Debit Cards Are Per Se “Financial Devices” Under § 18-5-901(6): No Proof of Usability at the Time of Possession Required

1. Introduction

In People v. Hudson, 2025 CO 52, the Colorado Supreme Court addressed what the prosecution must prove to obtain a conviction for criminal possession of a financial device under section 18-5-903(1). Police found two debit cards in Garry Allen Hudson’s possession, each bearing another person’s name. At trial, the People did not present evidence that either debit card was active, funded, or capable of completing transactions at the time Hudson possessed it.

The key legal issue was narrow but consequential: whether the statutory definition of “financial device” in section 18-5-901(6) requires the prosecution to prove that an enumerated device—here, a debit card—was capable of use at the time of possession. A Court of Appeals division majority (in an unpublished decision titled People v. Hudson, No. 21CA749) had vacated the conviction for insufficient evidence, relying in part on People v. Reed, 2013 COA 113, 338 P.3d 364.

2. Summary of the Opinion

The Colorado Supreme Court reversed. It held that because section 18-5-901(6)(a) expressly lists “debit card” as a financial device without qualification, the People need not separately prove the debit card was capable of obtaining a thing of value at the time of possession. The court also rejected the Court of Appeals’ insertion of an “at the time of possession” requirement into the statutory definition.

The case was remanded with directions to reinstate Hudson’s conviction for criminal possession of a financial device. Chief Justice Márquez, joined by Justice Hood, dissented.

3. Analysis

A. Precedents Cited

• McBride v. People, 2022 CO 30, 511 P.3d 613: The majority relied on McBride for core interpretive rules—plain meaning, reading the scheme as a whole, avoiding superfluity, and not adding words to a statute. These canons did most of the work: the court treated the enumerated list in section 18-5-901(6)(a) as meaningful legislative drafting that should not be rendered surplus.
• People v. Iannicelli, 2019 CO 80, 449 P.3d 387: Cited for the proposition that ambiguity permits resort to legislative history and other interpretive aids. Although the court stated its plain-language analysis resolved the case, it explained that—even assuming ambiguity—it would reach the same result using these tools.
• Nieto v. Clark's Mkt., Inc., 2021 CO 48, 488 P.3d 1140: Used for the inference that when the legislature uses different language in neighboring provisions, courts presume the difference is intentional. This supported the majority’s comparison between section 18-5-901(6) (“financial device”) and section 18-5-901(7) (“financial identifying information”).
• People v. Perez, 2016 CO 12, 367 P.3d 695: Cited as authority tying the 2006 identity-theft legislative package (including sections 18-5-901 to -905) to testimony about harms of identity theft and gaps in prior law. The majority used Perez’s citations to legislative hearings to reinforce that criminal possession of a financial device was intended as a “precursor” offense.
• People v. Reed, 2013 COA 113, 338 P.3d 364: Reed held the People had to prove usability “at the time of possession” for a gift card, because the gift card there had no funds. The majority in Hudson distinguished Reed on the ground that gift cards are not enumerated in section 18-5-901(6)(a)-(e), while debit cards are. The court acknowledged Reed used “perhaps overly broad language,” but limited Reed’s usability requirement to non-enumerated instruments.
• People v. Hollis, 2025 CO __, __ P.3d __ (discussed in the dissent): The dissent invoked Hollis (announced the same day) to argue that definitional language can apply to each enumerated example in a definition. While not part of the majority’s reasoning, Hollis frames the interpretive dispute: whether listing examples displaces the definitional conditions.

B. Legal Reasoning

1. Enumerated debit cards are “financial devices” by legislative designation. Section 18-5-901(6) defines “financial device” and then—after “including but not limited to”—lists examples that include “debit card.” The majority treated this list as substantive: the legislature’s choice to include debit cards “without qualification” means a debit card “is a financial device” for the statute, and requiring separate proof of usability would make the explicit inclusion largely redundant.
2. The court rejected adding an “at the time of possession” element. The Court of Appeals had required proof the device could be used “at the time of possession.” The Supreme Court emphasized that section 18-5-901(6) does not use that phrase and that courts may not “add words” under McBride v. People.
3. Structural comparison within section 18-5-901 supported the result. The majority contrasted section 18-5-901(6) with section 18-5-901(7), where the definition of “[f]inancial identifying information” lists items that “can be used” to obtain value. That drafting choice (in the majority’s view) signaled the legislature knew how to condition listed items on usability when it wanted to, reinforcing that section 18-5-901(6)(a)’s debit-card listing is not conditioned on transaction capability.
4. Legislative history reinforced the “precursor” purpose. Even assuming ambiguity under People v. Iannicelli, the court relied on the 2006 identity-theft legislative package and hearing testimony describing criminal possession of a financial device as a “precursor to identity theft” (Hearings on H.B. 06-1326 before the S. Judiciary Comm., Apr. 24, 2006). The court reasoned a debit card—even if deactivated—often contains information useful for identity theft, so requiring proof of “active” status would undermine the precursor offense, especially where victims promptly deactivate cards.
5. Reed was cabined to non-enumerated instruments. The court’s central harmonization move was categorical:
   • Enumerated devices (e.g., debit cards) require no separate proof of usability at the time of possession.
   • Non-enumerated instruments (e.g., gift cards in Reed) require proof they could obtain value when possessed.
   This preserves Reed’s outcome without importing its “time of possession” phrasing into debit-card prosecutions.
6. Sufficiency of the evidence followed from the statutory holding. Because Hudson’s insufficiency argument depended entirely on the rejected usability requirement, the conviction could stand without additional proof of account status or funds.

C. Impact

• Lower evidentiary burden for enumerated cards. For “credit card, banking card, debit card, electronic fund transfer card, or guaranteed check card” prosecutions, the People need not prove activation, available funds, or immediate transactional functionality—so long as the defendant knowingly possessed the device while knowing (or having reason to know) it was lost, stolen, or misdelivered under section 18-5-903(1).
• A two-track framework for “financial device” litigation. Hudson effectively creates (or confirms) a practical division: enumerated devices are treated as inherently within the definition, while non-enumerated instruments require a functional-usability showing akin to Reed. Future litigation is likely to focus on whether a disputed instrument fits within the enumerated categories (or is sufficiently analogous under the “including but not limited to” language).
• Tension flagged by the dissent may invite future challenges. The dissent warned that the majority’s approach risks inconsistent application of definitional language and could criminalize possession of patently unusable enumerated items (e.g., “VOID” checks). That concern may surface in future as-applied challenges, legislative clarification efforts, or renewed arguments about how far Hudson extends beyond ordinary “deactivated but intact” cards.
• Identity-theft enforcement alignment. The majority’s “precursor” framing ties section 18-5-903 closely to identity-theft prevention policy, potentially influencing how courts understand the purpose of related provisions in sections 18-5-901 to -905.

4. Complex Concepts Simplified

• “Enumerated” items in a statutory definition: When a statute defines a term and then lists examples, an “enumerated” item is one expressly named in that list (here, “debit card”). Hudson treats that explicit listing as decisive for debit cards.
• “Including but not limited to”: This phrase usually means the list that follows is illustrative, not exhaustive. Hudson uses the phrase differently: not to shrink the definition, but to confirm that at least the listed items are covered—and that requiring extra proof for listed items risks making the list pointless.
• Avoiding “superfluity”: Courts try not to interpret statutes in a way that makes words unnecessary. The majority reasoned that if the People had to prove a debit card’s usability anyway, listing “debit card” would add little.
• “At the time of possession”: This is a timing requirement some courts have read into usability-focused definitions (as in Reed’s gift-card context). Hudson holds that this timing phrase is not in section 18-5-901(6) and should not be judicially inserted for debit cards.
• “De novo” review: The Supreme Court gave no deference to the Court of Appeals on the meaning of the statute; it interpreted the statute fresh.

5. Conclusion

People v. Hudson establishes a clear rule for Colorado’s “criminal possession of a financial device” statute: where the instrument is a debit card (an item expressly listed in section 18-5-901(6)(a)), the prosecution need not separately prove it was capable of use to obtain a thing of value—nor prove usability “at the time of possession.” The decision strengthens section 18-5-903(1) as a “precursor” identity-theft offense by preventing deactivation or unknown account status from becoming an evidentiary shield. At the same time, the dissent underscores a fault line likely to shape future cases: whether statutory definitions’ functional language should constrain even enumerated examples, particularly when an item is plainly unusable.