All the clients I’ve ever represented for a fake ID ….and their parents…. have been shocked in our first meeting.  It wasn’t the replica Viking broadsword next to my desk, or even my uncanny resemblance to Capt. Jean Luc Picard (just let me have that one).  It happens when they learn the possible present and future consequences of being caught with a fake ID.

The case usually involves underage students trying to buy beer at SPAC (Saratoga Performing Arts Center) or at a bar or supermarket. For the purpose of this blog, we’ll stick with fake driver’s licenses because as they are almost always the ID of choice.

In CASE ONE I represented a senior from a local high school that, along with about a dozen of her friends, had purchased fake out-of-state drivers’ licenses. They were good fakes with holograms and bar codes which fooled scanners. And they were cheap…..only $75.  What she didn’t know was that it wasn’t just a fake ID; it was the bait at the end of a hook.  Holding the other end of the line was an eastern European crime syndicate whose real business was identity theft.

The scam was to gather vital personal information while selling the fake IDs on line. The IDs were forged in China. Dates of birth, photos, and names were funneled to the identity theft ring from the forger.  For years to come, these kids will have to live with the enhanced possibility….or more accurately, the probability…their identities will be stolen.  That is the long term threat.

All the kids were caught because some of them looked too young to pass for 21.  Despite the bar codes and holograms, a smart bar owner tipped the police.  The first one caught soon led to the others being arrested.  The charge being threatened was Criminal Possession of a Forged Instrument 2nd in violation of Penal Law (PL) § 170.25, a class D felony in New York State punishable by a maximum term of between 2 1/3 to 7 years in state prison.  That was the short term threat.

The police were after the person whose was peddling the fake licenses, not the kids buying them.  All who cooperated in the seller’s arrest walked away without a criminal conviction, my client included.  What they haven’t walked away from is the future threat of identity theft and fraud.

In CASE TWO a college student from out of state was arrested for trying to buy a 6 pack at a supermarket.  He and his father (an attorney unfamiliar with NY law) were horrified to learn a felony was being charged.  A conviction for a felony creates life long criminal record, strips one of the right to vote, to hold many professional licenses and offices, to own firearms, and carries the possibility of a prison sentence.

The DA was understanding and reasonable.  The student received an ACOD (adjournment in contemplation of dismissal….case dismissed in 6 months if no subsequent arrests) on the condition he take an alcohol education course and perform community service. This was not an unusual result.  Depending on the circumstances, some of these cases also resolve with a plea to a non-criminal Disorderly Conduct (the defendant gets to say he has no criminal convictions).

The outcomes are dependent upon no one being hurt as well as the character and record of the defendants.

Since a driver’s license is a “governmental instrumentality” (PL § 170.10[3]),possessing a fake one with intent to deceive another invokes PL § 170.25.  The word “felony” conjures the vision of a serious crime.  The parents and teens I have met in this spot have the same thoughts:

“A teen trying to buy beer shouldn’t have his life ruined!  Most kids try to buy beer before age 21.  Getting caught shouldn’t make you a felon for the rest of your life.  This is surreal.”

Yes, and yes, hence the Twilight Zone in the title.  Putting aside the cases in which teen drinking does cause real harm and death, the majority of such kids trying to buy beer a few years too soon should not, and almost always do not, have to become convicted criminals.  This is why the recent trend has been to step outside the criminal arena and invoke the awesome and really annoying power of the DMV as seen in… CASE THREE.

The defendant tried to buy beer at a SPAC concert, but due to her youthful appearance was approached by a Park Police Office.  She confessed on the spot to her license being fake.  She was ticketed under the Vehicle & Traffic Law (VTL), § 509 (6) which prohibits having a forged or fictitious license.

You might be thinking, “That’s a relief….no felony!”  But remember the DMV?  They have all sorts of pesky administrative rules over which the court has no control.  Regardless of the outcome of the ticket in court, a person charged under VTL §509 (6) will receive a notice from DMV.  The notice states DMV will be conducting an administrative hearing.  If you go to the hearing and fight, you’d better win.  If you lose, your license is suspended for one year.  If you sign a waiver and admit guilt, the suspension lasts only 90 days.  You can see where they are going with this.  They don’t want to have contested hearings and will make you pay if you force their hand.

Almost everyone loses these sorts of hearings because of two key factors: 1) the burden of proof is lower than the “guilt beyond a reasonable doubt, and 2) you don’t have the same rights in an administrative proceedings as you do in criminal/traffic court.

Regardless of the length of the suspension, you can apply for a restricted license and hope DMV is in a merciful mood.

The loss of license applies even if you weren’t driving a car when caught with the fake license.   Usually, the safest course is to sign the waiver and take the smaller hit.

A short term loss of license is clearly better than a felony conviction.  The problem is most people do not know about the consequences of having a fake license until it is too late.  The DMV should provide a flier to every new driver with this sort of information.  The colleges and high schools should brief their students at orientation.  But none of this seems to be happening.  I post this in the hope the word will spread.  The beer isn’t worth it.

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