Is Identity Theft a Felony or Misdemeanor?

Yes, under federal law identity theft is a felony. It carries up to 5 years in prison, and up to 15 if the thief got $1,000 or more in a year. State law varies. In Texas, Florida, Illinois, Ohio and Washington the main offense is a felony at every level. California, New York and Pennsylvania can treat lower-level cases as misdemeanors. Here’s how it works.

Identity Theft Penalties — Quick Facts

Federal law	18 U.S.C. § 1028(a)(7) (identity theft) and § 1028A (aggravated identity theft)
Federal classification	Felony
Base maximum	Up to 5 years
$1,000 or more obtained in a year	Up to 15 years
Drug trafficking, violent crime, or a prior § 1028 conviction	Up to 20 years
Terrorism-related	Up to 30 years
Aggravated identity theft	Mandatory 2 years added on top (5 years for terrorism felonies)
Federal time limit to charge	Generally 5 years
State law	Varies: felony, misdemeanor, or both
Last Updated	September 19, 2026

Is Identity Theft a Felony Under Federal Law?

Yes. The main federal statute, 18 U.S.C. § 1028(a)(7), covers anyone who knowingly transfers, possesses or uses another person’s identifying information without permission. That includes a name, Social Security number, date of birth or driver’s license number, and the thief must intend to commit or help commit a federal crime or a state felony.

As a rule, a felony is a crime punishable by more than a year in prison. Even the lowest federal tier here is five years.

• Up to 5 years: the base offense.
• Up to 15 years: if the thief obtains anything worth $1,000 or more in any one-year period.
• Up to 20 years: if the offense helps a drug trafficking crime, is tied to a crime of violence, or comes after a prior conviction under the same section.
• Up to 30 years: if it helps an act of domestic or international terrorism.

Fines, forfeiture of property used in the offense, and the same penalties for attempts and conspiracies also apply. That $1,000 line matters. Cross it within a year and the ceiling triples.

What Is Aggravated Identity Theft?

It’s a separate charge. Under 18 U.S.C. § 1028A, someone who uses another person’s identity during certain felonies, like wire fraud, bank fraud or Social Security false statements, gets a mandatory two years on top of the sentence for that felony.

Two years, no probation, no overlap. The court can’t run it at the same time as the other sentence, and it can’t shorten the underlying sentence to make up for it.

Terrorism felonies carry five years instead. And simple identity theft under § 1028(a)(7) can’t be the predicate, so prosecutors need another felony to add this charge. The U.S. Sentencing Commission reports that 561 of 66,662 cases in fiscal year 2025 involved § 1028A, about 0.8%.

In 2023, the Supreme Court narrowed the charge. In Dubin v. United States, the Court ruled 9-0 that the misuse of someone’s identity must be at the crux of what makes the underlying crime criminal, not just an incidental piece of it.

Related article: What Is the Penalty for Identity Theft? Prison Time, Fines And Restitution

Is Identity Theft a Felony Under State Law?

It depends on the state. Every state has its own statute, and the grading rules differ. Here are eight, checked against the statute text.

State	Main law	How it’s graded
Texas	Penal Code § 32.51	Felony at every level: state jail felony (fewer than 5 items) up to first-degree felony (50 or more items). Raised a level in some cases, such as an elderly victim.
Florida	Fla. Stat. § 817.568	Third-degree felony at the base. Second degree at $5,000 or more, or 10 to 19 victims (3-year mandatory minimum). First degree at $50,000 or more, or 20 to 29 victims (5-year minimum), and 10 years at $100,000 or more or 30+ victims.
Ohio	Ohio Rev. Code § 2913.49	Fifth-degree felony at the base. Fourth degree at $1,000 or more, third at $7,500 or more, second at $150,000 or more. Higher for protected-class victims.
Illinois	720 ILCS 5/16-30	Felony at every level: Class 4 at $300 or less, rising with value. Aggravated versions (victim 60 or older or with a disability, or gang activity) reach Class X above $100,000.
Washington	RCW 9.35.020	Felony at every level: class B felony above $1,500 or when targeting a senior or vulnerable person, class C felony otherwise, even if nothing of value is obtained.
Pennsylvania	18 Pa.C.S. § 4120	First-degree misdemeanor under $2,000. Third-degree felony at $2,000 or more or when tied to a conspiracy. Second-degree felony for a third offense. One grade higher if the victim is 60 or older, care-dependent or under 18.
California	Penal Code § 530.5	A “wobbler”: misdemeanor (fine and up to one year in county jail) or felony under § 1170(h).
New York	Penal Law §§ 190.78–190.80	Third degree is a class A misdemeanor. Second degree (more than $500 or tied to a felony) is a class E felony. First degree (more than $2,000 or tied to a class D or higher felony) is a class D felony.

