1. Definition and Elements of the Crime
While many incidents of check fraud involve using a fake or altered check to obtain money, it is also illegal to use a real check to try and obtain goods, services or cash when there are insufficient funds in the account associated with the check. Writing or passing “bad checks” is a serious criminal offense under California Penal Code Section 476A PC.
To prove that the defendant is guilty under the “bad checks” law, the following elements must be present:
A defendant does not intend to defraud another when they reasonably and actually believe the check would be honored by the bank associated with it. Additionally, a defendant would not be guilty of this offense if they told the person or entity being provided with the bad check that there were insufficient funds at the time of payment.
2. Related Offenses
Similar offenses include the following:
3. Examples
A man wants to purchase certain goods from a hardware store. He does not have enough money to buy everything he needs, so he writes a check for the full amount knowing he has insufficient funds to cover the purchase but hoping that he will have funds deposited by the time the store cashes the check. The store cashes the check the next day and it is returned for insufficient funds. The man could be prosecuted for writing and passing a bad check under California Penal Code Section 476A PC.
In another example, a woman writes a check to pay off a debt she owes, but specifically tells the person she pays that she does not have enough money in her account then but she will have the funds in one week. She asks that the other person hold the check until that date. The other person tries to cash the check the next day and the check bounces. The woman would not be guilty of passing a bad check because she told the person being paid that there were insufficient funds in the account at the time of payment.
4. Defenses to Writing or Passing a Bad Check
As many people who are charged with insufficient fund fees from their bank can attest to, writing a bad check is something that can easily be done inadvertently. The bad check statute requires that the defendant have the intent to defraud at the time of writing the bad check. If the defendant unintentionally writes a check without realizing that there are insufficient in his account, he would a valid accident defense if charged criminally.
5. Penalties
Writing or passing a bad check is a “wobbler” offense that can be filed as either a felony or a misdemeanor, depending on the criminal history of the defendant and the circumstances of the offense. If filed as a misdemeanor, the maximum sentence is a year in jail and substantial fines. If filed as a felony, the potential sentence is three years in prison. A bad check case will always be a misdemeanor if all of the following conditions are true:
In these cases, the penalty would be a maximum of a year in jail and court fines.
6. Criminal Defense for Writing or Passing a Bad Check
Writing a bad check is a crime that may be committed very easily, especially for those struggling financially. If you have been accused of writing a bad check, it is important that you consult with a Los Angeles Criminal Defense Attorney right away. There may be diversion programs available that could help avoid a criminal conviction altogether, and an effective criminal defense attorney can help explore these options. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who applies his years of courtroom experience in helping those charged with crimes of this nature.
For more information about writing or passing a bad check, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.