2014 North Dakota Century Code Title 12.1 Criminal Code Chapter 12.1-23 Theft and Related Offenses
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CHAPTER 12.1-23
THEFT AND RELATED OFFENSES
12.1-23-01. Consolidation of theft offenses.
1. Conduct denominated theft in sections 12.1-23-02 to 12.1-23-04 constitutes a single
offense designed to include the separate offenses heretofore known as larceny,
stealing, purloining, embezzlement, obtaining money or property by false pretenses,
extortion, blackmail, fraudulent conversion, receiving stolen property, misappropriation
of public funds, swindling, and the like.
2. An indictment, information, or complaint charging theft under sections 12.1-23-02 to
12.1-23-04 which fairly apprises the defendant of the nature of the charges against
him shall not be deemed insufficient because it fails to specify a particular category of
theft. The defendant may be found guilty of theft under such an indictment,
information, or complaint if his conduct falls under sections 12.1-23-02 to 12.1-23-04,
so long as the conduct proved is sufficiently related to the conduct charged that the
accused is not unfairly surprised by the case he must meet.
12.1-23-02. Theft of property.
A person is guilty of theft if he:
1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized
transfer of an interest in, the property of another with intent to deprive the owner
thereof;
2. Knowingly obtains the property of another by deception or by threat with intent to
deprive the owner thereof, or intentionally deprives another of his property by
deception or by threat; or
3. Knowingly receives, retains, or disposes of property of another which has been stolen,
with intent to deprive the owner thereof.
12.1-23-02.1. Disarming or attempting to disarm a law enforcement officer.
Notwithstanding subdivision d of subsection 3 of section 12.1-23-05, a person is guilty of a
class C felony if, without the consent of the law enforcement officer, the person willfully takes or
removes, or attempts to take or remove, a firearm from a law enforcement officer engaged in
the performance of official duties.
12.1-23-03. Theft of services.
A person is guilty of theft if:
1. He intentionally obtains services, known by him to be available only for compensation,
by deception, threat, false token, or other means to avoid payment for the services; or
2. Having control over the disposition of services of another to which he is not entitled, he
knowingly diverts those services to his own benefit or to the benefit of another not
entitled thereto.
Where compensation for services is ordinarily paid immediately upon their rendition, as in the
case of hotels, restaurants, and comparable establishments, absconding without payment or
making provision to pay is prima facie evidence that the services were obtained by deception.
12.1-23-04. Theft of property lost, mislaid, or delivered by mistake.
A person is guilty of theft if he:
1. Retains or disposes of property of another when he knows it has been lost or mislaid;
or
2. Retains or disposes of property of another when he knows it has been delivered under
a mistake as to the identity of the recipient or as to the nature or amount of the
property,
and with intent to deprive the owner of it, he fails to take readily available and reasonable
measures to restore the property to a person entitled to have it.
Page No. 1
12.1-23-05. Grading of theft offenses.
1. Notwithstanding subsection 3, theft under this chapter is a class A felony if the
property or services stolen exceed fifty thousand dollars in value.
2. Notwithstanding the provisions of subsection 3, theft under this chapter is a class B
felony if the property or services stolen exceed ten thousand dollars in value but do not
exceed fifty thousand dollars or are acquired or retained by a threat to commit a felony.
3. Theft under this chapter is a class C felony if:
a. The property or services stolen exceed one thousand dollars in value;
b. The property or services stolen are acquired or retained by threat and (1) are
acquired or retained by a public servant by a threat to take or withhold official
action, or (2) exceed one hundred dollars in value;
c. The property or services stolen exceed one hundred dollars in value and are
acquired or retained by a public servant in the course of official duties;
d. The property stolen is a firearm, ammunition, explosive or destructive device, or
an automobile, aircraft, or other motor-propelled vehicle;
e. The property consists of any government file, record, document, or other
government paper stolen from any government office or from any public servant;
f. The defendant is in the business of buying or selling stolen property and the
defendant receives, retains, or disposes of the property in the course of that
business;
g. The property stolen consists of any implement, paper, or other thing uniquely
associated with the preparation of any money, stamp, bond, or other document,
instrument, or obligation of this state;
h. The property stolen consists of livestock taken from the premises of the owner;
i. The property stolen consists of a key or other implement uniquely suited to
provide access to property the theft of which would be a felony and it was stolen
to gain such access;
j. The property stolen is a card, plate, or other credit device existing for the purpose
of obtaining money, property, labor, or services on credit, or is a debit card,
electronic fund transfer card, code, or other means of access to an account for
the purposes of initiating electronic fund transfers; or
k. The property stolen is a prescription drug as defined in section 43-15.3-01.
