Sub. H. B. No. 48 As Reported by the Senate Judiciary--Criminal Justice Committee

Representatives Hughes, Aslanides, Combs, C. Evans, D. Evans, Faber, Flowers, Gibbs, Hoops, Kearns, Latta, McGregor, Oelslager, Schaffer, J. Stewart, Taylor, Trakas, Webster, DeGeeter, Otterman, Perry, Gilb, Seaver, Willamowski, D. Stewart, Barrett, Brown, Buehrer, Calvert, Carano, Cassell, Chandler, Collier, Distel, Driehaus, Garrison, Hagan, Harwood, Martin, T. Patton, Peterson, Setzer, G. Smith, Strahorn, Uecker, Wagner, Wagoner, Walcher, Widener, Williams, Wolpert, Yuko

Senators Clancy, Jordan, Austria, Grendell, Schuring, Zurz, Goodman

A BILL
To amend section 2913.49 and to enact section 109.94 1
of the Revised Code to increase the penalty for 2
identity fraud in certain circumstances, including 3
when it is committed against an elderly person or 4
disabled adult, to modify the affirmative defenses 5
available for that offense, and to create the 6
Identity Fraud Passport. 7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 2913.49 be amended and section 109.94 8
of the Revised Code be enacted to read as follows: 9

       Sec. 109.94. (A) The attorney general, in cooperation with 10
any law enforcement agency, may issue an identity fraud passport 11
to a person who is a victim in this state of identity fraud or 12
identity fraud against an elderly person or disabled adult and has 13
filed a police report with any law enforcement agency citing that 14
the person is a victim of a violation of section 2913.49 of the 15
Revised Code. Once a police report of that nature has been filed 16
with any law enforcement agency, the victim may apply for an 17
identity fraud passport through any law enforcement agency. The 18
law enforcement agency shall send a copy of the police report and 19
the application for an identity fraud passport to the attorney 20
general. The attorney general shall process the application and 21
supporting police report and may issue the victim of identity 22
fraud or identity fraud against an elderly person or disabled 23
adult an identity fraud passport in the form of a card or 24
certificate. 25

       (B)(1) A victim of identity fraud or identity fraud against 26
an elderly person or disabled adult may present the victim's 27
identity fraud passport issued by the attorney general in 28
accordance with division (A) of this section to both of the 29
following: 30

        (a) A law enforcement agency to help prevent the victim's 31
arrest or detention for offenses committed by someone other than 32
the victim who is using the victim's identity; 33

        (b) Any of the victim's creditors to aid in the creditors' 34
investigation and establishment of whether fraudulent charges were 35
made against accounts in the victim's name or whether accounts 36
were opened using the victim's identity. 37

        (2) Acceptance of the identity fraud passport presented by 38
the victim to a law enforcement agency or creditors pursuant to 39
division (B)(1) of this section is at the discretion of the law 40
enforcement agency or creditor. A law enforcement agency or 41
creditor may consider the surrounding circumstances and available 42
information regarding the offense of identity fraud pertaining to 43
the victim. 44

       (C)(1) Subject to its use for statistical purposes pursuant 45
to division (C)(2) of this section, an application made with the 46
attorney general pursuant to division (A) of this section, 47
including any supporting documentation, is not a public record 48
pursuant to section 149.43 of the Revised Code. The attorney 49
general may provide access to the applications and supporting 50
documentation filed with the attorney general's office to other 51
criminal justice agencies in this or another state. 52

       (2) The attorney general shall maintain statistics with 53
respect to the number of applications for identity fraud passports 54
submitted, and the number of identity fraud passports issued, 55
pursuant to division (A) of this section. Not later than the first 56
day of November in each year, the attorney general shall submit a 57
statistical report to the governor, the president and minority 58
leader of the senate, and the speaker and minority leader of the 59
house of representatives indicating the number of applications for 60
identity fraud passports submitted, and the number of identity 61
fraud passports issued, pursuant to division (A) of this section 62
in the previous fiscal year. Nothing in the statistics maintained 63
or the statistical report submitted by the attorney general 64
pursuant to this division shall identify, or enable the 65
identification of, any individual who applied for, was issued, or 66
was denied an identity fraud passport. The statistics and the 67
statistical report are public records for the purpose of section 68
149.43 of the Revised Code. 69