Texas also presumes intent to harm or defraud when someone possesses identifying information of three or more people. New York has a separate aggravated identity theft law too. Check your own state’s penal code for its exact grading.

What Decides Felony vs. Misdemeanor?

The same conduct can land on either side of the line. These factors do most of the work:

• Dollar amount: $1,000 in a year federally, $1,500 in Washington, $2,000 in Pennsylvania and New York’s first degree.
• Number of victims or items: Texas grades by items of information, and Florida by number of victims.
• Who the victim is: children, seniors and others can raise the grade (more below).
• Prior convictions: federal law jumps to 20 years, Pennsylvania raises a third offense, and New York looks back five years.
• Another crime: federal law raises penalties for drug or violent crimes, and New York treats identity theft that facilitates a felony as a higher degree.

Are you a victim or accused? Either way, the level decides almost everything that follows.

Can Identity Theft Be a Misdemeanor?

In some states, yes. California can charge it as a misdemeanor, New York’s third degree is a class A misdemeanor, and Pennsylvania grades it as a first-degree misdemeanor under $2,000. Florida also has a separate misdemeanor for using someone’s information to harass them.

Federally, the answer is no for the main offense, since the lowest tier is five years. And in states that make it a felony at every level, being a first-time offender doesn’t change the classification, though it can affect sentencing.

Children, Seniors and the Deceased

Many states raise the stakes when the victim is vulnerable. Florida makes it a second-degree felony to use the information of anyone under 18 or 60 or older, and the same grade applies to disabled adults, veterans, first responders and public servants.

Pennsylvania adds a grade for victims who are 60 or older, care-dependent or under 18. Illinois and Washington have aggravated or first-degree versions for seniors and vulnerable people, and Ohio raises the grade for protected-class victims. Texas covers a child’s information and information about a deceased person, and Florida has separate rules for the deceased.

If the victim is a child or a parent who has died, don’t assume the law can’t reach it. It can.

How Long Do Prosecutors Have to Charge Identity Theft?

Federally, the general rule is five years from the offense, unless another law sets a different period. Some related offenses have longer limits.

States set their own deadlines. Florida’s identity theft law says prosecutors have three years, or one year after discovery if charges are filed within five years of the violation. Because so many victims find out months later, that discovery rule matters.

Five years federally, three in Florida. If you’re a victim, report early. Don’t wait to see if it goes away.

Identity Theft vs. Credit Card Fraud

They aren’t the same charge. Identity theft is using another person’s identifying information, like a Social Security number, to open accounts or pose as them. Card fraud is misusing a card or account number to pay for something.

Many states charge these separately. Texas has a separate credit card abuse offense in Chapter 32, and New York has its own access-device crimes. Federal law treats an access device as a “means of identification,” so the same conduct can fit more than one statute.

What Happens After a Conviction?

Prison is only part of it. Federal law also allows fines and forfeiture of any property used or intended to be used in the offense.

States add their own costs. Florida requires a $1,001 surcharge that the court can’t waive, and lets courts order restitution that can include a victim’s attorney’s fees for clearing their credit. Ohio requires full restitution and a fine of up to $50,000 when the victim is elderly.

Some states also let victims sue the thief directly. Ohio’s statute includes a civil action under § 2307.60, and Pennsylvania has a civil damages provision at 42 Pa.C.S. § 8315. For real-world examples of how big cases ended, see our biggest identity theft cases in history.

What Should You Do If You’re the Victim?

1. Report it at IdentityTheft.gov. An FTC identity theft report is one of the documents needed for an extended fraud alert.
2. File a police report. It also qualifies you for an extended alert.
3. Freeze your credit at all three bureaus. Our guide covers how to freeze your credit at Equifax, Experian and TransUnion.
4. Place a fraud alert. An extended alert lasts seven years.
5. Get an IRS Identity Protection PIN. It stops someone from filing a tax return with your Social Security number.
6. Talk to a consumer rights lawyer. Many offer a free legal consultation.

A criminal case punishes the thief. An identity theft lawsuit is a separate civil track, so ask about restitution and civil options.

If your data was exposed in a breach, our Conduent breach coverage shows how medical identity theft can follow a breach, and our guide to fake settlement notices covers how scammers use them to steal identities.

What If You’re Accused of Identity Theft?

Talk to a criminal defense attorney before you speak with investigators. Charges vary a lot by state and by dollar amount.

Sometimes it’s a case of the wrong person. Our guide on identity theft vs. mistaken identity explains the difference.

