The Colorado Supreme Court, by 5-2, rejected the idea on Monday that prosecutors need to prove a debit card is functional in order to convict a defendant of unlawfully possessing someone else’s “financial device.”

The majority believed Colorado law was straightforward: Legislators outlawed the unauthorized possession of a financial device, and debit cards were specifically listed as a type of financial device.

“As this language makes clear,” wrote Justice Richard L. Gabriel in the Sept. 8 opinion, “a debit card is an enumerated example of a financial device, and the legislature did not include any qualifiers.”

Chief Justice Monica M. Márquez, in dissent, argued the law was equally clear in the other direction. Legislators also specified a financial device is that which “can be used” to obtain a “thing of value.” In other words, a nonfunctional debit card cannot be it.

“The majority’s reasoning means, however, that a person in possession of a patently unusable enumerated item (such as an obviously expired debit card, a credit card damaged beyond use, or a voided check) can be held criminally liable,” she wrote for herself and Justice William W. Hood III.

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 usable.

“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 items, 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 oral arguments, adding there was a concern about over-criminalizing certain conduct.

Ultimately, the majority believed the fact the legislature listed debit cards specifically among the examples definitively showed lawmakers intended for debit cards to be deemed financial devices. Even if it were debatable, wrote Gabriel, the legislature’s enactment of the law amid a push to address identity theft suggested a desire to criminalize the possession of even unusable debit cards.

“Whether expired, cancelled, or active, a debit card generally contains the cardholder’s name, financial institution, and signature. This information could be used to steal the cardholder’s identity, even if the card has been deactivated,” he explained. “And were Hudson correct that to prove criminal possession of a debit card, the prosecution must establish that the card is capable of being used to obtain a thing of value at the time of possession, then many acts of criminal possession of a debit card would evade prosecution simply because the cardholder acted diligently to report a missing card.”

Márquez deemed it illogical that possessing a financial device that is obviously unusable can be the basis for a criminal conviction, in light of the law’s specific language about usability. Because Hudson’s prosecutors had not proven the cards he possessed could obtain anything of value, she would have overturned his conviction for that offense.

The case is People v. Hudson.