       Sec. 2913.49. (A) As used in this section, "personal 70
identifying information" includes, but is not limited to, the 71
following: the name, address, telephone number, driver's license, 72
driver's license number, commercial driver's license, commercial 73
driver's license number, state identification card, state 74
identification card number, social security card, social security 75
number, birth certificate, place of employment, employee 76
identification number, mother's maiden name, demand deposit 77
account number, savings account number, money market account 78
number, mutual fund account number, other financial account 79
number, personal identification number, password, or credit card 80
number of a living or dead individual. 81

       (B) No person, without the express or implied consent of the 82
other person, shall use, obtain, or possess any personal 83
identifying information of another person with intent to do either 84
of the following: 85

       (1) Hold the person out to be the other person; 86

       (2) Represent the other person's personal identifying 87
information as the person's own personal identifying information. 88

       (C) No person shall create, obtain, possess, or use the 89
personal identifying information of any person with the intent to 90
aid or abet another person in violating division (B) of this 91
section. 92

       (D) No person, with intent to defraud, shall permit another 93
person to use the person's own personal identifying information. 94

       (E) No person who is permitted to use another person's 95
personal identifying information as described in division (D) of 96
this section shall use, obtain, or possess the other person's 97
personal identifying information with intent to defraud any person 98
by doing any act identified in division (B)(1) or (2) of this 99
section. 100

       (F)(1) It is an affirmative defense to a charge under 101
division (B) of this section that the person using the personal 102
identifying information is acting in accordance with a legally 103
recognized guardianship or conservatorship or as a trustee or 104
fiduciary. 105

       (2) It is an affirmative defense to a charge under division 106
(B), (C), (D), or (E) of this section that either of the following 107
applies: 108

       (a) The person or entity using, obtaining, possessing, or 109
creating the personal identifying information or permitting it to 110
be used is a law enforcement agency, authorized fraud personnel, 111
or a representative of or attorney for a law enforcement agency or 112
authorized fraud personnel and is using, obtaining, possessing, or 113
creating the personal identifying information or permitting it to 114
be used, with prior consent given as specified in this division, 115
in a bona fide investigation, an information security evaluation, 116
a pretext calling evaluation, or a similar matter. The prior 117
consent required under this division shall be given by the person 118
whose personal identifying information is being used, obtained, 119
possessed, or created or is being permitted to be used or, if the 120
person whose personal identifying information is being used, 121
obtained, possessed, or created or is being permitted to be used 122
is deceased, by that deceased person's executor, or a member of 123
that deceased person's family, or that deceased person's attorney. 124
The prior consent required under this division may be given orally 125
or in writing by the person whose personal identifying information 126
is being used, obtained, possessed, or created or is being 127
permitted to be used or that person's executor, or family member, 128
or attorney. 129

       (b) The personal identifying information was obtained, 130
possessed, or used, created, or permitted to be used for a lawful 131
purpose, provided that division (F)(2)(b) of this section does not 132
apply if the person or entity using, obtaining, possessing, or 133
creating the personal identifying information or permitting it to 134
be used is a law enforcement agency, authorized fraud personnel, 135
or a representative of or attorney for a law enforcement agency or 136
authorized fraud personnel that is using, obtaining, possessing, 137
or creating the personnel identifying information or permitting it 138
to be used in an investigation, an information security 139
evaluation, a pretext calling evaluation, or similar matter. 140

       (G) It is not a defense to a charge under this section that 141
the person whose personal identifying information was obtained, 142
possessed, or used, created, or permitted to be used was deceased 143
at the time of the offense. 144

       (H)(1) If ~~the~~an offender commits a violation of division 145
(B), (D), or (E) of this section and the violation occurs as part 146
of a course of conduct involving other violations of division (B), 147
(D), or (E) of this section or violations of, attempts to violate, 148
conspiracies to violate, or complicity in violations of division 149
(C) of this section or section 2913.02, 2913.04, 2913.11, 2913.21, 150
2913.31, 2913.42, 2913.43, or 2921.13 of the Revised Code, the 151
court, in determining the degree of the offense pursuant to 152
division (I) of this section, may aggregate all credit, property, 153
or services obtained or sought to be obtained by the offender and 154
all debts or other legal obligations avoided or sought to be 155
avoided by the offender in the violations involved in that course 156
of conduct. The course of conduct may involve one victim or more 157
than one victim. 158

