Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 269 First Substitute (2018GS)

Sponsor

Rep. Arent, P.

Final action

Governor Signed 3/19/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• modifies the elements of a financial transaction card offense;
• increases the penalty for unlawful possession of the financial transaction card information of a certain number of individuals ;
• increases the penalty for unlawful possession of the identifying documents of a certain number of individuals ;
• establishes an offense for unlawful possession of equipment used to create identifying documents; and
• makes technical changes.

Every vote on this bill

Bill text

IDENTITY THEFT PARAPHERNALIA PROVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Patrice M. Arent
Senate Sponsor: 
Todd Weiler
LONG TITLE
General Description:
This bill amends provisions of the Utah Criminal Code relating to identity fraud.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ modifies the elements of a financial transaction card offense;
▸ increases the penalty for unlawful possession of the financial transaction card
information of a certain number of individuals ;
▸ increases the penalty for unlawful possession of the identifying documents of a
certain number of individuals ;
▸ establishes an offense for unlawful possession of equipment used to create
identifying documents; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-6-506.3
, as last amended by Laws of Utah 2009, Chapter 166
76-6-1105
, as enacted by Laws of Utah 2004, Chapter 227
78B-9-104
, as last amended by Laws of Utah 2017, Chapter 447
ENACTS:
76-6-1106
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-6-506.3
 is amended to read:
76-6-506.3.
Financial transaction card offenses -- Unlawful acquisition,
possession, or transfer of card.
[
Any person
] 
(1) Under circumstances that do not constitute a violation of Subsection
(2), an individual
 is guilty of a third degree felony who:
[
(1)
] 
(a)
 acquires a financial transaction card from another without the consent of the
card holder or the issuer;
[
(2)
] 
(b)
 receives a financial transaction card with intent to use [
it
] 
the financial
transaction card
 in violation of Section 
76-6-506.2
;
[
(3)
] 
(c)
 sells or transfers a financial transaction card to [
another
] 
a
 person with [
the
]
knowledge that [
it
] 
the financial transaction card
 will be used in violation of Section
76-6-506.2
;
[
(4) (a)
] 
(d) (i)
 acquires a financial transaction card that the [
person
] 
individual
 knows
was lost, mislaid, 
stolen,
 or delivered under a mistake as to the identity or address of the card
holder; and
[
(b) (i)
] 
(ii) (A)
 retains possession with intent to use [
it
] 
the financial transaction card
in violation of Section 
76-6-506.2
; or
[
(ii)
] 
(B)
 sells or transfers [
a
] 
the
 financial transaction card to [
another
] 
a
 person with
[
the
] knowledge that [
it
] 
the financial transaction card
 will be used in violation of Section
76-6-506.2
; or
[
(5)
] 
(e)
 possesses, sells, or transfers any information necessary for the use of a
financial transaction card, including the credit number of the card, the expiration date of the
card, or the personal identification code related to the card:
[
(a) (i)
] 
(i) (A)
 without the consent of the card holder or the issuer; or
[
(ii)
] 
(B)
 with [
the
] knowledge that the information has been acquired without consent
of the card holder or the issuer; and
[
(b)
] 
(ii)
 with intent to use the information in violation of Section 
76-6-506.2
.
(2) An individual is guilty of a second degree felony who possesses, sells, or transfers
any information necessary for the use of 100 or more financial transaction cards, including the
credit number of a card, the expiration date of a card, or the personal identification code related
to a card:
(a) with intent to use the information in violation of Section 
76-6-506.2
; or
(b) with knowledge that the information will be used by another in violation of Section
76-6-506.2
.
Section 2. Section 
76-6-1105
 is amended to read:
76-6-1105.
Unlawful possession of another's identification documents.
(1) [
For purposes of
] 
As used in
 this section [
"identifying
]
:
(a) "Identifying
 document" means:
[
(a)
] 
(i)
 a government issued [
identifying
] document 
commonly used for identification
;
[
(b)
] 
(ii)
 a vehicle registration certificate; or
[
(c)
] 
(iii)
 any other document
, image, data file, or medium
 containing personal
identifying information as defined in Subsections 
76-6-1102
(1)[
(d)
]
(b)
 through [
(k)
] 
(m)
.
(b) "Identifying document" includes:
(i) a counterfeit identifying document; or
(ii) a document containing personal identifying information of a deceased individual.
(c) "Possess" means to have physical control or electronic access.
(2) (a) [
Notwithstanding the provisions of Subsection 
76-6-1102
(3), a person
] 
Under
circumstances that do not constitute a violation of Section 
76-6-1102
, an individual
 is guilty of
a class A misdemeanor if [
he
] 
the individual
:
(i) obtains or possesses an identifying document
:
(A)
 with knowledge that [
he
] 
the individual
 is not entitled to obtain or possess the
identifying document; or
(B) with intent to deceive or defraud; or
(ii) assists another person in obtaining or possessing an identifying document
:
(A)
 with knowledge that the person is not entitled to obtain or possess the identifying
document[
.
]
; or
(B) with knowledge that the person intends to use the identifying document to deceive
or defraud.
(b) [
A person
] 
Under circumstances that do not constitute a violation of Section
76-6-1102
, an individual
 is guilty of a third degree felony if [
he
] 
the individual
:
(i) obtains or possesses [
multiple
] identifying documents 
of more than two, but fewer
than 100, individuals:
(A)
 with knowledge that [
he
] 
the individual
 is not entitled to obtain or possess the
[
multiple
] identifying documents; or
(B) with intent to deceive or defraud; or
(ii) assists another person in obtaining or possessing [
multiple
] identifying documents
of more than two, but fewer than 100, individuals:
(A)
 with knowledge that the person is not entitled to obtain or possess the multiple
identifying documents[
.
]
; or
[
(c) For purposes of Subsection (2)(b), "multiple identifying documents" means