4. All other theft under this chapter is a class A misdemeanor, unless the requirements of
subsection 5 are met.
5. Theft under this chapter of property or services of a value not exceeding five hundred
dollars is a class B misdemeanor if:
a. The theft was not committed by threat;
b. The theft was not committed by deception by one who stood in a confidential or
fiduciary relationship to the victim of the theft; and
c. The defendant was not a public servant or an officer or employee of a financial
institution who committed the theft in the course of official duties.
The special classification provided in this subsection applies if the offense is classified
under this subsection in the charge or if, at sentencing, the required factors are
established by a preponderance of the evidence.
6. Notwithstanding subsection 3 of section 12.1-06-01, an attempt to commit a theft
under this chapter is punishable equally with the completed offense when the actor
has completed all of the conduct which the actor believes necessary on the actor's part
to complete the theft except receipt of the property.
7. For purposes of grading, the amount involved in a theft under this chapter is the
highest value by any reasonable standard, regardless of the actor's knowledge of such
value, of the property or services which were stolen by the actor, or which the actor
believed that the actor was stealing, or which the actor could reasonably have
anticipated to have been the property or services involved. Thefts committed pursuant
to one scheme or course of conduct, whether from the same person or several
persons, may be charged as one offense and the amounts proved to have been stolen
may be aggregated in determining the grade of the offense.
Page No. 2
12.1-23-06. Unauthorized use of a vehicle.
1. A person is guilty of an offense if, knowing that the person does not have the consent
of the owner, the person takes, operates, or exercises control over an automobile,
train, aircraft, motorcycle, motorboat, or other motor-propelled vehicle of another.
2. It is a defense to a prosecution under this section that the actor reasonably believed
that the owner would have consented had the owner known of the conduct on which
the prosecution was based.
3. The offense is a class C felony if the vehicle is an aircraft or if the value of the use of
the vehicle and the cost of retrieval and restoration exceeds one thousand dollars.
Otherwise the offense is a class A misdemeanor.
12.1-23-07. Misapplication of entrusted property.
1. A person is guilty of misapplication of entrusted property if the person disposes of,
uses, or transfers any interest in property that has been entrusted to the person as a
fiduciary, or in the person's capacity as a public servant or an officer, director, agent,
employee of, or a person controlling a financial institution, in a manner that the person
knows is not authorized and that the person knows to involve a risk of loss or
detriment to the owner of the property or to the government or other person for whose
benefit the property was entrusted.
2. Misapplication of entrusted property is:
a. A class A felony if the value of the property misapplied exceeds fifty thousand
dollars.
b. A class B felony if the value of the property misapplied exceeds ten thousand
dollars but does not exceed fifty thousand dollars.
c. A class C felony if the value of the property misapplied exceeds one thousand
dollars but does not exceed ten thousand dollars.
d. A class A misdemeanor if the value of the property misapplied exceeds five
hundred dollars but does not exceed one thousand dollars.
e. A class B misdemeanor in all other cases.
12.1-23-08. Defrauding secured creditors.
1. An owner of property who creates a security interest in such property may not
intentionally alter, conceal, destroy, damage, encumber, transfer, remove, or otherwise
deal with property that is subject to the security interest without the prior consent of the
secured party if that action has the effect of hindering the enforcement of the security
interest.
2. A person may not destroy, remove, damage, conceal, encumber, transfer, or otherwise
deal with property that is subject to a security interest with the intent to prevent
collection of the debt represented by the security interest.
3. A person may not, at the time of sale of property that is subject to a security interest, or
is described in a certificate provided for under section 41-09-28, make false
statements as to the existence of security interests in the property, or as to the
ownership or location of the property.
4. A violation of subsection 2 or 3 must be prosecuted as theft under section 12.1-23-02
or 12.1-23-04. Violation of subsection 2 or 3 is a class C felony if the property has a
value of more than one thousand dollars, as determined under subsection 7 of section
12.1-23-05. In all other cases, violation of this section is a class A misdemeanor.
12.1-23-08.1. Removal of identification marks.
