What is the Statute of Limitations for Identity Theft in Delaware?

Full Question:

What is the Statute of Limitations for Identity Theft in Delaware?
01/03/2011   |   Category: Civil Actions ยป Limitations   |   State: Delaware   |   #23932

Answer:

The statute of limitations in Delaware for identity theft is 5 years, although this period may be tolled up to three years based on the Discovery Rule. In some cases involving fraud or forgery, the date the statute of limitations begins to run is when the actual injury was discovered or when the injury should have reasonably been discovered. So, the role of the Discovery Rule is to toll the calendar date of the statute of limitations from the origination point of the civil wrong. Instead, it is moved to a point where the wrong was discovered or when it should have reasonably been discovered.

Please see the following DE statutes:

11 Del. C. § 854. Identity theft; class D felony.

(a) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person and with intent to use the information to commit or facilitate any crime set forth in this title.

(b) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person, thereby knowingly or recklessly facilitating the use of the information by a third person to commit or facilitate any crime set forth in this title.

(c) For the purposes of this section, "personal identifying information" includes name, address, birth date, Social Security number, driver's license number, telephone number, financial services account number, savings account number, checking account number, credit card number, debit card number, identification document or false identification document, electronic identification number, educational record, health care record, financial record, credit record, employment record, e-mail address, computer system password, mother's maiden name or similar personal number, record or information.

(d) Identity theft is a class D felony.

(e) When a person is convicted of or pleads guilty to identity theft, the sentencing judge shall order full restitution for monetary loss, including documented loss of wages and reasonable attorney fees, suffered by the victim.

(f) Prosecution under this section does not preclude prosecution or sentencing under any other section of this Code.

11 Del. C. § 205. Time limitations.

(a) A prosecution for murder or any class A felony, or any attempt to commit said crimes, may be commenced at any time.

(b) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(1) A prosecution for any felony except murder or any class A felony, or any attempt to commit said crimes, must be commenced within 5 years after it is committed;

(2) A prosecution for a class A misdemeanor must be commenced within 3 years after it is committed;

(3) A prosecution for a class B misdemeanor, a class C misdemeanor, an unclassified misdemeanor or a violation must be commenced within 2 years after it is committed.

(c) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense in which the accused's acts include or constitute forgery, fraud, breach of fiduciary duty or actively concealed theft or misapplication of property by an employee, pledgee, bailee or fiduciary may be commenced within 2 years after discovery of the offense has been made or should have been made in the exercise of ordinary diligence by an aggrieved party or by an authorized agent, fiduciary, guardian, personal representative or parent (in the case of an infant) of an aggrieved party who is not a party to the offense. In no case shall this provision extend the period of limitation otherwise applicable by more than an additional 3 years beyond the period specified in subsection (b) of this section.

(d) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced at any time when the defendant is in public office or employment or within 2 years thereafter. In no case shall this provision extend the period of limitation otherwise applicable by more than an additional 3 years beyond the period specified in subsection (b) of this section.

(e) Notwithstanding the period prescribed by subsection (b) of this section, a prosecution for any crime that is delineated in Subpart D of Subchapter II of Chapter 5 of this title, or is otherwise defined as a "sexual offense" by § 761 of this title except §§ 763, 764 or 765 of this title, or any attempt to commit said crimes, may be commenced at any time. No prosecution under this subsection shall be based upon the memory of the victim that has been recovered through psychotherapy unless there is some evidence of the corpus delicti independent of such repressed memory. This subsection applies to all causes of action arising before, on or after July 15, 1992, and to the extent consistent with this subsection, it shall revive causes of action that would otherwise be barred by this section.

(f) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

(g) For purposes of this section, a prosecution is commenced when either an indictment is found or an information is filed.

(h) The period of limitation does not run:

(1) During any time when the accused is fleeing or hiding from justice so that the accused's identity or whereabouts within or outside the State cannot be ascertained, despite a diligent search for the accused; or

(2) During any time when the accused in a prosecution has become a fugitive from justice by failing to appear for any scheduled court proceeding related to such prosecution for which proper notice under the law was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding.

(3) During any time when a prosecution, including a prosecution under a defective indictment or information, against the accused for the same conduct has been commenced and is pending in this State.

(i) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense in this title may be commenced within 10 years after it is committed if based upon forensic DNA testing.

(j) In any prosecution in which subsection (c), (d), (e), (h) or (i) of this section is sought to be invoked to avoid the limitation period of subsection (b) of this section, the State must allege and prove the applicability of subsection (c), (d), (e), (h) or (i) as an element of the offense.