BILL REQ. #:  Z-0667.1 

Prefiled 01/11/08. Read first time 01/14/08.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to identity theft; amending RCW 9.35.001, 9.35.020, and 46.20.0921; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature enacts this act to expressly reject the interpretation of State v. Leyda, 157 Wn.2d 335, 138 P.3d 610 (2006), which holds that the unit of prosecution in identity theft is any one act of either knowingly obtaining, possessing, using, or transferring a single piece of another's identification or financial information, including all subsequent proscribed conduct with that single piece of identification or financial information, when the acts are taken with the requisite intent. The legislature finds that proportionality of punishment requires the need for charging and punishing for obtaining, using, possessing, or transferring any individual person's identification or financial information, with the requisite intent. The legislature specifically intends that each individual who obtains, possesses, uses, or transfers any individual person's identification or financial information, with the requisite intent, be classified separately and punished separately as provided in chapter 9.94A RCW.

Sec. 2   RCW 9.35.001 and 1999 c 368 s 1 are each amended to read as follows:
     The legislature finds that means of identification and financial information ((is)) are personal and sensitive information such that if unlawfully obtained, possessed, used, or transferred by others may ((do)) result in significant harm to a person's privacy, financial security, and other interests. The legislature finds that unscrupulous persons find ever more clever ways, including identity theft, to improperly obtain ((and)), possess, use, and transfer another person's means of identification or financial information. The legislature intends to penalize ((unscrupulous people)) for each unlawful act of improperly obtaining, possessing, using, or transferring means of identification or financial information of an individual person. The unit of prosecution for identity theft by use of a means of identification or financial information is each individual unlawful use of any one person's means of identification or financial information. Unlawfully obtaining, possessing, or transferring each means of identification or financial information of any individual person, with the requisite intent, is a separate unit of prosecution for each victim and for each act of obtaining, possessing, or transferring of the individual person's means of identification or financial information.

Sec. 3   RCW 9.35.020 and 2004 c 273 s 2 are each amended to read as follows:
     (1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
     (2) Violation of this section is identity theft in the first degree when the accused, a conspirator, or an accomplice ((uses the victim's means of identification or financial information)) violates subsection (1) of this section and:
     (a) Obtains ((an aggregate total of)) credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value ((shall constitute identity theft in the first degree)); or
     (b) Acts with intent to transfer the means of identification or financial information to another person; or
     (c) Transfers the means of identification or financial information to a third person; or
     (d) Manufactures or intends to manufacture any false means of identification, financial documents, accounts, or records for transfer to or use by any other person; or
     (e) Obtains, possesses, transfers, or uses the means of identification or financial information through use of the actor's position as a "trusted person" as defined in RCW 9A.68.060; or
     (f) Violates RCW 46.20.0921(3)(a); or
     (g) During a contact with a law enforcement officer, uses the means of identification or financial information as a form of identification. Identity theft in the first degree is a class B felony punishable according to chapter 9A.20 RCW.
     (3) ((Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree.)) A person is guilty of identity theft in the second degree when he or she violates subsection (1) of this section under circumstances not amounting to identity theft in the first degree. Identity theft in the second degree is a class C felony punishable according to chapter 9A.20 RCW.
     (4) Except as provided in subsection (5) of this section, each crime prosecuted under this section shall be punished separately under chapter 9.94A RCW, unless it is the same criminal conduct as any other crime, under RCW 9.94A.589.
     (5) Whenever any series of transactions involving a single person's means of identification or financial information which constitute identity theft would, when considered separately, constitute identity theft in the second degree because of value, and the series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all of the transactions shall be the value considered in determining the degree of identity theft involved.
     (6) Every person who, in the commission of identity theft, shall commit any other crime may be punished therefor as well as for the identity theft, and may be prosecuted for each crime separately.
     (7) A person who violates this section is liable for civil damages of one thousand dollars or actual damages, whichever is greater, including costs to repair the victim's credit record, and reasonable attorneys' fees as determined by the court.
     (((5))) (8) In a proceeding under this section, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality.
     (((6))) (9) The provisions of this section do not apply to any person who obtains another person's driver's license or other form of identification for the sole purpose of misrepresenting his or her age.
     (((7))) (10) In a proceeding under this section in which a person's means of identification or financial information was used without that person's authorization, and when there has been a conviction, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from a violation of this section.

Sec. 4   RCW 46.20.0921 and 2003 c 214 s 1 are each amended to read as follows:
     (1) It is a misdemeanor for any person:
     (a) To display or cause or permit to be displayed or have in his or her possession any fictitious or fraudulently altered driver's license or identicard;
     (b) To lend his or her driver's license or identicard to any other person or knowingly permit the use thereof by another;
     (c) To display or represent as one's own any driver's license or identicard not issued to him or her;
     (d) Willfully to fail or refuse to surrender to the department upon its lawful demand any driver's license or identicard which has been suspended, revoked, or canceled;
     (e) To use a false or fictitious name in any application for a driver's license or identicard or to knowingly make a false statement or to knowingly conceal a material fact or otherwise commit a fraud in any such application;
     (f) To permit any unlawful use of a driver's license or identicard issued to him or her.
     (2) It is a class C felony for any person to sell or deliver a stolen driver's license or identicard.
     (3) It is unlawful for any person to manufacture, sell, or deliver a forged, fictitious, counterfeit, fraudulently altered, or unlawfully issued driver's license or identicard, or to manufacture, sell, or deliver a blank driver's license or identicard except under the direction of the department. A violation of this subsection is:
     (a) A class C felony if committed (i) for financial gain or (ii) with intent to commit forgery((,)) or theft((, or identity theft)); or
     (b) A gross misdemeanor if the conduct does not violate (a) of this subsection.
     (4) Notwithstanding subsection (3) of this section, it is a misdemeanor for any person under the age of twenty-one to manufacture or deliver fewer than four forged, fictitious, counterfeit, or fraudulently altered driver's licenses or identicards for the sole purpose of misrepresenting a person's age.
     (5) In a proceeding under subsection (1), (2), (3), or (4) of this section that is related to an identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality.