Members of the Colorado Supreme Court considered on Tuesday whether simply having another person’s debit card amounts to the crime of possessing someone’s “financial device,” or if prosecutors must also prove the card is functional.

During oral arguments, Justice Richard L. Gabriel said he was worried about over-criminalizing conduct that, practically speaking, might not have a victim.

“Many, many people, when their card expires, they just throw it in the trashcan. And I have a bit of a concern,” he said. “Somebody finds a discarded, expired credit card, expired debit card, and we say that they’re possessing that as a crime.”

Jefferson County jurors convicted Garry Allen Hudson of multiple offenses related to his possession of counterfeit bills and other people’s identification cards. Hudson appealed his convictions and a three-judge panel for the Court of Appeals largely sided against him.

However, by 2-1, the majority overturned one of Hudson’s convictions for possession of a financial device. The underlying charge involved two debit cards belonging to other people that police found when they arrested Hudson. Law enforcement was unable to locate the owners and there was no evidence about whether the cards were active or whether there was money in the corresponding bank accounts.

Under Colorado law, committing the crime required Hudson to knowingly possess another person’s financial device, meaning “any instrument that can be used” to obtain cash or something of value. The law provides a list of included examples, and debit cards are among them.

Based on that understanding, the appellate panel’s majority vacated Hudson’s conviction because there was no proof Hudson could have actually used the debit cards for anything. Writing in dissent, Judge W. Eric Kuhn believed the explicit inclusion of debit cards in the law was sufficient to sustain a conviction, regardless of whether a specific card is “capable of use.”

“For purposes of the criminal possession of a financial device statute, it makes sense that a person is on notice that any of these common financial devices can be used to obtain a thing of value,” he wrote.

The Colorado Attorney General’s Office appealed to the Supreme Court, arguing the listed financial devices, if possessed by a defendant, should trigger a conviction without any further proof.

The Court of Appeals’ reasoning meant “a person would be absolved of criminal liability when the debit card owner cancels the card after realizing it was lost or stolen, while a person in possession of a debit card that has not been cancelled would remain subject to criminal liability,” wrote Senior Assistant Attorney General Megan C. Rasband, “despite both people committing the same act.”

“So, what if the debit card on its face is expired?” asked Gabriel during arguments.

Assistant Attorney General Joshua J. Luna explained the law in question was enacted as part of a broader push to combat identity theft, and “even an expired or an inactive debit card still presents a risk to identity theft.”

“Now you’re adding language,” interjected Gabriel. “The statute doesn’t say anything about identity theft.”

Suzan Trinh Almony, representing Hudson, argued her client was only charged with the narrow offense of possessing someone else’s financial instrument, which the law indicated must be something a person can use.

“It would seem to be the rare case then, under your view, that we would ever have a violation of the statute,” said Gabriel, noting people will cancel lost debit or credit cards. “With your theory, as long as somebody does that, we’re never gonna have a crime under this statute.”

Meanwhile, Justice Carlos A. Samour Jr. was puzzled by the government’s position that the law unambiguously supported the prosecution’s reasoning.

“I’m wondering why you’re so resistant to the idea that the statute is susceptible to a couple of different interpretations,” he told Luna. “Even (Kuhn’s) dissent said, ‘Hey, I think there are two reasonable ways of reading this.'”

Chief Justice Monica M. Márquez did not attend the arguments. Justice Brian D. Boatright said she was “unavailable,” but did not otherwise explain her absence.

The case is People v. Hudson.