The Journal of The DuPage County Bar Association

Identity Theft That Causes a False Criminal Record: How to Assist Clients that are Victims of Criminal Identity Theft

With the ever present danger of identity theft, people must be vigilant in the protection of their information and be aware of dangers beyond just someone tampering with their personal information for financial gain only. Another form of identity theft that is increasing at an alarming rate is criminal identity theft, or the deliberate use of someone else’s personal identifying information without his or her permission to impersonate them and commit deception or other crimes. The person whose identity has been assumed fraudulently by another may suffer adverse consequences, especially if they are held responsible for the perpetrator's actions.

Attorneys must look to any available avenues to assist clients when they are victimized, as it can be difficult for the victim of criminal identity theft to recognize exactly what is going on and it can be exceedingly difficult to clear their marred criminal record, therefore leaving them feeling violated and helpless. Following are some examples of scenarios showcasing aspects of this increasing area of concern and this article outlines how to formulate a plan to assist clients that are victims of such deception.

Scenario I:

One day you get a call from a Client or prospective Client. He or she was driving along some evening, possibly coming home with groceries, when all of a sudden the flashing lights of a squad car came up behind their car. It seemed that law enforcement was attempting what appeared to be a routine traffic stop. At the time Client thinks, “I wasn’t speeding, I stopped for that traffic light, I know I didn’t miss that stop sign, my plates are current, where’s that darn insurance card?!”

Client dutifully pulled over and waited for the officer to walk up to his window. However, what came next from the police was loud, verbal direction to show his hands, get out of the car slowly, place hands on the hood, etc. Thereafter Client spent the next hour or more, either right there in the street or otherwise down at the police station, trying to prove he is and that he does not have a warrant out for his arrest.

Worse than this scenario, consider a variation where Client receives a knock at his hotel room in the middle of the night. Seems that his license plate was “run” in the parking lot by local law enforcement and it showed a warrant for his arrest. Now the police are at his hotel room door and looking to take him into custody.

By the time the Client comes to see you he will likely have a pretty good idea who used his name as an alias name. That person will be the person who is the actual person that law enforcement seeks pursuant to that person’s conduct and for which there is an outstanding criminal warrant; unfortunately your Client’s name will be reflected as a known alias. That person that used your Client’s identity will likely be someone Client knows and it is likely a family member, a friend, an in-law, etc. If Client knows where that person is and has no reservation about reporting same to the authorities, he should do so and hopefully the properly served warrant will execute and your Client will be exonerated. However that may not occur.

The Steps to Take:

If Client does not know the whereabouts of the warrant subject, short of directing your Client to change his name, you will need to take steps to try and get that warrant quashed. Firstly, find out the status, details and case number associated with the warrant(s) through whatever means you have at your disposal. Next, prepare a “Petition to Intervene and Motion to Quash” citing Illinois Code of Civil Procedure §5/2-408 (735 ILCS 5/2-408). Yes, the Code of Civil Procedure. While 735 ILCS 5/2-408 is ordinarily used for intervention within civil proceedings, such is also used as a proper method for intervention within criminal proceedings.1

Said petition needs to establish a basis for intervention and relief. Identify that your Client is a resident of the State of Illinois, a resident of the relevant county, and as such a “person” of the State of Illinois. Next, further identify that on information and belief there is currently a warrant for arrest pending against the real subject of the warrant and that it is not proper against the movant / your Client. State the relationship between your Client and the real subject of the warrant.

Your petition should identify that on one or more occurrences, prior to issuance of said warrant, that the real subject of the warrant usurped Client’s identity resulting in Client’s name being identified as an alias of the real subject. This is an act of identity theft. As a direct result of the identity theft, the real subject’s use of Client’s name as an alias name causes Client to be the subject of investigation and inquiry by law enforcement whom believe they have apprehended the real subject when encountering Client.

Your Client has been deprived of his personal liberty. Such deprivations of Client’s personal liberty may include multiple incidents. You should identify them in affidavit form and which you will attach to the pleading. Identify how many times Client has been pulled over, how much time he has spent at the police station, how many times he has been temporarily detained by the police.

Further, each time your Client is detained by law enforcement, and each time his license plate is randomly checked, he is bound by the pending charges and warrant because your Client has suffered the criminal identity theft. Yet your Client’s rights as a “person” of the State of Illinois are not being properly represented by the state, notwithstanding efforts by Client both individually and through your office to resolve the situation informally (which will also be outlined in Affidavit form). Additionally, if you or your client has been able to determine the whereabouts of the real subject (for example that the real subject of the warrant is in custody outside the jurisdiction or that he is deceased) then certified copies of record in support thereof need to be included with your petition. The prayer for relief will request granting of the Petition to Intervene and further request quashing of the pending warrant.

