Identity theft is an offense more common than one might expect. In many cases, identity-related crimes might be committed unintentionally, and a defendant in such a scenario has many defense options to fight their charge. In today’s blog, we discuss the basic elements of an identity theft charge and effective defense strategies to fight conviction.
What Constitutes Identity Theft?
Common identity theft cases involve data such as Social Security numbers, home addresses, and birth dates, which may be used to create fraudulent accounts or perpetrate other crimes under an alleged criminal’s name. To prosecute an identity theft charge, the Attorney General may bring action to restrain or enjoin an alleged perpetrator from further identity theft acts, freeze their assets, or take any other appropriate or necessary measures. Any prosecuting authority may also prosecute an identity theft charge.
Penalties and Damages for Identity Theft
In Tennessee, identity theft is considered a Class D felony punishable by 2-12 years in prison and a fine of up to $5,000. The state may also seek attorney fees and other legal costs for restitution, while a civil court may award the victim additional damages and attorney's fees.
More specifically, the court may award 3 times the actual damages to the alleged victim and other relief as is necessary and proper. The civil penalty shall be awarded equal to the greatest of:
- $10,000;
- $5,000 per each day the alleged victim's identity is assumed; or
- 10 times the amount obtained or attempted to be obtained.
The alleged victim may also receive restitution for all ascertainable loss, as well as interest on the loss.
Defending Against Identity Theft Charges
Authorization for Use
A key element of an identity theft charge is that the alleged perpetrator lacked the authority to utilize the information of the other person’s identity. However, if an individual were given consent to use the victim’s identity, then they cannot be held liable for committing identity theft. In many identity theft cases, explicit or implicit permission has been granted, though less obviously, so this is a common defense method depending on the circumstances.
For example, if you work as a purchasing agent for several businesses and one of the businesses gives you their banking information to make purchases on their behalf, you cannot have committed identity theft by making a purchase for them.
No Fraudulent Intent or Unlawful Purpose
An individual cannot be liable for criminal activity if the prosecution cannot show that you engaged in unlawful conduct with the stolen identity. In other words, if you somehow obtained another’s identity, you cannot be held liable for the crime of identity theft if you did not actually use that identifying information for an unlawful purpose. For instance, if you obtained another person’s credit card information but did not actually attempt to commit any crime with such information, then you cannot be held liable for identity theft; prosecutors do not have a case against you if they cannot prove you stole the person’s identity to perform an act considered unlawful.
No Intent
For the prosecution to allege criminal liability for identity theft, they must prove that you willfully with specific intent obtained the victim’s identity for some unlawful purpose. Many times, the circumstances surrounding identity theft are not clear enough to warrant a criminal charge. For example, consider a scenario where you share the exact name as another person, and due to some administrative error you are given access to their business account. Without realizing the error, you proceed to use the funds in that account for your own purposes. In this case, you would not be liable for criminal activity due to an honest mistake with no criminal intent.
Improper Search
Search and seizure might also be involved in an identity theft case. As in many other criminal investigations, unlawful search and seizure may mean evidence not admissible in court. According to the 4th Amendment of the United States Constitution, law enforcement agencies must obtain a properly approved warrant from a judge to search anything a person owns or uses. If the evidence against you in the identity theft case was seized unlawfully, you might have a defense against the use of that evidence in court.
Seek an Attorney Immediately
If you are facing identity theft-related charges, speak to an attorney immediately. The penalties for such a crime could lead to significant penalties much more than any amount you may have allegedly used with the false identity. Fortunately, there are a number of effective defense strategies that could address your situation. Let the legal team at Eldridge and Cravens, PC fight your identity theft charge in Tennessee.
Contact our firm at Eldridge and Cravens, PC to discuss your defense options today!