Fraudulent use of a financial transaction device (more commonly known as "credit card fraud") is a serious charge with harsh penalties. If you have been charged with this offense or under investigation, you need the representation of an experienced Michigan criminal defense attorney who can help you avoid jail, reduce the charges, or get the matter dismissed.
What the Prosecutor Must Prove
While it is commonly referred to as credit card fraud, the charge under MCL 750.157n actually involves all financial transaction cards including credit, debit, and gift cards. It is a theft crime which carries a maximum penalty of four years in prison, plus fines, court costs, and restitution.
To be convicted of the offense, the prosecution will have to prove that you possessed, used, sold, or altered a financial transaction device with the intent of fraudulently obtaining money, refunds, or credit for for goods or services. Simply being in possession of an account number or personal identification number (PIN) can be enough to get you charged and convicted.
The crux of these cases often hinge upon the "knowing" and "intent" elements. It is often indisputable that the accused was in possession of or used the credit card in question. The big hurdle for the prosecutor to overcome is can he prove that the accused "knowingly" possessed the credit card with the "intent" to somehow defraud the card holder. Absent a confession, this usually has to be inferred from circumstantial evidence. A common defense is that the accused had permission or believed he had permission to use the card either through conversations or past occurrences. It is not uncommon for the accused to be facing criminal charges based on a genuine misunderstanding or because a spiteful partner in a dating relationship gone sour decided to to extract revenge by falsely reporting a card stolen or falsely telling police that that the accused did not have their permission to use the card.
Lesser Offenses That Can be Charged, Part I
Revoked or Canceled Financial Transaction Device
If the amount of money, good, or services that were fraudulently obtained is less than $100, it is a misdemeanor punishable by up to 93 days in jail and/or $500 in fines. If the accused has one or more prior conviction for this offense, the maximum punishment is elevated to up to one year in jail and $1,000 in fines.
If the amount of money, good, or services that were fraudulently obtained is between $100-500 and it is a first or second offense, it is a misdemeanor punishable by up to one year in jail plus $1,000 in fines or three times the value of the defrauded amount, whichever is greater. If the accused has two or more prior convictions for this offense, the maximum punishment is elevated to a high court misdemeanor of up to two years in prison or $2,000 in fines.
Lesser Offenses That Can Be Charged, Part II
If the amount of money, good, or services that were fraudulently obtained is greater than $500, it is a high court misdemeanor punishable by up to two years in prison and $2,000 in fines or three times the value of the defrauded amount, whichever is greater.
Note: the value of the property pursuant to a scheme or course of conduct during 12-month period may be aggregated to determine the total value.
Sales to or Services Performed for Violators
If the accused knowingly sales or delivers goods or renders service to a person knowing that he is committing credit card fraud, that person is guilty of a felony.
Causing the Cardholder to be Charged or Overcharged
If the card is presented by the card holder for a lawful transaction, but the accused intentionally causes the cardholder to be charged for a purchase not authorized or overcharges the cardholder, that person is guilty of a felony.
Lesser Offenses That Can Be Charged, Part III
False Statement of Identify for Purpose of Procuring the Issuance a Financial Transaction Device
If the accused knowingly and with the intent to defraud (directly or indirectly) makes a false statement in writing regarding his identify or the identity of any other person for the purpose of procuring the issuance of a financial transaction device is guilty of a felony. In other words, getting a credit card by lying about your name.
Fraudulent Use of a Financial Transaction Device to Withdraw or Transfer Funds in Violation of Contractual Limitations
If the accused uses a card and exceeds the amount imposed upon him or exceeds the imposed upon frequency of withdrawals or transfers an amount exceeding the funds on deposit, is guilty of a crime as follows;
If the amount of the funds is less than $200, a misdemeanor punishable by up to 93 days in jail, $500 in fines or three times the value of the funds, whichever is greater
If the amount of the funds is greater than $200 but less than $1,000 or the accused has one or more prior convictions for this offense, a misdemeanor punishable by up to one year in jail, $2,000 in fines or three times the value of the funds, whichever is greater.
If the amount of the funds is greater than $1,000 but less than $20,000 or the accused has two or more prior convictions for this offense, a felony punishable by up to 10 years in prison, $15,000 in fines or three times the value.
Notice of Enhanced Sentence
If the prosecutor wishes to seek an enhanced sentence with a prior conviction, notice of those prior convictions and the dates and locations for those convictions must be listed in the complaint.
How We Approach Your Case
If you have been charged or accused of fraudulently using a financial transaction device, you need an experienced criminal attorney on your side. Make sure you do not make any statements to the police or anyone else before consulting with a lawyer. If you have been arrested, your first court appearance will be an arraignment where we will argue for a reasonable bond. If the charge is a felony, you are entitled to have a preliminary examination within 14 days of your arraignment. We will help you decide whether it is in your best interests to have the exam or waive your right to the exam. Sometimes it is necessary to establish testimony through cross examination that can be used later on at the trial court for motions to reduce or dismiss the charges. If substantial weaknesses in the case are demonstrated, that can be used as leverage with the prosecutor during plea negotiations for a more favorable resolution.
What Are the Likely Sentences and Possible Outcomes
This is always case specific and there is no generic answer that can be given. It will depend on if the accused has any prior criminal history, what the relationship between the accused and victim is, the amount of money involved, the facts of the case, the strengthens and weaknesses of the case, and how hard the victim is pressing the matter. If it is your first offense, a misdemeanor plea is quite likely.
You may be able to secure a sentencing agreement through a Killebrew agreement with the prosecutor or a Cobbs agreement with the judge which can eliminate the option or jail or limit it. You may also qualify for a diversion program or deferred sentencing such as Holmes Youthful Trainee Act status (HYTA) which would prevent the accused of having a public record of this offense. Another important point is to make sure the amount of restitution is correct and if necessary, insist on having a hearing to determine the correct restitution amount.
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