Criminal Identity Theft

Criminal Identity Theft

Do You Know what Criminal Identity Theft is? Criminal identity theft occurs when a criminal gives another persons name and personal information such as a drivers license, date of birth, or Social Security number (SSN) to a law enforcement officer during an investigation or upon arrest. Sometimes a criminal may present to law enforcement a counterfeit license containing another persons data.

One of the ways of perpetrating this crime is where the criminal fraudulently obtained a drivers license or identification card in the victims name and provides that identification document to law enforcement. Or the criminal, without showing any photo identification, uses the name of a friend or relative. In many cases, the criminal is cited for a traffic violation or for a misdemeanor violation and is released from the arrest. The criminal signs the citation and promises to appear in court. If the criminal does not appear in court, the magistrate may issue a bench warrant, but the warrant of arrest will be under the victims name.

The identity theft victim may not know there is a warrant of arrest issued under his/her name. The victim may unexpectedly be detained pursuant to a routine traffic stop and then subsequently arrested and taken to county jail (booked) because of the outstanding bench warrant.

In some cases the criminal will appear in court for the traffic or misdemeanor violation and plead guilty without the victim being aware of this event. In other cases, the criminal is arrested and booked at the county jail for a felony such as a drunk driving or other serious public offense. The criminal provides the victims name and personal information. This information is then recorded in the countywide data base and is usually transferred to the States criminal records data base and possibly to the national data bases, the National Crime Information Center (NCIC)

Some identity theft victims, unaware of the earlier criminal activity by the criminal, may learn of the impersonation when the victim is denied employment or terminated from employment. In these cases, the employer conducted a background investigation and had relied upon the criminal history found under the victims name. Note that the employer is legally obligated to inform the victim of the reason for the rejection of employment. (See Federal Trade Commission information about this requirement at www.ftc.gov/bcp/conline/pubs/buspubs/credempl.htm.)

Unfortunately, as with financial identity theft, the burden of clearing ones name within the criminal justice system is primarily on the victim. The victim must act quickly and decisively assertively to minimize the damage. Yet, the responsibility to correct the erroneous data in the various criminal justice computer systems is with the officials working within the criminal justice system. There are no established procedures for clearing ones wrongful criminal record.

This information guide. The purpose of this guide is to provide information on the steps you must take to clear your name. Be aware that the procedures to correct the record within the criminal justice databases are likely to be somewhat different from state to state, and even from jurisdiction to jurisdiction. This guide gives you an outline of steps to take.

First and Foremost . . . Document, document, document. The reason the cases of so many victims of Identity Theft drag on for months and months is that the victims do not generate the paperwork trail needed to prove their fraud case to whichever agency requires proof. So many people simply rely on oral telephone calls and their memory to document details that can be critical to bureaucratic agencies that need definitive information to close their files. Many people do not realize what they are asking of a stranger in a huge bureaucracy please forgive the debt of $ 9,500.00 which appears to have been spent in my name, because, in truth, I did not spend it.

How many merchants will forgive a bill when one simply calls up and says I was not the person who spent the $ 9,500.00 at your store. It was someone else and a fraud. While you know this is the truth, think, for a moment of the store merchant, who if they believe you will be forced to eat the loss of $ 9,500.00. Thinking of your loss in this manner will help to demonstrate the need for you to be absolutely specific about your documents, dates, and times regarding proof of this fraud.

Organizing your case. In dealing with the authorities, it is vital that you keep a detailed log of all conversations, including dates, names, phone numbers, and e-mail addresses. Note the time spent and any expenses incurred, as you may some day be able to request restitution for damages from the courts. Confirm conversations in writing, especially ones that directly deal with clearing criminal records. Send correspondence by certified mail, return receipt requested. Keep copies of all letters and documents sent by mail for your files.

If you must correspond by e-mail, ask the recipient to verify receipt of the letter with the original message attached. However, we must remind you that electronic messages are not secure and should be used sparingly. Never send anything by e-mail that you would not want publicly published. And remember . . . when you hit the delete button, this may not delete the item from your computer.

