An Act To Aid Victims of Identity Theft in Securing a Police Report and To Aid Victims in Court Proceedings When Their Identities Have Been Stolen and Falsely Used

Sec. 1. 10 MRSA §1350-B  is enacted to read:

§ 1350-B.  Reporting of identity theft; mandatory police report and possible investigation

A person who knows or reasonably believes that the person's personal information has been misused in violation of Title 17-A, section 905-A may report the misuse and obtain a police report by contacting the local law enforcement agency that has jurisdiction over the person's actual residence or place of business. That law enforcement agency shall make a police report of the matter and provide the complainant with a copy of that report. At its discretion, the law enforcement agency may undertake an investigation of the matter or refer it to another law enforcement agency. If the suspected crime was committed in a jurisdiction outside of the State, the local law enforcement agency shall refer the report to the law enforcement agency where the suspected crime was committed.

Sec. 2. 15 MRSA c. 308  is enacted to read:

CHAPTER 308

POST-JUDGMENT MOTION When PERSON'S IDENTITY HAS BEEN STOLEN AND USED IN A CRIMINAL, CIVIL VIOLATION OR TRAFFIC INFRACTION PROCEEDING

§ 2181.  Application

This chapter is not intended to provide relief to a person who has stolen another person's identity and falsely used it in a criminal, civil violation or traffic infraction proceeding.

§ 2182.  Post-judgment motion for determination of factual innocence and correction of record

§ 2183.  Motion and hearing; process

§ 2184.  Review of determination of factual innocence; review of a subsequent vacating of determination

A final judgment entered under section 2183, subsection 5 or 7 may be reviewed by the Supreme Judicial Court sitting as the Law Court.

summary

The bill is proposed by the Criminal Law Advisory Commission.

This bill allows a person who is a victim of identity theft to make a report to the police and obtain a copy of the police report.

The bill provides for a simple, expedient and comprehensive post-judgment method of relief when a person's identity has been stolen and falsely used by another person in a criminal proceeding, a civil violation proceeding or a traffic infraction proceeding. It is immaterial as to what the final outcome is in that proceeding. The relief offered is a court determination of factual innocence and the correction of the court records and related criminal justice agency records. This bill does not provide relief to a person who has stolen another person's identity and falsely used in it a criminal, civil violation or traffic infraction proceeding.

The relief process commences with the filing of a post-judgment motion in the underlying criminal, civil violation or traffic infraction proceeding seeking a court determination of factual innocence and the correction of the court records and related criminal justice agency records. A person who reasonably believes that the person's identity has been stolen and falsely used by another person may file the post-judgment motion or an attorney for the State or the court may file the motion on the person's behalf. There is a one-year statute of limitations on the filing of a motion. Once filed, a judge or justice must be specially assigned, and that judge or justice must determine upon whom and how service of the motion is to be made and enter an order in this regard. If the judge or justice finds the person to be indigent, the court may appoint counsel for the person at any time during the proceedings. A hearing on a timely motion must be held by the judge or justice thereafter. The Maine Rules of Evidence do not apply, and evidence presented at the hearing may include testimony, affidavits and other reliable hearsay evidence as permitted by the judge or justice. At the hearing the burden is on the movant to establish by clear and convincing evidence relative to a criminal proceeding or by a preponderance of the evidence relative to a civil violation or traffic infraction proceeding that the person is factually innocent of that crime, civil violation or traffic infraction. If the movant satisfies the appropriate burden of proof, the judge or justice must find the person factually innocent of that crime, civil violation or traffic infraction and issue an order certifying this determination. If the movant fails to satisfy the appropriate burden of proof, the judge or justice must deny the motion and issue an order certifying this determination. Under either outcome, the order must be in writing and must contain findings of fact supporting the judge's or justice's decision granting or denying the motion. A copy of that written order must be provided to the person. If the judge or justice grants the motion, the judge or justice must additionally determine what court records and related criminal justice records require correction and enter a written order specifying the corrections to be made in the court records and the records of each of the related criminal justice agencies.

If, subsequent to granting relief, a judge or justice learns that the motion or information submitted in support of the motion may contain material misrepresentation or fraud, the judge or justice may, after proper notice, hold a hearing. At the conclusion of the hearing, if the judge or justice finds by a preponderance of the evidence the existence of material misrepresentation or fraud, the judge or justice may, by written order, vacate the earlier order certifying a determination of factual innocence and modify accordingly any record correction made earlier. The written order must contain findings of fact supporting the judge's or justice's decision to vacate or not to vacate.

If the person or the State is aggrieved by a final judgment, the person or the State may appeal to the Law Court. The person's appeal, unlike that of the State, is not of right.