(1) A person whose identifying
information has been mistakenly associated with an arrest, summons, summons and
complaint, felony complaint, information, indictment, or conviction is a victim of
identity theft for the purposes of this section. A victim of identify theft may proceed
either through the judicial process in subsection (2) of this section or the Colorado
bureau of investigation process in subsection (3) of this section.
(2) (a) If a criminal charge is not pending, a victim of identity theft may, with
notice to the prosecutor, petition the court with jurisdiction over the arrest,
summons, summons and complaint, felony complaint, information, indictment, or
conviction to judicially determine the person's factual innocence. Alternatively, the
court, on its own motion, may make such a determination in the case. If a criminal
charge is pending, the prosecuting attorney may request the court to make such a
determination. A judicial determination of factual innocence made pursuant to this
section may be determined, with or without a hearing, upon declarations, affidavits,
or police reports or upon any other relevant, material, reliable information
submitted by the parties and records of the court.
(b) If the court determines that there is no reasonable cause to believe that a
victim of identity theft committed the offense for which the victim's identity has
been mistakenly associated with an arrest, summons, summons and complaint,
felony complaint, information, indictment, or conviction, the court shall find the
victim factually innocent of that offense. If the victim is found factually innocent,
the court shall issue an order certifying this determination.
(c) After the court has determined that a person is factually innocent, the
court shall provide the Colorado bureau of investigation with the order of factual
innocence. Upon receipt of the order of factual innocence, the Colorado bureau of
investigation shall modify the victim of identity theft's law enforcement-only and
public criminal history record accordingly.
(d) A court that issues a determination of factual innocence pursuant to this
section may at any time vacate that determination if the petition, or information
submitted in support of the petition, contains material misrepresentation or fraud. If
the court vacates a determination of factual innocence, the court shall issue an
order rescinding any orders made pursuant to this subsection (2).
(2.5) (a) A person who has had his or her identity stolen or used that is not
associated with an arrest, summons, summons and complaint, felony complaint,
information, indictment, or conviction may petition the district court in the county
where the person lives for an order of factual innocence. A judicial determination of
factual innocence made pursuant to this section may be determined, with or
without a hearing, upon declarations, affidavits, or any other relevant, material,
reliable information submitted by the parties and records of the court.
(b) If the court finds that the person's identity was stolen or used by another,
the court shall issue an order certifying this determination.
(c) A court that issues a determination of factual innocence pursuant to this
subsection (2.5) may at any time vacate that determination if the petition, or
information submitted in support of the petition, contains material
misrepresentation or fraud. If the court vacates a determination of factual
innocence, the court shall issue an order rescinding any orders made pursuant to
this subsection (2.5).
(3) (a) A victim of identity theft may contact the Colorado bureau of
investigation and submit a records challenge to one or more criminal charges the
victim of identity theft is alleged to have committed. The victim of identity theft
shall include a copy of his or her fingerprints with the records challenge.
(b) (I) A Colorado bureau of investigation fingerprint examiner shall compare
the submitted fingerprints in the records challenge to the fingerprints obtained in
each criminal case that the victim of identity theft is making a records challenge.
(II) The fingerprint examiner shall determine either that the fingerprints
submitted in the records challenge are not the same as the individual arrested or
that they are the same as the individual arrested.
(III) If the fingerprint examiner determines the fingerprints submitted in the
fingerprint challenge are not the same as the individual arrested, the Colorado
bureau of investigation shall issue a letter of misidentification and shall modify the
victim of identity theft's law enforcement-only and public criminal history record
accordingly. The letter of misidentification shall state the holder of the letter is a
victim of identity theft in each criminal case identified by the letter.
(4) A person who knows or reasonably suspects that his or her identifying
information has been unlawfully used by another person may initiate a law
enforcement investigation by contacting the local law enforcement agency that has
jurisdiction over the victim's residence or over the place where a crime was
committed. Such agency shall take a police report of the matter, provide the
complainant with a copy of that report, and begin an investigation of the facts. If
the suspected crime was committed in a different jurisdiction, the local law
enforcement agency may refer the matter to the local law enforcement agency
where the suspected crime was committed for investigation of the facts.
(5) For the purposes of this section:
(a) Biometric data means data, such as fingerprints, voice prints, or retina
and iris prints that capture, represent, or enable the reproduction of the unique
physical attributes of an individual.
(b) Identifying information means information that, alone or in conjunction
with other information, identifies an individual, including but not limited to such
individual's:
(I) Name;
(II) Address;
(III) Birth date;
(IV) Telephone, social security, taxpayer identification, driver's license,
identification card, alien registration, government passport, or checking, savings, or
deposit account number;
(V) Biometric data;
(VI) Unique electronic identification device; and
(VII) Telecommunication identifying device.
(c) Telecommunication identifying device means a number, code, or
magnetic or electronic device that enables the holder to use telecommunications
technology to access an account; obtain money, goods, or services; or transfer
funds.