Oregon Court of Appeals Limits Identity Theft Prosecution

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A recent ruling by the Oregon Court of Appeals limiting the type of evidence sufficient to convict someone of identity theft in Oregon has the potential to reduce identity theft prosecutions around the state, says JDL Attorneys.

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The ruling is potentially significant in what it limits” says James. "Business as usual in prosecuting these crimes is over."

According to the Oregon Anti-Crime Alliance, Oregon ranks 14th from the bottom in terms of identity theft rates, with 76 incidents per 100,000 of the population. But, a recent ruling by the Oregon Court of Appeals in State v. Martin A143581 may limit identity theft prosecutions in Oregon.

In that case, as summarized by the court:

“City of Portland police officers responded to a silent alarm at Point West Credit Union on Northeast 12th and Irving Streets at approximately 5:00 a.m. on November 9, 2008. When they arrived at that location, one of the officers discovered defendant crouching in shrubbery adjacent to the credit union building... After being transported, defendant was booked into the facility. During the booking process, the officer performing an inventory of defendant's personal effects found an Oregon DMV identification card containing the name of another individual, in addition to the identification that defendant had furnished to the officer. The officer asked defendant why he had someone else's identification. Defendant responded that 'he had found a wallet.' However, he refused to tell the officer where he had found the wallet or where it was at the time of their conversation. The identification card includes a picture of a white male about the approximate age and height as defendant, who also is a white male.” See opinion.

The defendant in the case, Kevin Martin, was charged with identity theft. His attorney, Bronson James of JDL Attorneys LLP in Portland Oregon challenged that conviction. According to James, simply having possession of someone else’s identification, without more evidence, is not a crime.

“In my experience, Identity Theft has become a favorite charge for prosecutors in Oregon, mostly because it has historically been easy to get convictions” says James. “Basically, if you had someone else’s identification on you when you encountered the police, you would likely pick up an identity theft charge. Even if there was no evidence that you ever used the ID. The law was never meant to be interpreted that broadly.”

The court agreed with James:

“Defendant's mere possession of the card is not by itself probative of an intent to use the card to deceive or defraud. Moreover, defendant was under no legal obligation to explain further his possession of another person's identification card to the police, and his disclosure that he had found the card in a wallet that had been lost implies no criminal wrongdoing on his part.”

“The ruling is potentially significant in what it limits” says James. “Going foreward, there is going to need to be some investigation done. Did the person use the ID? Was someone defrauded? There will have to be more than mere possession. Business as usual in prosecuting these crimes is over.”

JDL Attorneys LLP is a Portland Oregon law firm practicing in criminal, immigration, and personal injury law.

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