Identity Theft Felony Penalties — Frequently Asked Questions

1. Is identity theft a felony or a misdemeanor?

 Under federal law, it’s a felony. State law varies. Texas, Florida, Illinois, Ohio and Washington grade their main offense as a felony at every level, while California, New York and Pennsylvania can charge lower-level cases as misdemeanors.

2. How many years in prison for identity theft?

 Federally, up to 5 years, up to 15 if the thief obtains $1,000 or more in a year, up to 20 with a drug, violence or prior-conviction link, and up to 30 for terrorism. Aggravated identity theft adds a mandatory 2 years.

3. What is aggravated identity theft?

 A separate federal charge under 18 U.S.C. § 1028A for using another person’s identity during certain felonies, such as wire fraud. It carries a mandatory two-year sentence on top of the other sentence.

4. Is identity theft a felony in Texas? 

Yes. Texas Penal Code § 32.51 makes it a state jail felony for fewer than five items, and a first-degree felony for 50 or more. The level rises for certain victims, like the elderly.

5. Is identity theft a felony in California?

 It can be. Penal Code § 530.5 makes it a “wobbler,” so prosecutors can charge it as a misdemeanor with up to a year in county jail or as a felony, depending on the facts.

6. Is identity theft a felony in New York? 

Sometimes. Third-degree identity theft is a class A misdemeanor, second degree is a class E felony, and first degree is a class D felony. First degree involves more than $2,000 or a class D or higher felony.

7. Is identity theft a felony in Florida? 

Yes. Under Fla. Stat. § 817.568, the base offense is a third-degree felony. It rises to second degree at $5,000 or more, with a 3-year mandatory minimum, and to first degree at $50,000 or more.

8. How long can prosecutors wait to charge identity theft? 

Federally, generally five years unless another law sets a different period. States set their own limits. Florida’s is three years, with a discovery rule that allows one more year if charges come within five years of the violation.

9. Is identity theft the same as credit card fraud?

 No. Identity theft uses someone’s identifying information to open accounts or pose as them, while card fraud misuses a card or account number. Many states, like Texas and New York, charge these under separate laws.

10. What should I do if someone stole my identity?

 Report it at IdentityTheft.gov, file a police report, and freeze your credit at all three bureaus. Then consider a fraud alert and an IRS IP PIN, and talk to a consumer rights lawyer about your options.

Sources Used in This Identity Theft Article

• U.S. Code — 18 U.S.C. § 1028, Cornell LII: https://www.law.cornell.edu/uscode/text/18/1028
• U.S. Code — 18 U.S.C. § 1028A, Cornell LII: https://www.law.cornell.edu/uscode/text/18/1028A
• U.S. Code — 18 U.S.C. § 3282, Cornell LII: https://www.law.cornell.edu/uscode/text/18/3282
• U.S. Sentencing Commission — Aggravated Identity Theft quick facts (FY 2025): https://www.ussc.gov/research/quick-facts/aggravated-identity-theft
• Supreme Court — Dubin v. United States, June 8, 2023 (SCOTUSblog case page): https://www.scotusblog.com/cases/dubin-v-united-states/
• Texas Penal Code § 32.51: https://law.justia.com/codes/texas/penal-code/title-7/chapter-32/subchapter-d/section-32-51/
• Florida Statutes § 817.568 (2025), Florida Senate: https://www.flsenate.gov/Laws/Statutes/2025/817.568
• Ohio Revised Code § 2913.49: https://codes.ohio.gov/ohio-revised-code/section-2913.49
• Illinois — 720 ILCS 5/16-30: https://www.ilga.gov/documents/legislation/ilcs/documents/072000050K16-30.htm
• Washington — RCW 9.35.020: https://app.leg.wa.gov/rcw/default.aspx?cite=9.35.020
• Pennsylvania — 18 Pa.C.S. § 4120: https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.041.020.000..HTM
• California Penal Code § 530.5: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=530.5
• New York Penal Law § 190.78: https://www.nysenate.gov/legislation/laws/PEN/190.78
• New York Penal Law § 190.79: https://www.nysenate.gov/legislation/laws/PEN/190.79
• New York Penal Law § 190.80: https://www.nysenate.gov/legislation/laws/PEN/190.80
• FTC — Credit Freezes and Fraud Alerts: https://consumer.ftc.gov/articles/credit-freezes-and-fraud-alerts

Researched and written by Israr Ahmad, legal content researcher and founder of AllAboutLawyer.com. All facts verified against the U.S. Code, U.S. Sentencing Commission, Supreme Court and state statutes on September 19, 2026. Last Updated: September 19, 2026.

This article is for informational purposes only and does not constitute legal advice. Laws vary by state and individual circumstances differ. For advice about your specific situation, consult a qualified attorney.