Criminal records databases. When an individual is first "booked" or a warrant of arrest is issued, that persons name is likely to be entered into the county database and the states criminal records database.

In the situation of criminal identity theft, the name and other identifying information such as Social Security number that appear in the data bases are that of the victim. The information is also likely to be entered into the Federal Bureau of Investigations (FBI) National Crime Information Center (NCIC) database (www.fbi.gov). Victims of criminal identity theft should assume that information is maintained in local, state, and federal criminal history files.

This presents a problem for the victim. The usual method of query by law enforcement into the various criminal justice databases is by name, date of birth, and/or drivers license number. Yet, law enforcement relies on the accuracy of such information for their investigations.

Once the victims name is recorded on a criminal record database, it will be unlikely that the victims name will be totally removed from the official record. Should the criminals true identity be determined, the victim should request a "key name" switch within the various criminal justice databases. This means that the record will reflect the criminals true name as the primary name and the victims name will appear as an alias (aka). Law enforcement insists on this record-keeping system because it reflects more accurately the criminal event. The dilemma for law enforcement and for the victim -- is when the criminals identity has not been determined.

The following are general steps you must take to clear your name of the erroneous criminal records attributed to you. Please note that these procedures are likely to vary somewhat from jurisdiction to jurisdiction.

  1. What is the first step the victim of criminal identity theft should take? Contact the arresting or citing law enforcement agency -- that is, the police or sheriffs department that originally arrested the person using your identity, or the court agency that issued the warrant for the arrest. Explain that this is a case of misidentification and that someone is using your personal information. Insist that you are the victim.
  2. Working with the arresting law enforcement agency: File an impersonation report. The law enforcement agency should first confirm your identity. This can be done by the police department taking a full set of your fingerprints, your photograph, and copying any photo identification documents such as a drivers license, passport, or U.S. legal presence documents.
  3. Once your identity has been established, the law enforcement agency should retrieve the booking record of the criminal event that you dispute. This will include the booking prints and booking photograph or the citation that may or may not have a thumbprint impression. Request that the law enforcement agency compare the prints and/or photographs to establish your innocence.

    Subsequently, the law enforcement agency should recall any warrants and issue a "clearance letter" or certificate of release (if you were arrested or booked) which you will need to keep in your possession at all times. Also, request that the law enforcement agency file with the district attorneys office and/or court of jurisdiction the follow-up investigation establishing your innocence which will entail an amended complaint being issued.

    Request that the law enforcement agency change all records from your name to the criminals true identity (if the true identity of the criminal is known). Some but not all of the levels that must be cleared include city, county, state, and federal databases.

  4. Working with any court involved in your matter: You will need to determine the specific law(s) in your state that enable you to clear your name in any court records. Usually, you will be required to file a declaration in conjunction with this procedure. The declaration should say that you are factually innocent of charges based upon the follow-up impersonation investigation by the law enforcement agency, or declarations, affidavits, or other material and relevant information. This action will change the name on the arrest records and the warrant of arrest to that of the criminal (if the true identity of the criminal is known). Your name will then be known as an alias of the criminal. The court should be requested to provide written verification for you to carry.

    The following is a description of the process you are likely to encounter when working with the court to clear your name of the erroneous criminal records that exist in your name. We recommend that you first file an impersonation report with the law enforcement agency of jurisdiction and allow that agency to conduct their follow-up investigation and submit their findings to the court. However, depending upon the law enforcement agencys readiness for investigating this type of crime (criminal identity theft) or the countys prescribed protocols, you may need to proceed to the court to expedite this process.

    If you discovered that there is an arrest warrant or criminal conviction, you may visit the courthouse in the jurisdiction where the arrest was made to schedule a hearing. The office that you visit within the courthouse will depend on whether the warrant is for a felony or misdemeanor crime and/or traffic violation.

