New Jersey Takes Fake IDs Paperless

Constitutionality of law prohibiting possession of false government documents including digital images is affirmed

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

This blog discusses State v. Borjas, decided by the Superior Court of New Jersey, Appellate Division, on July 8, 2014. Borjas, the defendant-appellant had his home computers confiscated under a search warrant based on the belief that he possessed and distributed child pornography. After searching the computers the child porn charges were dropped but investigators did find fake drivers’ licenses and a fake social security card. These were in violation of subsections (b) and (d) of N.J.S.A. 2C:21-2.1 which can be paraphrased to say that if a person knowingly makes false government documents they are guilty of a second degree offense and if they knowingly possess such documents they are guilty of a fourth degree offense. It should be noted that the defendant had suspended driving privileges which may have been the motivation for creating a false ID, but the motivation is irrelevant so long as “knowingly” is proven. The statute was enacted in 1983 and the legislative intent was to quell underage drinking. It began as a disorderly persons offense but has been amended over the years and the penalties have been increased to their current grades.

A constitutional challenge to this law is a question of first impression, meaning that nobody has made this challenge in the past. The appellant argued that the law was void for vagueness and overbroad. If a law is void for vagueness this means that the law is so unclear that people cannot be expected to abide by it. On the other hand a law that is overbroad is too expansive in what it prohibits. The appellant here argues that this particular law is overbroad in that it will chill free speech by penalizing artists or students making false documents for school projects. The Court however ruled that the law was not vague and was not overbroad either because it was not meant to punish harmless behavior such as one an artist may engage in. For example if an ID said ‘John Doe’ or ‘123 Main Street’ then the maker or possessor would not be in violation of the statute. The appellant also argued that the definition of ‘document’ does not include digital images but the Court disagreed. Lastly, the appellant argued that there was no specific intent written into the law and therefore it was unconstitutional. However the law requires someone to knowingly make or possess a false document in order to be culpable. So, if someone e-mailed you a false document and it was stored on your computer, in order for you to be guilty of a crime, you would have to know it was in your possession and have a sufficient period of time to be able to terminate that possession.

It is easy for the general public to distance themselves from the circumstances of this case. Most people will never have a warrant executed on their property, especially not for child pornography. The reality is that most college students who use fake IDs get away with it. But there is equally a real possibility for a criminal record and jail time, especially for those who produce such IDs, even if only digitally on a computer. In this case, the appellant’s sentence of 6 1/2 years in prison was affirmed.

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