At a hearing on your petition, the necessity of testimony from your Client is dependent on the circumstance. For example, if through original certified public records tendered to the court, you are able to show the real subject of the warrant is deceased it is unlikely that you will need testimony from the Client.

Remember, regardless of the status of the real subject (incarcerated elsewhere, deceased, etc.), you need to get this in front of the court at which time you will be able to argue on behalf of your Client. The ultimate result at hearing will depend on the facts of your particular case but your ultimate goal, regardless of how it looks on the court order, is having the warrant quashed.

Scenario II:

You get call from another Client with another report of a different series of events. Client just received a “Notice to Appear” and a “Petition to Revoke Court Supervision” for failing to pay a traffic ticket fine as part of a guilty plea in a traffic case. On further inquiry with the local office of the Illinois Secretary of State, Client finds out he has a traffic ticket conviction in a different county on his driving record. However, perhaps your Client has never even been pulled over by the police of that county.

Unlike Scenario I, your Client is less likely to know who is passing themselves off as your Client at traffic stops. In this scenario, a police officer likely simply accepted the subject’s proffered identify when that subject said he did not have his driver’s license on his person. However, in that instance where a police officer accepted the excuse of the real subject for not producing a state issued identification, that officer would at minimum still require the subject operator to provide a driver’s license (DL) number and a description of the vehicle; that information will appear on the citation.

The first step in this scenario is for you or your Client to obtain a copy of Client’s driving record, the court version, which has to be requested specifically from your local Illinois Secretary of State driver’s license facility. It will show everything regarding the Client’s DL to date. Then obtain copies of all court records from the traffic cases listed. The records will show dates, times, counties and vehicles involved in the traffic stop. This information, along with whoever would be close enough to your Client to have memorized his DL number, will narrow down the possible identity of the person who perpetrated the fraud. Remember though, your goal is not prosecution of criminal action, your goal is to clear your Client’s driving record.

Thereafter prepare a “Motion to Vacate and Dismiss” citing Illinois Code of Civil Procedure §2-301 and 1-1401 (735 ILCS 5/2-301 & 735 ILCS 5/2-1401). Yes, just as in the scenario before: the Code of Civil Procedure. Although a section 2-1401 petition is usually characterized as a civil remedy, its remedial powers extend to criminal cases.2 §2-301 requires that prior to the filing of any other pleading or motion, a party may object to the court's jurisdiction over the party's person on the ground of insufficiency of process or insufficiency of service of process. You are filing a motion to dismiss the entire proceeding or any cause of action involved in the proceeding by filing a motion to quash service of process. As it relates to your Client, he has never been served.

In addition to statutory and case citation, your motion should include a recitation of all details contained in the traffic citation highlighting the date, time and location of the citation. Also include an affidavit containing all information and documentary support necessary, if possible, to reflect that your Client was nowhere near the traffic stop and could not have been the person who committed the cited violation. Include in your argument that judgment was entered absent any jurisdiction over petitioner, coupled with said judgment having been fraudulently obtained, that said judgment is void as to your Client, the petitioner. At hearing thereon, your Client should be ready to appear and give testimony if needed.

Subsequent to filing your petition, notify the Secretary of State of Illinois Fraud Unit to request what is called a “protective stop” on your Client’s DL. Your request will include a copy of what you have filed with the court and request a “Law Enforcement Protective Stop” designation be applied to your Client’s DL. Once applied, in the event of a police stop wherein a person asserts your Client’s name, regardless of what the driver may tell the police officer, the driver will be required to produce the actual physical DL.

Criminal identity theft may be far from the most common type of identity theft, but while it is lesser known it causes significant damage. Victims of criminal identity theft find themselves in unique situations, and attorneys must look to any available avenues to assist clients by providing them the rights and remedies available under all available laws.

1. See People v. Pelo, 894 N.E.2d 415, 384 Ill. App.3d 776 (4th Dist. 2008).
2. People v. Haynes, 192 Ill. 2d 437, 460, 737 N.E.2d 169, 182 (IL. 2000).

Mike is a partner with the law firm of Hupp, Lanuti, Irion & Burton located in Ottawa, Illinois. Born in Milwaukee, Wisconsin, he moved to DuPage County, Illinois in 1977. Mike graduated from the University of Illinois at Chicago with a Bachelor of Science Degree in Criminal Justice and he earned a Juris Doctor degree from the John Marshall Law School in Chicago.