    It is best to call the courthouse before making the trip so you can verify the specific office, the hours they are open to the public, and what documentation you need to bring with you. Also, obtain the warrant number and/or case number ("docket") of the court. Most likely you will be asked to bring photo identification documents such as a driver's license, passport, or U.S. legal presence documents.

    Tell the clerk there is a docket and/or warrant in your name and you dispute the criminal event that appears in your name. Depending upon the court of jurisdictions protocols, the clerk may copy your identification documents(s) and obtain other pertinent information from you. You will likely be instructed to have your fingerprints taken, which might be done at the District Attorneys office, sheriffs office, or at the courthouse itself.

    Arrangements will be made to schedule an "identity hearing" with the goal of obtaining a determination of factual innocence. At that hearing a judge will examine the evidence, whether it is proof you obtained on your own or subsequent police reports. If the court determines that you indeed are the wrong person named in the case/warrant, you will be issued a certificate that declares your innocence in this case.

    For this and any other "certificates of clearance" that you obtain, make several copies. Carry one with you at all times. File another at home in a secure place. Give others to relatives and/or friends who can be contacted in situations where you might have forgotten yours. Remember, this whole process can be complex. It involves the arresting agency, the court, and the administrators of the various criminal justice database systems including the motor vehicle databases. In the best-case scenario you might be able to completely separate your name from the criminal. In most cases, your name will remain a known alias of the criminal indefinitely.

  5. What if the victim of identity theft lives in one county and the criminal event including the arrest warrant, traffic citation, or criminal conviction originated from another county or state? Go to the police or sheriff department in your own jurisdiction or residency and request they take an impersonation report. Obtain a copy of the report and report number. Ask them to take the report under the appropriate state law for either identity theft or false use of your identity.

    In some states request your local law enforcement to take a "courtesy report." Mail the report, your fingerprints, your photograph, and any photo identification documents such as a drivers license, passport, or U.S. legal presence documents to the police department in the jurisdiction where the arrest warrant, traffic citation, or criminal conviction originated. Include any information you may have about the criminal, including but not limited to photograph, physical description, fingerprints, known alias and addresses.

    The best method to track and resolve your case is to establish direct communication with the assigned detective or investigator. Ask this person what additional steps you need to go through to obtain a letter of clearance from their agency. Also, consider that you may be requested to sign an affidavit under the penalty of perjury that you did not give any individual permission or authority to use your name, personal identifiers including birth date, drivers license number, and Social Security number. You may also be called to testify in court if the criminal is identified and prosecuted.

    You should also ask your local law enforcement agency if it can query your name through various law enforcement data bases (see item number 2a above) to see if there are any outstanding warrants, arrests, traffic violations, or convictions, that you do not yet know about. In some states, this step may be against system policies and/or may be unlawful California, for example. But in such situations, you can ask law enforcement if they will determine simply if a record exists under the victim's name/identity, even though they may be prohibited from releasing this data to you, the victim.

  6. Should the victim contact the Department (Bureau) of Motor Vehicles? Determine if your drivers license has been compromised in your state, or the state where the criminal appears to be committing crimes in your name. Order a certified copy of your drivers license record for your own review of possible discrepancies. The criminal might have fraudulently obtained a duplicate license under your name and license number but has his/her photograph on the license. Or the criminal may have applied for an original license in a particular state while you live in another state. Ask if your license record can be "flagged" for possible fraud.
  7. What if law enforcement determines the victims innocence but doesnt know the true name of the criminal? In the event that the criminals true name is not yet known, request the "key name," or primary name, be switched from your name to the name "John Doe" with your name noted as an alias.
  8. What if the police agency does not believe that a criminal committed the crimes and arrests the victim? The first step is to ask the police to compare the arrest information physical description, fingerprints, mug shots to you. This should help prove your innocence. You may have to establish an alibi for the criminal event committed by the criminal. Check your date book: Can employment records establish your innocence? Do you have any receipts that prove where you were at the time of the criminal event. Is there someone who can vouch for your presence elsewhere? If this fails, you should give serious consideration to hiring a criminal defense attorney.
  9. What if no fingerprints were taken by the arresting officer when the criminal was arrested? This often happens, especially with traffic violations and some misdemeanors like shoplifting. If the citation(s) does not contain a thumbprint, the law enforcement agency can compare your handwriting or signature to that of the citation. Or a vehicle records check can establish that you were not the registered owner of the vehicle that was associated with the citation. (Caution: Some criminals have registered vehicles using the victims name.) Or the traffic officer that issued the citation may be asked to look at a photo line-up to establish that you were not the person cited.
  10. Are there any agencies that might help the victim? Some states have developed substantial agency assistance for victims. Not all states have moved in the direction of the FTC.