1. A person commits the offense of removal of identification marks if he, with intent to
cause interruption of the ownership of another, defaces, erases, or otherwise alters
any serial number or identification mark placed or inscribed on any personal property
by the manufacturer or owner for the purpose of identifying the personal property or its
component parts, provided the personal property exceeds one hundred dollars in
value. A person removes identification marks if he attempts to or succeeds in erasing,
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2.
defacing, altering, or removing a serial number or identification mark or part thereof, on
the personal property of another, that exceeds one hundred dollars in value.
A person who commits the offense of removal of identification marks on property or its
component parts which exceeds one hundred dollars in value is guilty of a class A
misdemeanor.
12.1-23-08.2. Possession of altered property.
1. A person is guilty of the offense of possession of altered property if he possesses
property the identifying features of which, including serial numbers or labels, have
been removed or in any fashion altered, knowing the serial number or identification
mark placed on the same by the manufacturer or owner for the purpose of
identification, has been erased, altered, changed, or removed for the purpose of
changing the identity of such personal property.
2. A person who commits the offense of possession of altered property or its component
parts which exceed one hundred dollars in value, shall be guilty of a class A
misdemeanor. In the event that more than one item of personal property is defaced,
erased, or otherwise altered or unlawfully possessed, as specified in sections
12.1-23-08.2 and 12.1-23-08.3, by an individual, then an offense is determined to be
committed under this section if the aggregate of the value of the property so defaced,
erased, or otherwise altered or unlawfully possessed is in excess of one hundred
dollars.
12.1-23-08.3. Dealing in stolen property.
1. A person is guilty of the offense of dealing in stolen property if he:
a. Traffics in, or endeavors to traffic in, the property of another that has been stolen;
or
b. Initiates, organizes, plans, finances, directs, manages, or supervises the theft and
trafficking in the property of another that has been stolen.
2. A person who commits the offense of dealing in stolen property in violation of:
a. Subdivision a of subsection 1 shall be guilty of a class C felony; or
b. Subdivision b of subsection 1 shall be guilty of a class B felony.
12.1-23-08.4. Duplication of keys.
1. Except as provided in subsection 2, no person shall duplicate or make a key from
another key marked with the words "Do Not Duplicate", "Do Not Copy", or words of
similar intent.
2. It shall be an affirmative defense to prosecution under subsection 1 that:
a. The person made or duplicated the key for his employer, solely for use within the
employer's place of business.
b. The person for whom the key was made or duplicated owns the lock which the
key fits.
3. Any person who violates any provision of this section is guilty of a class B
misdemeanor.
12.1-23-09. Defenses and proof as to theft and related offenses.
1. It is a defense to a prosecution under this chapter that:
a. The actor reasonably believed that the actor had a claim to the property or
services involved which the actor was entitled to assert in the manner which
forms the basis for the charge against the actor; or
b. The victim is the actor's spouse, but only when the property involved constitutes
household or personal effects or other property normally accessible to both
spouses and the parties involved are living together. The term "spouse", as used
in this section, includes persons living together as husband and wife.
2. It does not constitute a defense to a prosecution for conduct constituting an offense in
violation of this chapter that:
Page No. 4
a.
3.
4.
Stratagem or deception, including the use of an undercover operative or law
enforcement officer, was employed;
b. A facility or an opportunity to engage in such conduct, including offering for sale
property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage
in such conduct was made by a law enforcement officer to gain evidence against
a person predisposed to engage in such conduct.
a. It is a prima facie case of theft under this chapter if it is shown that a public
servant or an officer, director, agent, employee of, or a person connected in any
capacity with a financial institution has failed to pay or account upon lawful
demand for money or property entrusted to the person as part of that person's
official duties or if an audit reveals a shortage or falsification of the person's
accounts.
b. It is a prima facie case of theft under this chapter if it is shown that a person,
having successfully bid on and obtained an item at an auction, removed the item
from the auction premises without paying or making provisions to pay for the
item.
c. Proof of the purchase or sale of stolen property at a price substantially below its
fair market value, unless satisfactorily explained, gives rise to an inference that
the person buying or selling the property was aware of the risk that it had been
stolen.
d. Proof of the purchase or sale of stolen property by a dealer in property, out of the
regular course of business, or without the usual indicia of ownership other than
mere possession, unless satisfactorily explained, gives rise to an inference that
the person buying or selling the property was aware of the risk that it had been
stolen.
