CREDIT CARD FRAUD: POSSESSING CARD WITHOUT CARDHOLDER'S CONSENT
In both Las Vegas and throughout Nevada, it is a felony for a person to possess the credit or debit card of another person without that person's consent. Specifically, NRS 205.690 makes it a felony offense to steal a credit/debit card, receive a stolen card, or to possess a card with the intent to use it fraudulently.
Being convicted of credit card fraud or any other felony can result in serious consequences, including prison time, fines, and the loss of civil liberties. Read below to learn more about the crime of possessing a credit or debit card without the cardholder's consent and how a criminal defense attorney can help you if you have been charged with this offense.
CREDIT OR DEBIT CARD DEFINED
NRS 205.690 applies to both credit and debit cards. While credit and debit cards look identical, a debit card is directly tied to a person's bank account whereas a credit card is tied to a person's line of credit. But a person doesn't need to be in possession of the actual card to be charged with this offense. NRS 205.690(5)(a) and (b) also make it illegal to possess credit or debit card information without the cardholder's consent. So, for example, you don't actually have someone else's physical card but have instead copied down the card number (without consent), you could be in violation of this statute.
As stated above, it is not necessary for a person to possess the physical debit or credit card in question in order to violate this statute. Possession of the card number is sufficient to satisfy the element of possession.
Additionally, possession can be actual or
constructive. Actual possession means the card (or card number) is found on your person—in your pocket, for instance. Constructive possession means that the card (or number) is not found on your body, but in some place that you exercise dominion or control over. So for example, if a card is found in your car or apartment, you could be charged with possessing a credit card for fraudulent purposes under a theory of constructive possession.
One type of constructive possession is joint possession, which allows prosecutors to charge multiple people with constructive possession of a single credit card, under the theory that each person charged supposedly exercised equal dominion or control over the card. Possession of this type is usually charged in cases where multiple people are found in a car or apartment and the card or cards are not found in the sole possession of one person.
STEALING A CARD OR RECEVING A STOLEN CARD
NRS 205.690 prohibits two distinct types of acts related to credit/debit cards. The first type, under N.R.S. 205.690(1), is when a person steals a card or receives a stolen card with knowledge that the card is stolen.
- Stealing a Credit or Debit Card
Specifically, NRS 205.690(1) first prohibits "steal[ing], tak[ing] or remov[ing] a credit card or debit card from the person, possession, custody or control of another without the cardholder's consent." This covers all instances where it can be proven that someone actually stole someone else's credit card.
For the purposes of this section, the card need not have been stolen directly from the cardholder's person. The card need only be "removed" from the "control" of the cardholder without his consent. So, for example, taking a credit card out of a wallet that is found on the street might qualify—if the person taking the card has the intent to keep the card instead of returning it to the cardholder or to the police.
- Receiving a Stolen Credit or Debit Card
NRS 205.690(1) also makes it illegal for a person to receive a credit or debit card that has been obtained without the cardholder's consent, when the person receives that stolen card with the intent to use, sell or otherwise transfer that card to anyone other than the cardholder or the institution that issued the card. In other words, if you receive a stolen card for fraudulent purposes, you have violated this statute.
Keep in mind, however, that the statute requires that the person receiving the card have knowledge that the card was obtained without the cardholder's consent. This requirement of knowledge is meant to protect innocent people who, for example, inadvertently accept a stolen credit card as payment for goods or services.
POSSESSION OF CARD WITH INTENT TO DEFRAUD
Whereas subsection 1 prohibits stealing or receiving a stolen card, NRS 205.690(2) prohibits possession of a credit or debit card without the cardholder's consent—when the person in possession of the card has some
fraudulent intent. Specifically, NRS 205.690(2) prohibits "possess[ing] a credit card or debit card without the consent of the cardholder and with the intent to circulate, use, sell or transfer the credit card or debit card with the intent to defraud."
This is the most common factual scenario in credit card fraud cases. A credit card is found in a person's possession, but there is no proof that the person actually stole the card or received the card knowing it was stolen. Thus, the prosecutor must prove that the person possessed the card with the intent to fraudulently use it. Keep in mind, it is not necessary that the defendant actually make use of the card by trying to make purchases with it—although use certainly would tend to be strong evidence of fraudulent intent.
MULTIPLE CARDS: PRESUMPTION OF INTENT
As stated above, ordinarily the prosecutor must prove that a person possessed a credit or debit card with fraudulent intent or received a stolen card with knowledge that the card was stolen. However, NRS 205.690(3) allows a presumption of knowledge or fraudulent intent when a person possesses multiple cards. Specifically, NRS 205.690(3) provides for a presumption of knowledge and intent on the part of any person who is found to have in his possession or control two or more credit or debit cards issued in the name of another person. This means that two elements – knowledge and intent – that the State would normally have to prove beyond a reasonable doubt are now presumed to be true, so the State need not put on any evidence of either of these elements in order to prove their case. The jury could be instructed to presume that the person had knowledge that the cards were obtained without the cardholder's consent and that the person intended to circulate, use, sell or transfer them with the intent to defraud.
POTENTIAL CROSSOVER WITH BURGLARY
Any time a person goes into a business with a stolen credit or debit card and intends to use the card to purchase any goods or services, that person is guilty of not only the instant offense but also of burglary. NRS 205.060 defines burglary as the entry, day or night, into any building or structure—including stores and restaurants—with the intent to commit larceny or any felony, or to obtain money or property by false pretenses. Please see our page on burglary for more information on this offense and its potential penalties.
For the purposes of punishment, it does not matter whether the person merely possessed the card or whether he used it or sold it to someone else. Violation of this statute in any manner is a Category D felony and is punishable by a prison term of not less than 1 or more than 4 years and a fine of up to $5,000.
The court can also order the defendant to pay restitution, which means that a person convicted of credit card fraud would have to reimburse the victim or victims for any losses they suffered as a result of the defendant's actions. This would normally include having to pay back anything that was charged on the victim's card.
The good news is that this charge is a probationable offense, which means that it is possible to avoid prison time altogether. Whether a person will be granted probation depends on a number of factors. A criminal defense lawyer will know how best to handle your case and the specific facts involved.
DEFENDING CREDIT CARD FRAUD CASES
The criminal justice system can be overwhelming. If you have been charged with possessing a credit or debit card without the cardholder's consent, you should speak to a criminal defense attorney as soon as possible. There may be strong defenses available to you, depending on the facts of your case. Even when the prosecutor seems to have a strong case against you, a defense lawyer can successfully negotiate your case, and in many instances avoid the harshest criminal penalties. The decision of whether to go to trial or to accept negotiations is sometimes a difficult one, and having a skilled attorney to help guide you through the process is critical.
I have successfully represented many people charged with debit or credit card fraud in Las Vegas and throughout Clark County, Nevada. If you have been charged with this offense, call me immediately for a free consultation.
By Michael Pandullo