    As an example, we can visit the state law in California. In California, Senate Bill 129, passed into law in 2000, established the nations first Office of Privacy Protection within the State Department of Consumer Affairs. It serves as the central clearinghouse where California consumers can file complaints and seek advice about identity theft and other privacy related issues.

    In 2000, the California Legislature passed another law to assist victims of criminal identity theft, AB 1862. This law establishes an Identity Theft Registry within the California Department of Justice as a companion database to the Criminal Identification Index (CII), discussed above. Bona fide victims of criminal identity theft can register information about their case with this database. If they are wrongfully arrested for the crimes of their criminal, they can direct the arresting officer to the database, accessible by a toll-free telephone number. If the victim applies for a job and knows that a background check will be conducted, he/she can instruct the employer to access the registry in order to learn that the applicant is not the individual committing the crime(s).

  11. When Does a Victim Consider Hiring an Attorney? Competent legal counsel can be invaluable in helping you to clear your name. We have talked with several victims who were unable to attract the attention of law enforcement and court personnel until an attorney (a criminal defense attorney) contacted them. We have also spoken with victims who have been able to navigate the criminal justice system without legal help. However, it took them considerable time and they felt vulnerable to being arrested for the crimes committed by the criminal.

    Your legal plan can provide exactly the type of initial analysis or preventative information one may need to either handle serious identity theft issues or prevent identity theft.

  12. Should the victim change their Social Security number or drivers license number? Not for most situations. Changing your Social Security number may cause more problems than it solves because you start with fresh records. You no longer have a financial history, work history, or even college records. A clean slate is considered negative by most lenders. Your old Social Security number links all these records.

    If a criminal in a scheme to issue bogus checks to businesses used your drivers license number fraudulently, the license number may have been recorded and flagged by one of the various check cashing verification companies. This may result in your check cashing privileges being denied. In this case, we recommend requesting a new license number. Be sure to contact the appropriate check verification service to clear the erroneous record.

  13. In addition to working with law enforcement and the court system, are there any other steps the victim should take to clear his/her name? Yes. You must contact any information brokers who may have purchased your wrongful criminal records from the courts and/or law enforcement agencies.

    Just like consumer reporting agencies compile credit data on consumers for the purpose of selling credit reports, information brokers compile criminal record information on individuals. They sell such information to employment background checkers, private investigators, attorneys, debt collectors, and others. Information brokers purchase such records from courts and law enforcement agencies throughout the country. Your wrongful criminal record is likely to have found its way to one or more of these databases. The problem is that it may be very difficult to determine which information brokers have obtained the erroneous information and to whom they may have sold this information.

    You should start by asking the court administrator to whom they sell their data. Similarly, ask the law enforcement agency to whom they sell arrest data, if anyone, and who else might have access to that data. You will want to immediately contact these entities in writing and request that they remove the erroneous information from their records. Also ask them to whom, if anyone, they have sold the information, or who else has access to their database. Do not be surprised if these companies are less than cooperative. If you encounter resistance, you may need to hire an attorney.

    Interestingly, the information broker industry is for all practical purposes, not regulated by federal or state law. There are no legally mandated standards that they must comply with. Their trade association, the Individual Reference Services Group, has established a voluntary set of privacy principles in conjunction with the Federal Trade Commission (www.ftc.gov). Unfortunately, these guidelines do not give victims of criminal identity theft meaningful access to the records about them.