identifying documents of two or more people.
]
(B) with knowledge that the person intends to use the identifying documents to deceive
or defraud.
(c) Under circumstances that do not constitute a violation of Section 
76-6-1102
, an
individual is guilty of a second degree felony if the individual:
(i) obtains or possesses identifying documents of 100 or more individuals:
(A) with knowledge that the individual is not entitled to obtain or possess the
identifying documents; or
(B) with intent to deceive or defraud; or
(ii) assists another person in obtaining or possessing identifying documents of 100 or
more individuals:
(A) with knowledge that the person is not entitled to obtain or possess the identifying
documents; or
(B) with knowledge that the person intends to use the identifying documents to deceive
or defraud.
Section 3. Section 
76-6-1106
 is enacted to read:
 76-6-1106.
Possession of identity fraud equipment.
(1) As used in this section:
(a) "Financial transaction card" means the same as that term is defined in Subsection
76-6-506
(5).
(b) "Identifying document" means the same as that term is defined in Subsection
76-6-1105
(1).
(c) "Identity equipment" means any equipment, mechanism, material, or program used,
or intended for use, to make an identifying document or financial transaction card.
(2) An individual is guilty of a class A misdemeanor who, with intent to deceive or
defraud, possesses at least three different objects that are identity equipment.
(3) In determining whether an object is identity equipment, the trier of fact, in addition
to all other logically relevant factors, should consider:
(a) statements by an owner or by anyone in control of the object concerning the object's
use;
(b) prior convictions, if any, of an owner, or of anyone in control of the object, under
any state or federal law relating to identity theft;
(c) the proximity of the object, in time and space, to a violation of this chapter;
(d) the proximity of the object to an identifying document;
(e) descriptive materials accompanying the object that explain or depict the object's
use;
(f) national and local advertising concerning the object's use;
(g) the manner in which the object is displayed for sale;
(h) the existence and scope of legitimate uses of the object in the community; and
(i) expert testimony concerning the object's use.
Section 4. Section 
78B-9-104
 is amended to read:
78B-9-104.
Grounds for relief -- Retroactivity of rule.
(1) Unless precluded by Section 
78B-9-106
 or 
78B-9-107
, a person who has been
convicted and sentenced for a criminal offense may file an action in the district court of
original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence
upon the following grounds:
(a) the conviction was obtained or the sentence was imposed in violation of the United
States Constitution or Utah Constitution;
(b) the conviction was obtained or the sentence was imposed under a statute that is in
violation of the United States Constitution or Utah Constitution, or the conduct for which the
petitioner was prosecuted is constitutionally protected;
(c) the sentence was imposed or probation was revoked in violation of the controlling
statutory provisions;
(d) the petitioner had ineffective assistance of counsel in violation of the United States
Constitution or Utah Constitution;
(e) newly discovered material evidence exists that requires the court to vacate the
conviction or sentence, because:
(i) neither the petitioner nor petitioner's counsel knew of the evidence at the time of
trial or sentencing or in time to include the evidence in any previously filed post-trial motion or
post-conviction proceeding, and the evidence could not have been discovered through the
exercise of reasonable diligence;
(ii) the material evidence is not merely cumulative of evidence that was known;
(iii) the material evidence is not merely impeachment evidence; and
(iv) viewed with all the other evidence, the newly discovered material evidence
demonstrates that no reasonable trier of fact could have found the petitioner guilty of the
offense or subject to the sentence received; or
(f) the petitioner can prove entitlement to relief under a rule announced by the United
States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction
and sentence became final on direct appeal, and that:
(i) the rule was dictated by precedent existing at the time the petitioner's conviction or
sentence became final; or
(ii) the rule decriminalizes the conduct that comprises the elements of the crime for
which the petitioner was convicted.
(g) the petitioner committed any of the following offenses while subject to force, fraud,
or coercion, as defined in Section 
76-5-308
:
(i) Section 
58-37-8
, possession of a controlled substance;
(ii) Section 
76-10-1304
, aiding prostitution;
(iii) Section 
76-6-206
, criminal trespass;
(iv) Section 
76-6-413
, theft;
(v) Section 
76-6-502
, possession of forged writing or device for writing;
(vi) Sections 
76-6-602
 through 
76-6-608
, retail theft;
(vii) Subsection 
76-6-1105
(2)(a)(i)
(A)
, unlawful possession of another's identification
document;
(viii) Section 
76-9-702
, lewdness;
(ix) Section 
76-10-1302
, prostitution; or
(x) Section 
76-10-1313
, sexual solicitation.
(2) The court may not grant relief from a conviction or sentence unless the petitioner
establishes that there would be a reasonable likelihood of a more favorable outcome in light of
the facts proved in the post-conviction proceeding, viewed with the evidence and facts
introduced at trial or during sentencing.
(3) The court may not grant relief from a conviction based on a claim that the petitioner
is innocent of the crime for which convicted except as provided in Title 78B, Chapter 9, Part 3,
Postconviction Testing of DNA, or Part 4, Postconviction Determination of Factual Innocence. 
Claims under Part 3, Postconviction Testing of DNA or Part 4, Postconviction Determination
of Factual Innocence of this chapter may not be filed as part of a petition under this part, but
shall be filed separately and in conformity with the provisions of Part 3, Postconviction Testing
of DNA or Part 4, Postconviction Determination of Factual Innocence.
Legislative Review Note
Office of Legislative Research and General Counsel