Who is eligible for a finding of factual innocence for identity theft?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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The specifics of who is eligible for a finding of factual innocence after identity theft will vary from state to state, but generally anyone who is wrongfully implicated in a crime because someone else used or stole their identity will be eligible for a finding of factual innocence. For example, if someone commits a robbery and when arrested gives the police your name, date of birth and address, or uses your data in the course of obtaining credit, services, or goods fraudulently, you can petition the court to find you actually innocent of the crime committed by the party using your identity.

Eligibility Requirements for a Petition

The first eligibility requirement for a petition for factual innocence is to show that you are the victim of identity theft. Generally, this requires having the police investigate, identify, and charge the real culprit. You should obtain a copy of your report and attach it as an exhibit to your petition. Some states require that you file the report with the police and wait a certain number of days before you are eligible to file.

A second eligibility requirement is to show that the person who stole your identity was convicted or charged with some crime using your name. Some law enforcement agencies will give you a certified copy of your criminal history for a nominal fee. Some states also have online databases that you can use to check your own criminal history.

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Proving Identity Theft

If you have been denied employment because a consumer agency is reporting a conviction in your name, you are entitled to a free copy of the report if prospective employer refused to hire you. If you cannot prove that the person who stole your identity has been convicted of a crime, then you cannot file for a finding of factual innocence. If you are the victim of identity theft and it has impacted your credit report, consumer statutes provide avenues for clearing your credit or consumer history.

Obtaining a Finding of Factual Innocence

To obtain a finding of factual innocence, you must also comply with the various procedural and notice requirements in your state. Generally, they include notifying law enforcement and the district attorney. You must also file a petition utilizing an approved form, if there is one. You must then request a hearing and present evidence.

Getting Help

Before you file a petition, you may wish to consult with a criminal defense lawyer in your state to review any specialized rules or procedures which could affect your eligibility.

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