Representative Patrice M. Arent proposes the following substitute bill:


1     
IDENTITY THEFT PARAPHERNALIA PROVISIONS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Patrice M. Arent

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of the Utah Criminal Code relating to forgery and identity
10     fraud.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     modifies the elements of a financial transaction card offense;
15          ▸     increases the penalty for unlawful possession of the financial transaction card
16     information of a certain number of individuals ;
17          ▸     increases the penalty for unlawful possession of the identifying documents of a
18     certain number of individuals ; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          76-6-502, as last amended by Laws of Utah 2001, Chapter 56
27          76-6-506.3, as last amended by Laws of Utah 2009, Chapter 166
28          76-6-1105, as enacted by Laws of Utah 2004, Chapter 227
29          78B-9-104, as last amended by Laws of Utah 2017, Chapter 447
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 76-6-502 is amended to read:
33          76-6-502. Possession of forged writing or device for writing -- Penalty.
34          (1) As used in this section, "device" means any equipment, mechanism, material or
35     program.
36          (2) [Any person] An individual who, with intent to defraud, knowingly possesses [any
37     writing that is a forgery] a writing, as defined in Section 76-6-501, that is a forgery under
38     Section 76-6-501, or who with intent to defraud knowingly possesses [any] a device for making
39     [any writing that is a forgery] a writing, as defined in Section 76-6-501, that is a forgery under
40     Section 76-6-501, is guilty of a third degree felony.
41          Section 2. Section 76-6-506.3 is amended to read:
42          76-6-506.3. Financial transaction card offenses -- Unlawful acquisition,
43     possession, or transfer of card.
44          [Any person] (1) Under circumstances that do not constitute a violation of Subsection
45     (2), an individual is guilty of a third degree felony who:
46          [(1)] (a) acquires a financial transaction card from another without the consent of the
47     card holder or the issuer;
48          [(2)] (b) receives a financial transaction card with intent to use [it] the financial
49     transaction card in violation of Section 76-6-506.2;
50          [(3)] (c) sells or transfers a financial transaction card to [another] a person with [the]
51     knowledge that [it] the financial transaction card will be used in violation of Section
52     76-6-506.2;
53          [(4) (a)] (d) (i) acquires a financial transaction card that the [person] individual knows
54     was lost, mislaid, stolen, or delivered under a mistake as to the identity or address of the card
55     holder; and
56          [(b) (i)] (ii) (A) retains possession with intent to use [it] the financial transaction card
57     in violation of Section 76-6-506.2; or
58          [(ii)] (B) sells or transfers [a] the financial transaction card to [another] a person with
59     [the] knowledge that [it] the financial transaction card will be used in violation of Section
60     76-6-506.2; or
61          [(5)] (e) possesses, sells, or transfers any information necessary for the use of a
62     financial transaction card, including the credit number of the card, the expiration date of the
63     card, or the personal identification code related to the card:
64          [(a) (i)] (i) (A) without the consent of the card holder or the issuer; or
65          [(ii)] (B) with [the] knowledge that the information has been acquired without consent
66     of the card holder or the issuer; and
67          [(b)] (ii) with intent to use the information in violation of Section 76-6-506.2.
68          (2) An individual is guilty of a second degree felony who possesses, sells, or transfers
69     any information necessary for the use of 100 or more financial transaction cards, including the
70     credit number of a card, the expiration date of a card, or the personal identification code related
71     to a card:
72          (a) with intent to use the information in violation of Section 76-6-506.2; or
73          (b) with knowledge that the information will be used by another in violation of Section
74     76-6-506.2.
75          Section 3. Section 76-6-1105 is amended to read:
76          76-6-1105. Unlawful possession of another's identification documents.
77          (1) [For purposes of] As used in this section ["identifying]:
78          (a) "Identifying document" means:
79          [(a)] (i) a government issued [identifying] document commonly used for identification;
80          [(b)] (ii) a vehicle registration certificate; or
81          [(c)] (iii) any other document, image, data file, or medium containing personal
82     identifying information as defined in Subsections 76-6-1102(1)[(d)](b) through [(k)] (m).
83          (b) "Identifying document" includes:
84          (i) a counterfeit identifying document; or
85          (ii) a document containing personal identifying information of a deceased individual.
86          (c) "Possess" means to have physical control or electronic access.
87          (2) (a) [Notwithstanding the provisions of Subsection 76-6-1102(3), a person] Under
88     circumstances that do not constitute a violation of Section 76-6-1102 or Section 76-6-502, an
89     individual is guilty of a class A misdemeanor if [he] the individual:
90          (i) obtains or possesses an identifying document:
91          (A) with knowledge that [he] the individual is not entitled to obtain or possess the
92     identifying document; or
93          (B) with intent to deceive or defraud; or
94          (ii) assists another person in obtaining or possessing an identifying document:
95          (A) with knowledge that the person is not entitled to obtain or possess the identifying
96     document[.]; or
97          (B) with knowledge that the person intends to use the identifying document to deceive
98     or defraud.