       (2) If ~~the~~an offender commits a violation of division (C) of 159
this section and the violation occurs as part of a course of 160
conduct involving other violations of division (C) of this section 161
or violations of, attempts to violate, conspiracies to violate, or 162
complicity in violations of division (B), (D), or (E) of this 163
section or section 2913.02, 2913.04, 2913.11, 2913.21, 2913.31, 164
2913.42, 2913.43, or 2921.13 of the Revised Code, the court, in 165
determining the degree of the offense pursuant to division (I) of 166
this section, may aggregate all credit, property, or services 167
obtained or sought to be obtained by the person aided or abetted 168
and all debts or other legal obligations avoided or sought to be 169
avoided by the person aided or abetted in the violations involved 170
in that course of conduct. The course of conduct may involve one 171
victim or more than one victim. 172

       (I)(1) Whoever violates this section is guilty of identity 173
fraud. ~~Except~~ 174

       (2) Except as otherwise provided in this division or division 175
(I)(3) of this section, identity fraud is a ~~misdemeanor~~felony of 176
the ~~first~~fifth degree. If the value of the credit, property, 177
services, debt, or other legal obligation involved in the 178
violation or course of conduct is five hundred dollars or more and 179
is less than five thousand dollars, except as otherwise provided 180
in division (I)(3) of this section, identity fraud is a felony of 181
the fourth degree. If the value of the credit, property, services, 182
debt, or other legal obligation involved in the violation or 183
course of conduct is five thousand dollars or more and is less 184
than one hundred thousand dollars, except as otherwise provided in 185
division (I)(3) of this section, identity fraud is a felony of the 186
third degree. If the value of the credit, property, services, 187
debt, or other legal obligation involved in the violation or 188
course of conduct is one hundred thousand dollars or more, except 189
as otherwise provided in division (I)(3) of this section, identity 190
fraud is a felony of the second degree. 191

       (3) If the victim of the offense is an elderly person or 192
disabled adult, a violation of this section is identity fraud 193
against an elderly person or disabled adult. Except as otherwise 194
provided in this division, identity fraud against an elderly 195
person or disabled adult is a felony of the fifth degree. If the 196
value of the credit, property, services, debt, or other legal 197
obligation involved in the violation or course of conduct is five 198
hundred dollars or more and is less than five thousand dollars, 199
identity fraud against an elderly person or disabled adult is a 200
felony of the third degree. If the value of the credit, property, 201
services, debt, or other legal obligation involved in the 202
violation or course of conduct is five thousand dollars or more 203
and is less than one hundred thousand dollars, identity fraud 204
against an elderly person or disabled adult is a felony of the 205
second degree. If the value of the credit, property, services, 206
debt, or other legal obligation involved in the violation or 207
course of conduct is one hundred thousand dollars or more, 208
identity fraud against an elderly person or disabled adult is a 209
felony of the first degree. 210

       Section 2. That existing section 2913.49 of the Revised Code 211
is hereby repealed. 212

Section 1. That section 2913.49 be amended and section 109.94	8
of the Revised Code be enacted to read as follows:	9

Sec. 109.94. (A) The attorney general, in cooperation with	10
any law enforcement agency, may issue an identity fraud passport	11
to a person who is a victim in this state of identity fraud or	12
identity fraud against an elderly person or disabled adult and has	13
filed a police report with any law enforcement agency citing that	14
the person is a victim of a violation of section 2913.49 of the	15
Revised Code. Once a police report of that nature has been filed	16
with any law enforcement agency, the victim may apply for an	17
identity fraud passport through any law enforcement agency. The	18
law enforcement agency shall send a copy of the police report and	19
the application for an identity fraud passport to the attorney	20
general. The attorney general shall process the application and	21
supporting police report and may issue the victim of identity	22
fraud or identity fraud against an elderly person or disabled	23
adult an identity fraud passport in the form of a card or	24
certificate.	25

(B)(1) A victim of identity fraud or identity fraud against	26
an elderly person or disabled adult may present the victim's	27
identity fraud passport issued by the attorney general in	28
accordance with division (A) of this section to both of the	29
following:	30

(a) A law enforcement agency to help prevent the victim's	31
arrest or detention for offenses committed by someone other than	32
the victim who is using the victim's identity;	33

(b) Any of the victim's creditors to aid in the creditors'	34
investigation and establishment of whether fraudulent charges were	35
made against accounts in the victim's name or whether accounts	36
were opened using the victim's identity.	37

