Is Identity Theft a Felony or a Misdemeanor? Full Legal Breakdown by State and Federal Law
Identity theft is a serious and multifaceted crime that can result in either misdemeanor or felony charges, depending on a variety of factors such as jurisdiction, financial loss, number of victims, and the offender’s intent and history. As technology evolves and identity fraud schemes grow more sophisticated, so too do the legal frameworks addressing them.
This article offers an in-depth analysis of identity theft classifications, penalties, influencing factors, and legal consequences across both state and federal levels.
Table of Contents
What Is Identity Theft?
Identity theft involves the unauthorized use of someone else’s personal information—such as Social Security numbers, bank account credentials, or driver’s license numbers—for fraudulent purposes. The crime can lead to significant financial losses, emotional distress, and long-term credit damage for victims.
Under both federal and state laws, identity theft is taken very seriously, often involving complex investigations and severe consequences.
Misdemeanor vs. Felony Identity Theft
Misdemeanor Identity Theft
In limited cases—such as first-time offenses, minor financial loss, or non-financial motives—identity theft may be charged as a misdemeanor. Penalties typically include:
- Up to 1 year in county jail
- Fines of up to $1,000
- Probation or community service
Examples:
- California: Under Penal Code § 530.5, misdemeanor charges apply when the identity theft involves minor financial damage or first-time offenses.
- Other States: Some states consider identity theft a misdemeanor when the financial damage is under $500 or when used for non-financial harassment, like posting someone’s information online.
Felony Identity Theft
In most cases, identity theft is classified as a felony, especially when it involves:
- Substantial financial losses
- Multiple victims
- Aggravated intent, such as committing fraud or terrorism
- Use of public records or government databases
Felony identity theft can lead to:
- Several years in state or federal prison
- Fines ranging from $5,000 to $250,000
- Mandatory restitution to victims
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Examples:
- Florida: Under Florida Statute § 817.568, identity theft is generally a third-degree felony (up to 5 years in prison). Penalties increase with:
- $5,000+ losses or 10–19 victims → Second-degree felony (up to 15 years)
- $50,000+ losses or 20+ victims → First-degree felony (up to 30 years)
- $5,000+ losses or 10–19 victims → Second-degree felony (up to 15 years)
- Georgia: Identity theft is a felony under O.C.G.A. §§ 16-9-120 to 16-9-127, with increased penalties for repeat offenses or elder abuse.
Federal Classification and Penalties
Under federal law, identity theft is prosecuted under the Identity Theft and Assumption Deterrence Act (18 U.S.C. § 1028), which makes it a felony.
Federal Penalties Include:
- Up to 15 years in federal prison
- Fines up to $250,000
- Restitution to victims
- Aggravated Identity Theft (18 U.S.C. § 1028A): Adds 2–5 years to any sentence if identity theft was used to commit another felony (e.g., tax fraud or terrorism)
Federal involvement is more likely when:
- The offense crosses state lines
- It involves cybercrime rings
- It includes terrorist activity, drug trafficking, or public record exploitation
Key Factors That Determine the Severity of Charges
1. Monetary Loss
- Charges escalate when financial losses exceed certain thresholds (e.g., $750 in Missouri, $5,000 in Florida).
2. Number of Victims
- Multiple victims increase the likelihood of felony classification. For instance, 10–30 victims in Florida can lead to first-degree felony charges.
3. Vulnerable Victims
- Targeting minors, seniors, or deceased persons leads to harsher sentencing in most jurisdictions.
4. Repeat Offenses
- Prior convictions increase the likelihood of a felony charge, often resulting in enhanced penalties or mandatory minimum sentences.
5. Public Records and Databases
- Using stolen information obtained from government or medical databases often raises the offense to felony level.
State-by-State Comparison
| State | Misdemeanor/Felony Classification | Notable Laws |
| California | Both (Penal Code § 530.5) | Misdemeanor or felony depending on severity |
| Florida | Mostly felony (Statute § 817.568) | First-degree felony for $50k+ losses or 20+ victims |
| Washington | First-degree: Class B felony; Second-degree: Class C felony | Based on the extent and impact of fraud |
| Missouri | Felony if losses exceed $750 | Tiered system based on stolen amount |
| Nebraska | Uses tiered classifications and mandates restitution | Victims may receive compensation for restoration |
Case Studies
- California (2023): A woman impersonating a nurse cared for over 60 patients under a false identity—resulting in felony charges under Penal Code § 530.5.
- Florida (2023): A retail fraud ring using stolen identities to purchase $100,000+ in goods led to second-degree felony charges.
- Federal (2024): A hacker filed $2 million in fake tax returns using stolen Social Security numbers and was sentenced to 15 years under 18 U.S.C. § 1028.
Legal Defenses Against Identity Theft Charges
Defendants may raise the following defenses:
- Lack of Intent: Accidental possession or no intent to defraud
- Mistaken Identity: Wrongfully accused due to identity confusion
- Constitutional Violations: Illegally obtained evidence (e.g., unlawful search and seizure)
Consulting with a criminal defense attorney is critical to navigating these defenses.
Restitution and Compensation for Victims
Courts often order restitution, requiring convicted offenders to repay:
- Financial losses
- Legal fees
- Credit repair and recovery costs
In states like Nebraska, restitution is explicitly required to cover the victim’s financial restoration process.
Prevention and Legal Precautions
For Individuals:
- Monitor credit reports regularly
- Use strong and unique passwords
- Shred sensitive documents before disposal
- Avoid sharing personal information unnecessarily
For Victims:
- Freeze your credit with bureaus like Equifax, Experian, or TransUnion
- Report to the FTC and local law enforcement
- Initiate fraud alerts with financial institutions
For Accused Individuals:
- Hire a specialized criminal defense lawyer
- Explore plea deals or negotiate reduced charges
- Challenge evidence and witness credibility in court
Final Thoughts
Identity theft is overwhelmingly treated as a felony, especially when it involves financial gain, multiple victims, or vulnerable individuals. Misdemeanor charges are rare and generally limited to low-stakes or non-monetary infractions.
Given the potential for decades of prison time and massive fines, understanding the distinctions between misdemeanor and felony identity theft is crucial—whether you’re a victim, an accused individual, or simply a citizen looking to protect your personal data.
Helpful Resources
- FTC Identity Theft Recovery Portal
- U.S. Department of Justice – Identity Theft
- Florida Statutes § 817.568
- California Penal Code § 530.5