WPIC 79.07 Access Device—Definition

Use the bracketed second paragraph as applicable. See discussion in the Comment.

RCW 9A.56.010.

The Legislature defined “access device” in terms of various items that “can be used” to obtain items or services of value. The phrase “can be used” is open to interpretation, as the statute does not specify whether usability is measured as of the time when a device was taken from the lawful owner, or when the device is found in the defendant's possession, or at some other point.

In a case in which an access card was usable when it was last in the lawful owner's possession but had been deactivated by the time it was found in the defendant's possession, the court held that usability is measured as of the time when the device was last in the lawful owner's possession. See State v. Schloredt, 97 Wn.App. 789, 792–94, 987 P.2d 647 (1999). See also, State v. Sandoval, 8 Wn.App.2d 267, 276, 438 P.3d 165 (2019).

A credit card that is stolen from the mail before it reaches the intended user can still qualify as an access device even if the card is never in the intended user's possession and even if the intended user never activated it. In the absence of evidence showing that additional steps needed to be taken to activate the card, reasonable jurors could conclude that the card had been activated by somebody else or did not need additional steps of activation. State v. Clay, 144 Wn.App. 894, 184 P.3d 674 (2008). An activated gift card is an access device. State v. Nelson, 195 Wn.App. 261, 381 P.3d 84 (2016).

But, in State v. Rose, 175 Wn.2d 10, 282 P.3d 1087 (2012), the defendant stole a credit card that was linked to an active account and which required the intended user to pay a processing fee to activate. The court held that there was insufficient evidence to convict the defendant of second degree possession of stolen property because the evidence at trial did not show the card in question could be used to obtain something of value.