any charitable purpose, or where the name of any charitable organization
37 or movement is used or referred to as an inducement or reason for making any purchase donation,
38 or where, in connection with any sale or donation, any statement is made that the whole or any part
39 of the proceeds of any sale or donation will go to or be donated to any charitable purpose. A
40 charitable solicitation is considered complete when made, whether or not the organization or
41 person making the solicitation receives any contribution or makes any sale.
42 (2) "Consumer transaction" means a sale, lease, assignment, award by chance, or other
43 written or oral transfer or disposition of goods, services, or other property, both tangible and
44 intangible (except securities and insurance), including the use or misuse of personal identifying
45 information of any person in relation to a consumer transaction to, or apparently to, a person for
46 primarily personal, family, or household purposes, or for purposes that relate to a business
47 opportunity that requires both his expenditure of money or property and his personal services on
48 a continuing basis and in which he has not been previously engaged, or a solicitation or offer by
49 a supplier with respect to any of these transfers or dispositions. It includes any offer or solicitation,
50 any agreement, any performance of an agreement with respect to any of these transfers or
51 dispositions, and any charitable solicitation as defined in this section.
52 (3) "Enforcing authority" means the Division of Consumer Protection.
53 (4) "Final judgment" means a judgment, including any supporting opinion, that determines
54 the rights of the parties and concerning which appellate remedies have been exhausted or the time
55 for appeal has expired.
56 (5) "Person" means an individual, corporation, government, governmental subdivision or

57 agency, business trust, estate, trust, partnership, association, cooperative, or any other legal entity.
58 (6) "Supplier" means a seller, lessor, assignor, offeror, broker, or other person who
59 regularly solicits, engages in, or enforces consumer transactions, whether or not he deals directly
60 with the consumer.
61 Section 2. Section 13-11-4.5 is enacted to read:
62 13-11-4.5. Deceptive act or practice by person other than a supplier.
63 (1) A deceptive act or practice by a person other than a supplier in connection with a
64 consumer transaction violates this chapter when it occurs before, during, or after the transaction.
65 (2) Without limiting the scope of Subsection (1), a person other than a supplier commits
66 a deceptive act or practice if the person knowingly or intentionally, with fraudulent intent, obtains
67 or records personal identifying information which would assist in accessing the financial resources
68 or medical information in the name of another person or accesses or attempts to access the
69 financial resources or medical information in the name of another person through the use of
70 personal identifying information as defined in Title, 76, Chapter 6, Part 11, Identity Fraud Act.
71 Section 3. Section 76-6-506.5 is amended to read:
72 76-6-506.5. Financial transaction card offenses -- Classification -- Multiple
73 violations.
74 (1) Any person found guilty of unlawful conduct described in Section 76-6-506.2 ,
75 76-6-506.4 , or 76-6-506.6 shall be punished for:
76 (a) a class B misdemeanor when the value of the property, money, or thing obtained or
77 sought to be obtained is less than $300;
78 (b) a class A misdemeanor when the value of the property, money, or thing obtained or
79 sought to be obtained is or exceeds $300 but is less than $1,000;
80 (c) a third degree felony when the value of the property, money, or thing obtained or
81 sought to be obtained is or exceeds $1,000 but is less than $5,000; and
82 (d) a second degree felony when the value of the property, money, or thing obtained or
83 sought to be obtained is or exceeds $5,000.
84 (2) Multiple violations of Subsection 76-6-506.2 (1), Sections 76-6-506.4 , and 76-6-506.6
85 may be aggregated into a single offense, and the degree of the offense is determined by the total
86 value of all property, money, or things obtained or sought to be obtained through the multiple
87 violations.

88 (3) The court shall make appropriate findings in any prosecution under this section that
89 the card holder did not commit the crime if:
90 (a) another person uses the financial transaction card without the card holder's consent; and
91 (b) that person commits a crime in addition to a financial transaction card offense with the
92 card holder's financial transaction card.
93 Section 4. Section 76-6-1101 is enacted to read:
94 Part 11. Identity Fraud Act
95 76-6-1101. Identity fraud.
96 This part is known as the "Identity Fraud Act."
97 Section 5. Section 76-6-1102 is enacted to read:
98 76-6-1102. Identity fraud crime.
99 (1) For purposes of this part, "personal identifying information" may include:
100 (a) name;
101 (b) address;
102 (c) telephone number;
103 (d) driver's license number;
104 (e) Social Security number;
105 (f) place of employment;
106 (g) employee identification numbers or other personal identification numbers;
107 (h) mother's maiden name;
108 (i) electronic identification numbers;
109 (j) digital signatures or a private key; or
110 (k) any other numbers or information that can be used to access a person's financial
111 resources or medical information in the name of another person without the consent of that person
112 except for numbers or information that can be prosecuted as financial transaction card offenses
113 under Sections 76-6-506 through 76-6-506.4 .
114 (2) A person is guilty of identity fraud when that person knowingly or intentionally:
115 (a) obtains personal identifying information of another person without the authorization
116 of that person; and
117 (b) uses, or attempts to use, that information with fraudulent intent, including to obtain,
118 or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the

119 name of another person without the consent of that person.
120 (3) Identity fraud is:
121 (a) a class B misdemeanor if the value of the credit, goods, services, or any other thing of
122 value is less than $300;
123 (b) a class A misdemeanor if:
124 (i) a value cannot be determined and the personal identifying information has been used
125 to obtain medical information in the name of another person without the consent of that person;
126 or
127 (ii) the value of the credit, goods, services, or any other thing of value is or exceeds $300
128 but is less than $1,000;
129 (c) a third degree felony if the value of the credit, goods, services, or any other thing of
130 value is or exceeds $1,000 but is less than $5,000; or
131 (d) a second degree felony if the value of the credit, goods, services, or any other thing of
132 value is or exceeds $5,000.
133 (4) Multiple violations within a 90-day period may be aggregated into a single offense, and
134 the degree of the offense is determined by the total value of all credit, goods, services, or any other
135 thing of value used, or attempted to be used, through the multiple violations.
136 Section 6. Section 76-6-1103 is enacted to read:
137 76-6-1103. Investigation, jurisdiction, and prima facie evidence of violation.
138 (1) In any criminal proceeding brought pursuant to this section, the crime shall be
139 considered to have been committed in any county in which any part of the identity fraud took
140 place, regardless of whether the defendant was ever actually in that county.
141 (2) The Division of Consumer Protection has responsibility for investigating violations of
142 this part.
143 (3) A criminal conviction under this part is prima facie evidence of a violation of Section
144 13-11-4 , of the Utah Consumer Sales Practices Act.
145 (4) Any violation of this part constitutes a violation of Section 13-11-4 , of the Utah
146 Consumer Sales Practices Act.
147 Section 7. Section 76-6-1104 is enacted to read:
148 76-6-1104. Court records.
149 In any case in which a person commits identify fraud and uses the personal identifying

150 information obtained to commit a crime in addition to the identity fraud, the court shall make
151 appropriate findings in any prosecution of such a crime that the person whose identity was falsely
152 used to commit the crime did not commit the crime.