New Mexico Obtaining Identity by Electronic Fraud
NM Stat § 30-16-24.1
ARTICLE 16 Larceny
30-16-24.1. Theft of identity; obtaining identity by electronic fraud.
A. Theft of identity consists of willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another or with the intent to sell or distribute the information to another for an illegal purpose.
B. Obtaining identity by electronic fraud consists of knowingly and willfully soliciting, requesting or taking any action by means of a fraudulent electronic communication with intent to obtain the personal identifying information of another.
C. As used in this section:
(1) "fraudulent electronic communication" means a communication by a person that is an electronic mail message, web site or any other use of the internet that contains fraudulent, false, fictitious or misleading information that depicts or includes the name, logo, web site address, email address, postal address, telephone number or any other identifying information of a business, organization or state agency, to which the person has no legitimate claim of right;
(2) "personal identifying information" means information that alone or in conjunction with other information identifies a person, including the person's name, address, telephone number, driver's license number, social security number, date of birth, biometric data, place of employment, mother's maiden name, demand deposit account number, checking or savings account number, credit card or debit card number, personal identification number, electronic identification code, automated or electronic signature, passwords or any other numbers or information that can be used to obtain access to a person's financial resources, obtain identification, act as identification or obtain goods or services; and
(3) "biometric data" means data, such as finger, voice, retina or iris prints or deoxyribonucleic acid, that capture, represent or enable the reproduction of unique physical attributes of a person.
D. Whoever commits theft of identity is guilty of a fourth degree felony.
E. Whoever commits obtaining identity by electronic fraud is guilty of a fourth degree felony.
F. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.
G. In a prosecution brought pursuant to this section, the theft of identity or obtaining identity by electronic fraud shall be considered to have been committed in the county:
(1) where the person whose identifying information was appropriated, obtained or sought resided at the time of the offense; or
(2) in which any part of the offense took place, regardless of whether the defendant was ever actually present in the county.
H. A person found guilty of theft of identity or of obtaining identity by electronic fraud shall, in addition to any other punishment, be ordered to make restitution for any financial loss sustained by a person injured as the direct result of the offense. In addition to out-of-pocket costs, restitution may include payment for costs, including attorney fees, incurred by that person in clearing the person's credit history, credit rating, criminal history or criminal charges or costs incurred in connection with a legal proceeding to satisfy a debt, lien, judgment or other obligation of that person arising as a result of the offense.
I. The sentencing court shall issue written findings of fact and may issue orders as are necessary to correct public records and errors in credit reports and identifying information that contain false information as a result of the theft of identity or of obtaining identity by electronic fraud.
History: Laws 2001, ch. 138, § 1; 2005, ch. 296, § 1; 2009, ch. 95, § 3.
ANNOTATIONS
The 2009 amendment, effective July 1, 2009, in Subsection A, after "person or another", added the remainder of the sentence; in Paragraph (2) of Subsection C, after "social security number", added "date of birth, biometric data"; after "place of employment" added "mother’s"; after "maiden name", deleted "of the person’s mother", after "personal identification number", added "electronic identification code, automated or electronic signature", after "can be used to", added "obtain" and after "person’s financial resources", added the remainder of the sentence; added Paragraph (3) of Subsection C; in Subsection H, after "credit rating" added "criminal history or criminal charges" and after "in connection with a", changed "civil or administrative" to "legal"; and in Subsection I, after "necessary to correct", changed "a public record" to "public records and errors in credit reports and identifying information".
The 2005 amendment, effective July 1, 2005, added Subsection B to define the crime of obtaining identity by electronic fraud; added Subsection C(1) to define "fraudulent electronic communication"; changed the crime of theft of identity from a misdemeanor to a fourth degree felony in Subsection D; added Subsection E to provide that the crime of obtaining identity by electronic fraud is a fourth degree felony; added the crime of obtaining identity by electronic fraud in Subsection G; provided in Subsection G(1) that the crimes are considered to be committed in the county where the person whose identifying information was obtained or sought resided; and added the crime of obtaining identity by electronic fraud in Subsections H and I.
Jurisdiction to prosecute use of identity outside New Mexico. — Where defendant used the victim’s identity to obtain a driver’s license in Arizona, rent cars in Arizona, Nevada, and Georgia, and provide booking information upon defendant’s arrest in Georgia; none of the acts of using the victim’s identity occurred in New Mexico; the victim resided in New Mexico at the time of the transactions; and as a result of defendant’s use of the victim’s identity, the victim encountered problems trying to get a driver’s license in New Mexico and victim received rental car bills in New Mexico that were incurred by defendant outside New Mexico, New Mexico had territorial jurisdiction over the offense, even if the acts were committed outside New Mexico because the crime had an effect upon the victim in New Mexico. State v. Allen, 2014-NMCA-111, cert. denied, 2014-NMCERT-010.
Defendant's conviction for identity theft was preempted by the federal Immigration Reform and Control Act. — Where defendant was convicted of identity theft for using another person's personal identifying information on documents he submitted to his employer during the hiring process, among which was a federal employment eligibility verification form (Form I-9) which the federal government requires employers to use to verify that an employee may lawfully work in the United States, and where defendant claimed that his conviction for identity theft was preempted by the federal Immigration Reform and Control Act (IRCA), which makes it unlawful for an employer to knowingly hire a non-citizen or non-national who is not authorized to work in the United States, defendant's conviction was improper because IRCA expressly prohibits the use of Form I-9 except for a few enumerated purposes to verify that an individual is not an unauthorized alien, and in this case, the state used Form I-9 to prove the identity theft charge, a non-enumerated purpose. Therefore, the state's use of Form I-9 was prohibited by IRCA and defendant's identity theft conviction was preempted to the extent it was based on Form I-9. Moreover, defendant's conviction constituted fundamental error because it is unclear to what extent the jury's decision was predicated on Form I-9, as opposed to other documents relied on by the State. State v. Prieto-Lozoya, 2021-NMCA-019, cert. denied.
Sufficient evidence to support defendant's conviction for identity theft. — Where defendant was charged with identity theft for using another person's personal identifying information on documents he submitted to his employer during the hiring process, and where the state presented evidence that defendant was not authorized to be in the United States at the time he applied for the job, that he did not apply for the job in his own name, but used the identity of someone else, that he submitted documentation, including a social security card bearing another persons' name and social security number, a permanent resident card bearing another person's name and date of birth, but with defendant's image on the card, a W-4 federal tax withholding form bearing another person's name and social security number, and a federal employment eligibility verification form bearing another person's name, date of birth and social security number, to his employer as part of the hiring process, and that defendant was not authorized to use the personal identifying information of the other person, there was sufficient evidence to prove beyond a reasonable doubt that defendant intended to defraud his employer and that he committed identity theft. State v. Prieto-Lozoya, 2021-NMCA-019, cert. denied.
For more information, see here: https://nmonesource.com/nmos/nmsa/en/item/4371/index.do#!fragment/zoupio-_Toc98843215/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgE4AOLgFgGYATAEYArAEoANMmylCEAIqJCuAJ7QA5BskRCYXAiUr1WnXoMgAynlIAhdQCUAogBknANQCCAOQDCTyVIwACNoUnZxcSA
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