Possession and Use of Fake Vaccine Cards

With COVID-19 vaccine cards taking on increasing importance in society today a new black market has emerged in fake vaccine cards. Law enforcement has already announced that they are taking crimes associated with fake vaccine cards and forged vaccine cards very seriously.

People have already been arrested and charged with using or selling forged vaccine cards.

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People caught using or selling fake vaccine cards may find themselves charged with multiple felonies including:

• Criminal Possession of a Forged Instrument in the Second Degree
• Forgery in the Second degree (if there is evidence that the person created the card)

In addition to these violations of the Penal Law individuals (in other states) have been charged with violating the Governor’s executive orders pertaining to COVID-19 for using forged vaccine cards to do things that they would not be aloud to do if they were unvaccinated.

In addition to the criminal consequences, we have recently represented an individual who was terminated from his/her employment after her employer said that the vaccine card the employee used at the employee’s teaching job was fake.

Possible defenses: As with any criminal case it is best to remain silent and not admit to anything. In the case of the fired employee as he/she was questioned about the card the story about when and where the employee got vaccinated didn’t check out. In particular they did not give the specific brand of vaccine at the place he/she claimed. Without a confession, and absent other evidence, it seems that it would be almost impossible to prove either that a person is unvaccinated or that the card is fake.

At the beginning of the vaccine roll-out, emphasis was placed on saving lives by getting as many people vaccinated as possible as quickly as possible. Makeshift vaccinations sites were set up all over the country and vaccine cards were printed pieces of cardboard that were scribbled out by whoever gave the vaccine. Given those facts, it seems that it may be hard in many cases, absent a confession to prove that a particular is fake or forged.

Another question is whether it is illegal to use someone else’s real vaccine card with or without their permission. The New York Penal Law makes Identity Theft in the Third Degree a Class “A” misdemeanor. The elements of identity theft require that a person with “intent to defraud” uses the identity of someone else to obtain services or goods.

The important question is, what intent is required? Does intent to defraud require that you intend to steal the services and/or goods or is it enough that you just intend to get into a restaurant that a person is legally prohibited from entering because they are unvaccinated. The Courts in New York have struggled with the definition of intent to defraud which is not defined in the New York Penal Law. In 2010, New York’s highest Court seemingly broadened its interpretation of intent to defraud by holding that intent to defraud requires only that the accused have the state of mind to defraud, without giving a definition of defraud. The lower appellate court had earlier reversed the conviction because the false statements were made to the Office of Court Administration on documents that the Office of Court Administration did not rely on or check and no benefits were obtained. Therefore, it seems entirely plausible that a person could be found to act with intent to defraud for using another person’s vaccine card to get into a restaurant even if he pays for the meal.

Based upon statements from law enforcement in New York and elsewhere it appears that law enforcement will be vigorously enforcing and prosecuting people for using fake, forged or fictitious vaccine cards.

If you have been arrested or charge or are under investigation for using or selling a fake vaccine card please contact one of our experienced New York criminal defense lawyers today to schedule a fast and friendly consultation.