A. Fraudulent use of a credit card consists of a person obtaining anything of value, with intent to defraud, by using:
(1) a credit card obtained in violation of Sections 30-16-25 through 30-16-38 NMSA 1978;
(2) a credit card that is invalid, expired or revoked;
(3) a credit card while fraudulently representing that the person is the cardholder named on the credit card or an authorized agent or representative of the cardholder named on the credit card; or
(4) a credit card issued in the name of another person without the consent of the person to whom the card has been issued.
B. Whoever commits fraudulent use of a credit card when the value of the property or service obtained is two hundred fifty dollars ($250) or less in any consecutive six-month period is guilty of a petty misdemeanor.
C. Whoever commits fraudulent use of a credit card when the value of the property or service obtained is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) in any consecutive six-month period is guilty of a misdemeanor.
D. Whoever commits fraudulent use of a credit card when the value of the property or service obtained is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) in any consecutive six-month period is guilty of a fourth degree felony.
E. Whoever commits fraudulent use of a credit card when the value of the property or service obtained is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) in any consecutive six-month period is guilty of a third degree felony.
F. Whoever commits fraudulent use of a credit card when the value of the property or service obtained is over twenty thousand dollars ($20,000) in any consecutive six-month period is guilty of a second degree felony.
History: 1953 Comp., § 40A-16-33, enacted by Laws 1971, ch. 239, § 9; 2006, ch. 29, § 11.
ANNOTATIONSThe 2006 amendment, effective July 1, 2006, provided in Subsection A that fraudulent use of a credit card consists of a person obtaining anything of value with intent to defraud by using a credit card; changed the 1953 statutory references in Paragraph (1) of Subsection A to the NMSA 1978; replaced the former Subsection B, which provided that if the value of things obtained exceeds $300 in a consecutive six months period, the offense was a third degree felony with new Subsections B through F providing separate penalties for fraudulent use of a credit card depending on the value of the property or service obtained.
Definition of credit card. — An electronic benefits transfer (EBT) card issued to a public assistance recipient is not a credit card under Section 30-16-33 NMSA 1978, State v. Martinez, 2001-NMCA-099, 131 N.M. 254, 34 P.3d 643.
Section 30-16-33 NMSA 1978 is not unconstitutionally vague. State v. Castillo, 2011-NMCA-046, 149 N.M. 536, 252 P.3d 760, cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.
Debit card. — Debit cards, which are tied to individual checking accounts, as opposed to lines of credit or guarantee of payment by the issuing bank, is not a "credit card" for purposes of Section 30-16-33 NMSA 1978. State v. Castillo, 2011-NMCA-046, 149 N.M. 536, 252 P.3d 760, cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.
Each use separate offense. — Section 30-16-32 NMSA 1978 punishes each fraudulent signature. This indicates that the legislature intended to punish each use of a credit card under this section, not the continuing possession and usage of one card. State v. Salazar, 1982-NMCA-077, 98 N.M. 70, 644 P.2d 1059.
Consent. — Consent is not an essential element of the crime defined in Subsection A(3) of this section. State v. Lopez, 1973-NMCA-148, 85 N.M. 742, 516 P.2d 1125.
Admissibility of related incident. — In prosecution for charging purchase on credit card belonging to another, admission of testimony of a subsequent attempt to charge additional purchases on the following day at the same store was not erroneous, as the second incident was strong evidence of defendant's intent and his plan, and the concurrence of time, place and modus operandi also tended to establish the identity of the accused. State v. Lopez, 1973-NMCA-148, 85 N.M. 742, 516 P.2d 1125.
Opinion evidence on intent. — It was error to allow store employee who dealt with defendant to express opinion on whether he had reason to believe that defendant intended to defraud the establishment, but considering the strong evidence in the record, this error was not prejudicial. State v. Lopez, 1973-NMCA-148, 85 N.M. 742, 516 P.2d 1125.
Arrest valid. — Where arresting officer had reasonable grounds to believe that person arrested had committed the crime of misusing an expired credit card, the arrest was valid. Stone v. United States, 385 F.2d 713 (10th Cir. 1967), cert. denied, 391 U.S. 966, 88 S. Ct. 2038, 20 L. Ed. 2d 880 (1968).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Successful negotiation of commercial transaction as element of state offense of credit card fraud or false pretense in use of credit card, 106 A.L.R.5th 701.