Colorado § 18-5-702 - Unauthorized use of a financial transaction device.

§ 18-5-702. Unauthorized use of a financial transaction device.

(1) A person commits unauthorized use of a financial transaction device if he uses such device for the purpose of obtaining cash, credit, property, or services or for making financial payment, with intent to defraud, and with notice that either:

(a) The financial transaction device has expired, has been revoked, or has been canceled; or

(b) For any reason his use of the financial transaction device is unauthorized either by the issuer thereof or by the account holder.

(2) For purposes of paragraphs (a) and (b) of subsection (1) of this section, "notice" includes either notice given in person or notice given in writing to the account holder. The sending of a notice in writing by registered or certified mail, return receipt requested, duly stamped and addressed to such account holder at his last address known to the issuer, evidenced by a signed returned receipt signed by the account holder, is prima facie evidence that the notice was received.

(3) Unauthorized use of a financial transaction device is:

(a) (Deleted by amendment, L. 2007, p. 1695, § 13, effective July 1, 2007.)

(b) Repealed.

(c) A petty offense if the value of the cash, credit, property, or services obtained or of the financial payments made is less than three hundred dollars;

(d) A class 2 misdemeanor if the value of the cash, credit, property, or services obtained or of the financial payments made is three hundred dollars or more but less than one thousand dollars;

(e) A class 1 misdemeanor if the value of the cash, credit, property, or services obtained or of the financial payments made is one thousand dollars or more but less than two thousand dollars;

(f) A class 6 felony if the value of the cash, credit, property, or services obtained or of the financial payments made is two thousand dollars or more but less than five thousand dollars;

(g) A class 5 felony if the value of the cash, credit, property, or services obtained or of the financial payments made is five thousand dollars or more but less than twenty thousand dollars;

(h) A class 4 felony if the value of the cash, credit, property, or services obtained or of the financial payments made is twenty thousand dollars or more but less than one hundred thousand dollars;

(i) A class 3 felony if the value of the cash, credit, property, or services obtained or of the financial payments made is one hundred thousand dollars or more but less than one million dollars; and

(j) A class 2 felony if the value of the cash, credit, property, or services obtained or of the financial payments made is one million dollars or more.

(4) The value of the cash, credit, property, or services obtained and the financial payments made shall be the total value of the cash, credit, property, or services obtained or financial payments made by unauthorized use of a single financial transaction device within a six-month period from the date of the first unauthorized use.

Source: L. 84: Entire part added, p. 549, § 2, effective July 1; (3)(b) and (3)(c) amended, p. 539, § 16, effective July 1, 1985. L. 89: (3)(c) amended, p. 837, § 67, effective July 1. L. 92: (3) amended, p. 436, § 8, effective April 10. L. 98: (3)(b) and (3)(c) amended, p. 1439, § 17, effective July 1; (3)(b) and (3)(c) amended, p. 797, § 11, effective July 1. L. 2007: (3) amended, p. 1695, § 13, effective July 1. L. 2014: (3) amended, (HB 14-1266), ch. 155, p. 538, § 4, effective August 6. L. 2021: (3)(c), (3)(d), and (3)(e) amended, (SB 21-271), ch. 462, p. 3189, § 251, effective March 1, 2022; (3)(b)(II) added by revision, (SB 21-271), ch. 462, pp. 3189, 3331, §§ 251, 803.

Editor's note: Subsection (3)(b)(II) provided for the repeal of subsection (3)(b), effective March 1, 2022. (See L. 2021, p. 3189, 3331.)

Cross references: For the legislative declaration contained in the 2007 act amending subsection (3), see section 1 of chapter 384, Session Laws of Colorado 2007.

ANNOTATION

Defendant's equal protection rights not violated by defendant's identity theft conviction. The unauthorized use of a financial transaction device statute and the identity theft statute do not prohibit identical conduct while imposing different penalties. Unlike the unauthorized use of a financial transaction device statute, the conviction for identity theft required the jury to find that the credit card belonged to the victim and not the defendant. People v. Jauch, 2013 COA 127, 411 P.3d 53; People v. Trujillo, 2015 COA 22, 369 P.3d 693.

Neither this statute nor the identity theft statute imposes an affirmative duty that the defendant obtain the victim's consent before using the victim's financial device. People v. Brennan, 2025 COA 68, 577 P.3d 62.

Fraudulent use of credit card. In prosecution based upon fraudulent use of another's credit card, fact that defendant was charged under § 18-5-103 rather than this more specific section was not error requiring dismissal. People v. Ortega, 181 Colo. 223, 508 P.2d 784 (1973) (decided under former § 40-14-21, C.R.S. 1963).

Notice requirement applies to the account holder or to one in possession of the financial transaction device with permission of the account holder and not to one using an allegedly lost or stolen device. Therefore, the prosecution was not required to prove that the defendant who had used a lost or stolen device had been given notice that his use was not authorized in order to get a conviction. People v. Pipkin, 762 P.2d 736 (Colo. App. 1988).

Requirement that defendant receive notice that the "device has expired, has been revoked, or has been cancelled" is not limited to notice in person or in writing. The phrase "includes either notice given in person or notice given in writing" is an example of the types of notice permissible under the statute. "Includes" is a term of extension and illustration, not exhaustion or exclusion. People v. Patton, 2016 COA 187, 425 P.3d 1152, aff'd on other grounds, 2018 CO 67, 421 P.3d 184.

Trial court did not err in refusing to give jury instruction defining the affirmative defense of consent where proof of the elements of the charged offense necessarily required disproof of the issues raised by said defense. People v. Bush, 948 P.2d 16 (Colo. App. 1997).

Section requires proof that a defendant in fact obtained possession or use of cash, credit, property, or services through the unauthorized use of a financial transaction device. People v. Novitskiy, 81 P.3d 1070 (Colo. App. 2003).

The state lacked subject matter jurisdiction over defendant's prosecution because none of defendant's conduct forming a material element of either unauthorized use of a financial transaction device or identity theft occurred in the state, and the unauthorized use and identity theft statutes do not include a result element. People v. Brennan, 2025 COA 68, 577 P.3d 62.

Knowledge that the victim lives in the state is a circumstantial element, and is not a conduct or result element of the crime of unauthorized use of a financial transaction device or of identity theft and therefore should not be considered when determining jurisdiction. People v. Brennan, 2025 COA 68, 577 P.3d 62.