(2) Acceptance of the identity fraud passport presented by	38
the victim to a law enforcement agency or creditors pursuant to	39
division (B)(1) of this section is at the discretion of the law	40
enforcement agency or creditor. A law enforcement agency or	41
creditor may consider the surrounding circumstances and available	42
information regarding the offense of identity fraud pertaining to	43
the victim.	44

(C)(1) Subject to its use for statistical purposes pursuant	45
to division (C)(2) of this section, an application made with the	46
attorney general pursuant to division (A) of this section,	47
including any supporting documentation, is not a public record	48
pursuant to section 149.43 of the Revised Code. The attorney	49
general may provide access to the applications and supporting	50
documentation filed with the attorney general's office to other	51
criminal justice agencies in this or another state.	52

(2) The attorney general shall maintain statistics with	53
respect to the number of applications for identity fraud passports	54
submitted, and the number of identity fraud passports issued,	55
pursuant to division (A) of this section. Not later than the first	56
day of November in each year, the attorney general shall submit a	57
statistical report to the governor, the president and minority	58
leader of the senate, and the speaker and minority leader of the	59
house of representatives indicating the number of applications for	60
identity fraud passports submitted, and the number of identity	61
fraud passports issued, pursuant to division (A) of this section	62
in the previous fiscal year. Nothing in the statistics maintained	63
or the statistical report submitted by the attorney general	64
pursuant to this division shall identify, or enable the	65
identification of, any individual who applied for, was issued, or	66
was denied an identity fraud passport. The statistics and the	67
statistical report are public records for the purpose of section	68
149.43 of the Revised Code.	69

Sec. 2913.49. (A) As used in this section, "personal	70
identifying information" includes, but is not limited to, the	71
following: the name, address, telephone number, driver's license,	72
driver's license number, commercial driver's license, commercial	73
driver's license number, state identification card, state	74
identification card number, social security card, social security	75
number, birth certificate, place of employment, employee	76
identification number, mother's maiden name, demand deposit	77
account number, savings account number, money market account	78
number, mutual fund account number, other financial account	79
number, personal identification number, password, or credit card	80
number of a living or dead individual.	81

(B) No person, without the express or implied consent of the	82
other person, shall use, obtain, or possess any personal	83
identifying information of another person with intent to do either	84
of the following:	85

(2) Represent the other person's personal identifying	87
information as the person's own personal identifying information.	88

(C) No person shall create, obtain, possess, or use the	89
personal identifying information of any person with the intent to	90
aid or abet another person in violating division (B) of this	91
section.	92

(D) No person, with intent to defraud, shall permit another	93
person to use the person's own personal identifying information.	94

(E) No person who is permitted to use another person's	95
personal identifying information as described in division (D) of	96
this section shall use, obtain, or possess the other person's	97
personal identifying information with intent to defraud any person	98
by doing any act identified in division (B)(1) or (2) of this	99
section.	100

(F)(1) It is an affirmative defense to a charge under	101
division (B) of this section that the person using the personal	102
identifying information is acting in accordance with a legally	103
recognized guardianship or conservatorship or as a trustee or	104
fiduciary.	105

(2) It is an affirmative defense to a charge under division	106
(B), (C), (D), or (E) of this section that either of the following	107
applies:	108

(a) The person or entity using, obtaining, possessing, or	109
creating the personal identifying information or permitting it to	110
be used is a law enforcement agency, authorized fraud personnel,	111
or a representative of or attorney for a law enforcement agency or	112
authorized fraud personnel and is using, obtaining, possessing, or	113
creating the personal identifying information or permitting it to	114
be used, with prior consent given as specified in this division,	115
in a bona fide investigation, an information security evaluation,	116
a pretext calling evaluation, or a similar matter. The prior	117
consent required under this division shall be given by the person	118
whose personal identifying information is being used, obtained,	119
possessed, or created or is being permitted to be used or, if the	120
person whose personal identifying information is being used,	121
obtained, possessed, or created or is being permitted to be used	122
is deceased, by that deceased person's executor, or a member of	123
that deceased person's family, or that deceased person's attorney.	124
The prior consent required under this division may be given orally	125
or in writing by the person whose personal identifying information	126
is being used, obtained, possessed, or created or is being	127
permitted to be used or that person's executor, or family member,	128
or attorney.	129