The testimony of an accomplice, if believed beyond a reasonable doubt, is sufficient
for a conviction for conduct constituting an offense in violation of sections 12.1-23-08.1
through 12.1-23-08.3 when:
a. Stratagem or deception, including the use of an undercover operative or law
enforcement officer, was employed;
b. A facility or an opportunity to engage in such conduct including offering for sale
property not stolen as if it were stolen, was provided; or
c. Mere solicitation that would not induce an ordinary law-abiding person to engage
in such conduct was made by a law enforcement officer to gain evidence against
a person predisposed to engage in such conduct.
12.1-23-10. Definitions for theft and related offenses.
In this chapter:
1. "Dealer in property" means a person who buys or sells property as a business.
2. "Deception" means:
a. Creating or reinforcing a false impression as to fact, law, status, value, intention,
or other state of mind; or obtaining or attempting to obtain public assistance by
concealing a material fact, making a false statement or representation,
impersonating another, concealing the transfer of property without adequate
consideration, or using any other fraudulent method; but deception as to a
person's intention to perform a promise may not be inferred from the fact alone
that the person did not substantially perform the promise unless it is part of a
continuing scheme to defraud;
b. Preventing another from acquiring information which would affect his judgment of
a transaction;
c. Failing to correct a false impression which the actor previously created or
reinforced, or which he knows to be influencing another to whom he stands in a
fiduciary or confidential relationship;
d. Failing to correct an impression which the actor previously created or reinforced
and which the actor knows to have become false due to subsequent events;
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e.
3.
4.
5.
6.
7.
8.
9.
Failing to disclose a lien, adverse claim, or other impediment to the enjoyment of
property which he transfers or encumbers in consideration for the property
obtained or in order to continue to deprive another of his property, whether such
impediment is or is not valid, or is or is not a matter of official record;
f. Using a credit card, charge plate, or any other instrument which purports to
evidence an undertaking to pay for property or services delivered or rendered to
or upon the order of a designated person or bearer (1) where such instrument
has been stolen, forged, revoked, or canceled, or where for any other reason its
use by the actor is unauthorized, and (2) where the actor does not have the
intention and ability to meet all obligations to the issuer arising out of his use of
the instrument; or
g. Any other scheme to defraud. The term "deception" does not, however, include
falsifications as to matters having no pecuniary significance, or puffing by
statements unlikely to deceive ordinary persons in the group addressed. "Puffing"
means an exaggerated commendation of wares in communications addressed to
the public or to a class or group.
"Deprive" means:
a. To withhold property or to cause it to be withheld either permanently or under
such circumstances that a major portion of its economic value, or its use and
benefit, has, in fact, been appropriated;
b. To withhold property or to cause it to be withheld with the intent to restore it only
upon the payment of a reward or other compensation; or
c. To dispose of property or use it or transfer any interest in it under circumstances
that make its restoration, in fact, unlikely.
"Fiduciary" means a trustee, guardian, executor, administrator, receiver, or any other
person acting in a fiduciary capacity, or any person carrying on fiduciary functions on
behalf of a corporation, limited liability company, or other organization which is a
fiduciary.
"Financial institution" means a bank, insurance company, credit union, safety deposit
company, savings and loan association, investment trust, or other organization held
out to the public as a place of deposit of funds or medium of savings or collective
investment.
"Obtain" means:
a. In relation to property, to bring about a transfer or purported transfer of an interest
in the property, whether to the actor or another.
b. In relation to services, to secure performance thereof.
"Property" means any money, tangible or intangible personal property, property
(whether real or personal) the location of which can be changed (including things
growing on, affixed to, or found in land and documents although the rights represented
thereby have no physical location), contract right, chose-in-action, interest in or claim
to wealth, credit, or any other article or thing of value of any kind. "Property" also
means real property the location of which cannot be moved if the offense involves
transfer or attempted transfer of an interest in the property.
"Property of another" means property in which a person other than the actor or in
which a government has an interest which the actor is not privileged to infringe without
consent, regardless of the fact that the actor also has an interest in the property and
regardless of the fact that the other person or government might be precluded from
civil recovery because the property was used in an unlawful transaction or was subject
to forfeiture as contraband. Property in possession of the actor shall not be deemed
property of another who has a security interest therein, even if legal title is in the
creditor pursuant to a conditional sales contract or other security agreement. "Owner"
means any person or a government with an interest in property such that it is "property
of another" as far as the actor is concerned.