  14. What additional considerations should I be aware of regarding employment? You may have learned about your wrongful criminal record from an employer who conducted a background check on you, and who has decided not to hire you because of the criminal record that was found. That employer is obligated to give you a copy of the report and tell you the name of the investigative company that compiled the report. This is a requirement of the federal Fair Credit Reporting Act, discussed in the next section.

    Once you have learned the name of the company that conducted the background check, you should contact them and ask which information broker data base(s) they used in compiling the report. Then you must contact those companies to remove the erroneous data. Again, this is a situation in which the assistance of a competent attorney is likely to be invaluable.

    If you are a victim of criminal identity theft, and if wrongful criminal records are preventing you from obtaining employment, you might want to request a criminal record clearance search through your state Department of Justice criminal records unit. In some state, you pay a minimal fee and complete an application and submit fingerprints to the state Department of Justice. Your local police department can assist you in preparing a set of prints that is acceptable to the DOJ.

    The DOJ then will conduct a criminal records search based on your fingerprints. If no matches are found, you will receive a letter from the DOJ stating that you have no criminal record based upon a fingerprint search. This could assist you in employment situations where wrongful criminal records are a barrier to finding a job. For links to the Attorneys General offices (DOJ) in the 50 states, visit the web site of the National Association of Attorneys General, www.naag.org.

  15. Are there any precautions individuals can take to prevent becoming a victim of criminal identity theft? There is no "early detection" system to alert victims of criminal identity theft. However, there are some things that you can do as precautions. Besides ordering your credit history from the three credit bureaus each year, periodically obtain a copy of your drivers license record from your local DMV. Also, order a copy of your Personal Earnings and Benefits Estimate Statement from the Social Security Administration.

    Most victims learn of the perils of criminal identity theft by indirect means. These include notice of citation(s) from the courts, collection agency calls, and notice of warrant(s) of arrest. During a routine traffic stop, a police officer might inform the victim that their license was suspended or revoked. Or the victim might be arrested for crimes committed by the criminal.

    We know of individuals who have been refused employment because of criminal identity theft. They learned of their wrongful criminal record from information obtained by the employer on the background check. Federal law requires employers to notify job applicants if they have been refused the job because of information on the background check. (For more information about the federal Fair Credit Reporting Act and "consumer investigative reports," see www.ftc.gov/bcp/conline/pubs/buspubs/credempl.htm.)

    We have learned of several instances where employers did not comply with this law, and left the criminal identity theft victims in the dark about their wrongful criminal records. If you have repeatedly been rejected for employment, you might want to conduct a background check on yourself. There are two ways to do this. First, you could hire an investigative firm that specializes in employment checks to conduct the search. Many such companies can be found in the Yellow Pages under "Investigators." Be sure to check for proper credentials such as a state-issued private investigator license. Ask if the investigator is a member of a professional or trade association. Costs and investigative methods vary, so do some comparative shopping.

Additional action steps:

We hope that the above steps will help guide you in dealing with the struggles of criminal identity theft. Remember that the preceding steps to correct the record within the criminal justice system will be different from state to state, and even from county to county. If you become a victim of criminal identity theft, we recommend that you file a complaint with the Federal Trade Commission so they may more accurately monitor such crimes.

Please also share your experience with us. We are compiling information from around the country on the steps victims must take to clear their names from wrongful criminal records. This guide has focused on procedures victims must take in California. We want to expand this guide to include information useful to victims in other states.

You might want to advocate for the improvement of laws regulating employment background checks and the information broker industry. We recommend that the Fair Credit Reporting Act be amended to improve employer disclosure requirements to those whose backgrounds they are investigating. (FCRA, 15 USC sec. 1681, text available at www.ftc.gov) Victims of criminal identity theft should not be left unaware of the reason they are being denied employment.

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