(b) The personal identifying information was obtained,	130
possessed, or used, created, or permitted to be used for a lawful	131
purpose, provided that division (F)(2)(b) of this section does not	132
apply if the person or entity using, obtaining, possessing, or	133
creating the personal identifying information or permitting it to	134
be used is a law enforcement agency, authorized fraud personnel,	135
or a representative of or attorney for a law enforcement agency or	136
authorized fraud personnel that is using, obtaining, possessing,	137
or creating the personnel identifying information or permitting it	138
to be used in an investigation, an information security	139
evaluation, a pretext calling evaluation, or similar matter.	140

(G) It is not a defense to a charge under this section that	141
the person whose personal identifying information was obtained,	142
possessed, or used, created, or permitted to be used was deceased	143
at the time of the offense.	144

(H)(1) If ~~the~~an offender commits a violation of division	145
(B), (D), or (E) of this section and the violation occurs as part	146
of a course of conduct involving other violations of division (B),	147
(D), or (E) of this section or violations of, attempts to violate,	148
conspiracies to violate, or complicity in violations of division	149
(C) of this section or section 2913.02, 2913.04, 2913.11, 2913.21,	150
2913.31, 2913.42, 2913.43, or 2921.13 of the Revised Code, the	151
court, in determining the degree of the offense pursuant to	152
division (I) of this section, may aggregate all credit, property,	153
or services obtained or sought to be obtained by the offender and	154
all debts or other legal obligations avoided or sought to be	155
avoided by the offender in the violations involved in that course	156
of conduct. The course of conduct may involve one victim or more	157
than one victim.	158

(2) If ~~the~~an offender commits a violation of division (C) of	159
this section and the violation occurs as part of a course of	160
conduct involving other violations of division (C) of this section	161
or violations of, attempts to violate, conspiracies to violate, or	162
complicity in violations of division (B), (D), or (E) of this	163
section or section 2913.02, 2913.04, 2913.11, 2913.21, 2913.31,	164
2913.42, 2913.43, or 2921.13 of the Revised Code, the court, in	165
determining the degree of the offense pursuant to division (I) of	166
this section, may aggregate all credit, property, or services	167
obtained or sought to be obtained by the person aided or abetted	168
and all debts or other legal obligations avoided or sought to be	169
avoided by the person aided or abetted in the violations involved	170
in that course of conduct. The course of conduct may involve one	171
victim or more than one victim.	172

(I)(1) Whoever violates this section is guilty of identity	173
fraud. ~~Except~~	174

(2) Except as otherwise provided in this division or division	175
(I)(3) of this section, identity fraud is a ~~misdemeanor~~felony of	176
the ~~first~~fifth degree. If the value of the credit, property,	177
services, debt, or other legal obligation involved in the	178
violation or course of conduct is five hundred dollars or more and	179
is less than five thousand dollars, except as otherwise provided	180
in division (I)(3) of this section, identity fraud is a felony of	181
the fourth degree. If the value of the credit, property, services,	182
debt, or other legal obligation involved in the violation or	183
course of conduct is five thousand dollars or more and is less	184
than one hundred thousand dollars, except as otherwise provided in	185
division (I)(3) of this section, identity fraud is a felony of the	186
third degree. If the value of the credit, property, services,	187
debt, or other legal obligation involved in the violation or	188
course of conduct is one hundred thousand dollars or more, except	189
as otherwise provided in division (I)(3) of this section, identity	190
fraud is a felony of the second degree.	191

(3) If the victim of the offense is an elderly person or	192
disabled adult, a violation of this section is identity fraud	193
against an elderly person or disabled adult. Except as otherwise	194
provided in this division, identity fraud against an elderly	195
person or disabled adult is a felony of the fifth degree. If the	196
value of the credit, property, services, debt, or other legal	197
obligation involved in the violation or course of conduct is five	198
hundred dollars or more and is less than five thousand dollars,	199
identity fraud against an elderly person or disabled adult is a	200
felony of the third degree. If the value of the credit, property,	201
services, debt, or other legal obligation involved in the	202
violation or course of conduct is five thousand dollars or more	203
and is less than one hundred thousand dollars, identity fraud	204
against an elderly person or disabled adult is a felony of the	205
second degree. If the value of the credit, property, services,	206
debt, or other legal obligation involved in the violation or	207
course of conduct is one hundred thousand dollars or more,	208
identity fraud against an elderly person or disabled adult is a	209
felony of the first degree.	210

Section 2. That existing section 2913.49 of the Revised Code	211
is hereby repealed.	212