"Receiving" means acquiring possession, control, or title, or lending on the security of
the property.
Page No. 6
10.
11.
12.
13.
"Services" means labor, professional service, transportation, telephone, mail or other
public service, gas, electricity and other public utility services, accommodations in
hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or
other property.
"Stolen" means property which has been the subject of theft or robbery or a vehicle
which is received from a person who is then in violation of section 12.1-23-06.
"Threat" means an expressed purpose, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person;
b. Cause damage to property;
c. Subject the person threatened or any other person to physical confinement or
restraint;
d. Engage in other conduct constituting a crime;
e. Accuse anyone of a crime;
f. Expose a secret or publicize an asserted fact, whether true or false, tending to
subject a person living or deceased, to hatred, contempt, or ridicule or to impair
another's credit or business repute;
g. Reveal any information sought to be concealed by the person threatened;
h. Testify or provide information or withhold testimony or information with respect to
another's legal claim or defense;
i. Take or withhold official action as a public servant, or cause a public servant to
take or withhold official action;
j. Bring about or continue a strike, boycott, or other similar collective action to
obtain property or deprive another of his property which is not demanded or
received for the benefit of the group which the actor purports to represent;
k. Cause anyone to be dismissed from his employment, unless the property is
demanded or obtained for lawful union purposes; or
l. Do any other act which would not in itself substantially benefit the actor or a
group he represents but which is calculated to harm another person in a
substantial manner with respect to his health, safety, business, employment,
calling, career, financial condition, reputation, or personal relationship.
Upon a charge of theft, the receipt of property in consideration for taking or withholding
official action shall be deemed to be theft by threat regardless of whether the owner
voluntarily parted with his property or himself initiated the scheme.
"Traffic" means:
a. To sell, transfer, distribute, dispense, or otherwise dispose of to another person;
or
b. To buy, receive, possess, or obtain control of, with intent to sell, transfer,
distribute, dispense, or otherwise dispose of to another person.
12.1-23-11. Unauthorized use of personal identifying information - Penalty.
1. As used in this section, "personal identifying information" means any of the following
information:
a. An individual's name;
b. An individual's address;
c. An individual's telephone number;
d. The operator's license information assigned to an individual by the department of
transportation under section 39-06-14;
e. An individual's social security number;
f. An individual's employer or place of employment;
g. An identification number assigned to the individual by the individual's employer;
h. The maiden name of the individual's mother;
i. An individual's financial institution account number, credit card number, or debit
card number;
j. An individual's birth, death, or marriage certificate;
k. An individual's health insurance policy number or subscriber identification number
or any unique identifier used by a health insurer to identify the individual;
Page No. 7
l.
2.
3.
4.
5.
6.
The nondriver color photo identification card information assigned to the
individual by the department of transportation under section 39-06-03.1; or
m. An individual's digitized or other electronic signature.
n. An individual's photograph or computerized image;
o. An individual's e-mail address; or
p. An individual's username and password of any digital service or computer
system.
An individual is guilty of an offense if the individual uses or attempts to use any
personal identifying information of another individual, living or deceased, to obtain
credit, money, goods, services, or anything else of value without the authorization or
consent of the other individual. The offense is a class B felony if the credit, money,
goods, services, or anything else of value exceeds one thousand dollars in value,
otherwise the offense is a class C felony. A second or subsequent offense is a class A
felony.
A person is guilty of an offense if the person uses or attempts to use any personal
identifying information of an individual, living or deceased, without the authorization or
consent of the individual, in order to interfere with or initiate a contract or service for a
person other than that individual, to obtain or continue employment, to gain access to
personal identifying information of another individual, or to commit an offense in
violation of the laws of this state, regardless of whether there is any actual economic
loss to the individual. A first offense under this subsection is a class A misdemeanor. A
second or subsequent offense under this subsection is a class C felony.
A violation of this section, of a law of another state, or of federal law that is equivalent
to this section and which resulted in a plea or finding of guilt must be considered a
prior offense. The prior offense must be alleged in the complaint, information, or
indictment. The plea or finding of guilt for the prior offense must have occurred before
the date of the commission of the offense or offenses charged in the complaint,
information, or indictment.