99          (b) [A person] Under circumstances that do not constitute a violation of Section
100     76-6-1102, an individual is guilty of a third degree felony if [he] the individual:
101          (i) obtains or possesses [multiple] identifying documents of more than two, but fewer
102     than 100, individuals:
103          (A) with knowledge that [he] the individual is not entitled to obtain or possess the
104     [multiple] identifying documents; or
105          (B) with intent to deceive or defraud; or
106          (ii) assists another person in obtaining or possessing [multiple] identifying documents
107     of more than two, but fewer than 100, individuals:
108          (A) with knowledge that the person is not entitled to obtain or possess the multiple
109     identifying documents[.]; or
110          [(c) For purposes of Subsection (2)(b), "multiple identifying documents" means
111     identifying documents of two or more people.]
112          (B) with knowledge that the person intends to use the identifying documents to deceive
113     or defraud.
114          (c) Under circumstances that do not constitute a violation of Section 76-6-1102, an
115     individual is guilty of a second degree felony if the individual:
116          (i) obtains or possesses identifying documents of 100 or more individuals:
117          (A) with knowledge that the individual is not entitled to obtain or possess the
118     identifying documents; or
119          (B) with intent to deceive or defraud; or
120          (ii) assists another person in obtaining or possessing identifying documents of 100 or
121     more individuals:
122          (A) with knowledge that the person is not entitled to obtain or possess the identifying
123     documents; or
124          (B) with knowledge that the person intends to use the identifying documents to deceive
125     or defraud.
126          Section 4. Section 78B-9-104 is amended to read:
127          78B-9-104. Grounds for relief -- Retroactivity of rule.
128          (1) Unless precluded by Section 78B-9-106 or 78B-9-107, a person who has been
129     convicted and sentenced for a criminal offense may file an action in the district court of
130     original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence
131     upon the following grounds:
132          (a) the conviction was obtained or the sentence was imposed in violation of the United
133     States Constitution or Utah Constitution;
134          (b) the conviction was obtained or the sentence was imposed under a statute that is in
135     violation of the United States Constitution or Utah Constitution, or the conduct for which the
136     petitioner was prosecuted is constitutionally protected;
137          (c) the sentence was imposed or probation was revoked in violation of the controlling
138     statutory provisions;
139          (d) the petitioner had ineffective assistance of counsel in violation of the United States
140     Constitution or Utah Constitution;
141          (e) newly discovered material evidence exists that requires the court to vacate the
142     conviction or sentence, because:
143          (i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
144     trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
145     post-conviction proceeding, and the evidence could not have been discovered through the
146     exercise of reasonable diligence;
147          (ii) the material evidence is not merely cumulative of evidence that was known;
148          (iii) the material evidence is not merely impeachment evidence; and
149          (iv) viewed with all the other evidence, the newly discovered material evidence
150     demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
151     offense or subject to the sentence received; or
152          (f) the petitioner can prove entitlement to relief under a rule announced by the United
153     States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction
154     and sentence became final on direct appeal, and that:
155          (i) the rule was dictated by precedent existing at the time the petitioner's conviction or
156     sentence became final; or
157          (ii) the rule decriminalizes the conduct that comprises the elements of the crime for
158     which the petitioner was convicted.
159          (g) the petitioner committed any of the following offenses while subject to force, fraud,
160     or coercion, as defined in Section 76-5-308:
161          (i) Section 58-37-8, possession of a controlled substance;
162          (ii) Section 76-10-1304, aiding prostitution;
163          (iii) Section 76-6-206, criminal trespass;
164          (iv) Section 76-6-413, theft;
165          (v) Section 76-6-502, possession of forged writing or device for writing;
166          (vi) Sections 76-6-602 through 76-6-608, retail theft;
167          (vii) Subsection 76-6-1105(2)(a)(i)(A), unlawful possession of another's identification
168     document;
169          (viii) Section 76-9-702, lewdness;
170          (ix) Section 76-10-1302, prostitution; or
171          (x) Section 76-10-1313, sexual solicitation.
172          (2) The court may not grant relief from a conviction or sentence unless the petitioner
173     establishes that there would be a reasonable likelihood of a more favorable outcome in light of
174     the facts proved in the post-conviction proceeding, viewed with the evidence and facts
175     introduced at trial or during sentencing.
176          (3) The court may not grant relief from a conviction based on a claim that the petitioner
177     is innocent of the crime for which convicted except as provided in Title 78B, Chapter 9, Part 3,
178     Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence.
179     Claims under Part 3, Postconviction Testing of DNA or Part 4, Postconviction Determination
180     of Factual Innocence of this chapter may not be filed as part of a petition under this part, but
181     shall be filed separately and in conformity with the provisions of Part 3, Postconviction Testing
182     of DNA or Part 4, Postconviction Determination of Factual Innocence.