A prosecution for a violation of this section must be commenced within six years after
discovery by the victim of the offense of the facts constituting the violation.
When a person commits violations of this section in more than one county involving
either one or more victims or the commission of acts constituting an element of the
offense, the multiple offenses may be consolidated for commencement of prosecution
in any county where one of the offenses was committed.
12.1-23-12. Jurisdiction - Conduct outside this state.
Notwithstanding section 29-03-01.1, a person who, while outside this state and by use of
deception, obtains, deprives, or conspires, solicits, or attempts to obtain the property of a
person within this state or to deprive the person of property is subject to prosecution under this
chapter in the courts of this state. Except as provided in section 12.1-23-11, the venue is in the
county in which the victim resides or any other county in which any part of the crime occurred.
12.1-23-13. Distribution and use of theft detection shielding devices.
1. A person is guilty of unlawful distribution of a theft detection shielding device if the
person knowingly manufactures, sells, offers for sale, or distributes any laminated or
coated bag or device peculiar to shielding and intended to shield merchandise from
detection by an electronic or magnetic theft alarm sensor.
2. A person is guilty of unlawful possession of a theft detection shielding device if the
person knowingly possesses any laminated or coated bag or device peculiar to and
designed for shielding and intended to shield merchandise from detection by an
electronic or magnetic theft alarm sensor, with the intent to commit theft.
3. A person is guilty of unlawful possession of a theft detection device deactivator or
remover if the person knowingly possesses any tool or device designed to allow the
deactivation or removal of any theft detection device from any merchandise without the
permission of the merchant or person owning or holding the merchandise.
Page No. 8
4.
5.
6.
A person is guilty of unlawful deactivation or removal of a theft detection device if the
person intentionally deactivates or removes the device from a product before
purchase.
A person is guilty of unlawful distribution of a theft detection device deactivator or
remover if the person knowingly manufactures, sells, offers for sale, or distributes any
tool or device designed to allow the deactivation or removal of a theft detection device
from merchandise without the permission of the merchant or person owning or holding
the merchandise.
An offense under subsections 1 and 5 is a class C felony. An offense under
subsections 2, 3, and 4 is a class A misdemeanor.
12.1-23-14. Detention of persons suspected of unlawful use or removal of theft
detection devices - Reasonable cause.
1. The activation of an antishoplifting or inventory control device as a result of a person
exiting the establishment or a protected area within the establishment constitutes
reasonable cause for the detention of the person exiting by the owner or operator of
the establishment or by an agent or employee of the owner or operator, provided
sufficient notice has been posted to advise the patrons that the device is being utilized.
Each detention must be made in a reasonable manner and only for a reasonable
period of time sufficient for any inquiry into the circumstances surrounding the
activation of the device or for the recovery of goods.
2. If the taking into custody and detention of the person by a law enforcement officer,
security officer, merchant, or merchant's employee is done in compliance with the
requirements of this section, the law enforcement officer, security officer, merchant, or
merchant's employee may not be held criminally or civilly liable, including any liability
for false arrest, false imprisonment, unlawful detention, malicious prosecution,
intentional infliction of emotional distress, or defamation.
12.1-23-15. Purchase of beer kegs - Penalty.
A recycler, scrap metal dealer, or scrapyard operator may not purchase a metal beer keg,
whether damaged or undamaged, except from the brewer or the brewer's authorized
representative, if:
1. The keg is clearly marked as the property of a brewery manufacturer; or
2. The keg's identification markings have been made illegible.
A person who willfully violates this section is guilty of a class B misdemeanor.
12.1-23-16. Automated sales suppression device, zapper, or phantom-ware Prohibition - Penalties.
1. For purposes of this section:
a. "Automated sales suppression device" or "zapper" means a software program
accessed through any method which falsifies the electronic records, transaction
data, or transaction reports of electronic cash registers and other point-of-sale
systems.
b. "Electronic cash register" means a device that keeps a register or supporting
documents through the use of an electronic device or computer system designed
to record transaction data for the purpose of computing, compiling, or processing
retail sales transaction data or transaction reports.
c. "Phantom-ware" means a hidden, preinstalled or installed at a later time,
programming option embedded in the operating system of an electronic cash
register or hardwired into the electronic cash register, which can be used to
create a virtual second cash register or that can eliminate or manipulate
transaction records that may be preserved in digital formats to represent the true
or manipulated transaction data or reports in the electronic cash register and is
intended to falsify the electronic records of an electronic cash register or other
point-of-sale system.
Page No. 9
d.
2.
3.
4.
5.
6.
7.
"Transaction data" means items purchased by a customer, the price for each
item, a taxability determination for each item, a segregated tax amount for each
of the taxed items, the amount of cash or credit tendered, the net amount
returned to the customer in change, the date and time of purchase, the name,
address, and identification number of the vendor, and the receipt or invoice
number of the transaction.
e. "Transaction report" means a report documenting sales, the tax collected,
methods of payment, voided sales, or other information at an electronic cash
register which is printed on cash register tape at the end of a day or shift, or a
report documenting every transaction at an electronic cash register that is stored
electronically.
It is unlawful to willfully sell, purchase, possess, install, transfer, manufacture, own, or
use in this state, an automated sales suppression device, zapper, or phantom-ware.
Any person convicted of a violation under subsection 2 is guilty of a class B felony. Any
person convicted of a second or subsequent violation of subsection 2 is guilty of a
class A felony and also is subject to a civil penalty of not more than one hundred
thousand dollars.
It is a defense to prosecution under this section that the person purchased,
possessed, installed, transferred, owned, or used in this state, an automated sales
suppression device, zapper, or phantom-ware for a legitimate purpose.
Any person violating subsection 2 is liable for all sales and use tax, income tax, or
other tax under title 57, and any county or city sales and use tax imposed under
sections 11-09.2-05 and 40-05.1-06, and associated penalties and interest due the
state as the result of the fraudulent use of an automated sales suppression device,
zapper, or phantom-ware. Any tax found to be due must be assessed at double the
amount so determined.
The person shall forfeit all proceeds associated with the sale or use of an automated
sales suppression device, zapper, or phantom-ware. The proceeds forfeited under this
section must be deposited with the state treasurer for deposit in the state general fund.
An automated sales suppression device, zapper, or phantom-ware, and the cash
register or other device containing the device or the software, is contraband and
subject to forfeiture in accordance with chapter 29-31.1.
12.1-23-17. Unlawful skimming of credit, debit, or other electronic payment cards Penalty.
1. For purposes of this section:
a. "Authorized card user" means any person with the empowerment, permission, or
competence to use an electronic payment card.
b. "Electronic payment card" means a credit card, charge card, debit card, hotel key
card, stored value card, or any other card that is issued to an authorized card
user which allows the user to obtain, purchase, or receive goods, services,
money, or anything else of value from a merchant.
c. "Merchant" means an owner or operator of a retail mercantile establishment or an
agent, employee, lessee, consignee, officer, director, franchisee, or independent
contractor of a retail mercantile establishment who receives from an authorized
user or someone believed to be an authorized user, an electronic payment card
or information from an electronic payment card, or what is believed to be an
electronic payment card or information from an electronic payment card, as the
instrument for obtaining, purchasing, or receiving goods, services, money, or
anything else of value from the retail mercantile establishment.
d. "Re-encoder" means an electronic device that places encoded information from
the magnetic strip or stripe of an electronic payment card onto the magnetic strip
or stripe of a different electronic payment card.
e. "Scanning device" means a scanner, reader, or any other electronic device that is
used to access, read, scan, obtain, memorize, or store, temporarily or
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2.
3.
permanently, information encoded on the magnetic strip or stripe of an electronic
payment card.
A person is guilty of unlawful skimming if the person uses:
a. A scanning device to access, read, scan, obtain, memorize, or store, temporarily
or permanently, information encoded on the magnetic strip or stripe of an
electronic payment card without the permission of the authorized user of the
electronic payment card, with the intent to defraud the authorized user of the
electronic payment card, the issuer of the electronic payment card, or a
merchant; or
b. A re-encoder to place information encoded on the magnetic strip or stripe of an
electronic payment card onto the magnetic strip or stripe of a different electronic
payment card without the permission of the authorized user of the card from
which the information is being re-encoded, with the intent to defraud the
authorized user of the electronic payment card, the issuer of the electronic
payment card, or a merchant.
Any person convicted of a violation under subsection 2 is guilty of a class B felony. Any
person convicted of a second or subsequent violation of subsection 2 is guilty of a
class A felony and also is subject to a civil penalty of not more than one hundred
thousand dollars.
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