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What to do if I get bad checks or deal with the crime of writing bad checks in Los Angeles or the rest of California, United States
The crime of writing or using bad checks is covered by California Penal Code 476(a). The law penalizes those who:
- Write and/or deliver an unsupported check.
- Despite knowing in advance that the check does not have sufficient funds in the bank to be cashed.
- With the clear intention of committing fraud.
If you were a victim of this form of fraud, you can file a lawsuit against the person who committed the crime.
Contact one of our expert bad check lawyers in California and we will tell you what to do. If we have a case, we can get your money back.
How is the crime of bad check fraud set up in the United States?
The making, possession for use, and use of counterfeit checks in the US is considered a crime. This crime is constituted with the sole intention of committing it. For example:
- A shopper pays a check for a suit and the store finds that he or she has no funds.
- A person attempts to cash a check at a bank or other establishment knowing that their bank account is overdrawn; or
- They write a check on a bank account that has already been closed.
If the charging party proves the issuer’s intent to commit bad check fraud or writing bad checks in California, the defendant will be convicted.
However, writing or altering a check with false information is not a crime in itself. What configures the crime is the signing of the document and trying to collect or pay it. That is where the criminal responsibility actually derives from.
What is considered check fraud in California?
Regarding checks, California law considers a crime to:
- Falsify it in its entirety.
- Sign with an invented or fictitious name.
- Alter or modify the date or the original sum.
- Alter or modify the name of the original beneficiary.
- Modify the routing number of the check.
- Write a check and forge the issuer’s signature.
- Writing a fake bank name on the check.
What other action related to bounced checks is considered a crime?
The legislation includes the illegal use of payment instruments other than checks as a crime. For example:
- Issue or attempt to collect false or altered bills of exchange.
- Issue written payment orders signed and addressed to banks, companies or natural persons.
Crimes related to writing bad checks in California
Due to the use of digital technology, this crime appears associated with others with:
- Electronic fraud.
- Identity theft (phishing).
- Grand theft.
- Petty theft.
- Defraud of documents and brand theft (intellectual property).
Evidence to establish the crime of check fraud
To prove this crime, the prosecution must prove the following:
- The defendant made, possessed, used, attempted to issue, or issued an altered or forged check for the purpose of paying or purchasing a debt, good, or service.
- The defendant was aware that the check was inauthentic, because it was counterfeit or altered.
- At the time of using the check, the defendant intended to commit fraud against the plaintiff.
- The purpose of the check in the defendant’s possession was always to use it to deceive and defraud the plaintiff by passing it off as genuine.
During the trial, the prosecutor must discover the reasons that the defendant had for committing the crime. For example, acquiring a property or paying a debt. They would also be able to determine if it was repeated criminal conduct or it was circunstancial.
How is intent to defraud with bad checks demonstrated?
It is done by proving that the action sought to cause a loss, damage or injury to the plaintiff. Either by:
- The usufruct of a good (car, house, service) without the intention of paying for it; or
- The non-payment of legally contracted debts with a company, government agency or person.
Hence, it is not necessary to prove whether the crime materialized or not. The intend to commit it is enough for a penalty.
What else must the prosecution prove?
They must show that in addition to writing and signing the check, the defendant:
- Intended to collect or deliver it.
- Submitted or delivered the check to the person they were trying to defraud; or
- Filled out and signed the check in the plaintiff’s presence, implicitly assuming that they would deliver it to him.
Example, Jackson asks Alberto to pay him a debt and Jackson fills out the check in his presence. It goes without saying that the check will be delivered, because the action is related to the request.
When is a check considered altered?
The alteration involves adding, deleting or changing part of the original data of the check. For example, adding zeros, changing one number of the amount to another or the name of the beneficiary.
When does a person commit the crime of fraud with a check?
It is enough that you issue the check and pass it to the person or entity, explicitly or implicitly assuring that the check has funds to cover it.
How is bad check fraud and writing bad checks penalized in California?
Check fraud laws establish penalties, regardless of the outcome of the action. Whether or not the defendant has achieved his purpose of actually taking advantage of the victim.
It can be penalized as a misdemeanor or a felony (a wobbler ), depending on the:
- Circumstances of the punishable act;
- Defendant’s criminal record; and
- The amount of the check.
If the check was issued for an amount greater than $950, it will be charged as a felony. On the other hand, if the amount is less than $950, it will be punished as a misdemeanor.
What are the penalties for the crime of fraudulent checks?
As a misdemeanor convictions include:
- Time in prison that may not exceed 12 months;
- Payment of a fine not greater than $1,000;
- Both punishments (fine and prison).
As a felony, the accused can be penalized with:
- A prison term of 16 months, two years or three years, depending on the judge’s estimation.
- A fine not to exceed $10,000.
- Jail and fine according to the circumstances of the case.
The felony punishment may also include:
- Civil actions and penalties.
- Federal charges.
What are the penalties provided for in the California Civil Code?
California Civil Code CIV § 1719 further provides that, notwithstanding criminal penalties, the defendant must:
- Pay/defray the beneficiary of the check for all the money for which it was issued:
- Plus a service charge not to exceed $25 for the first NSF check.
- That amount will increase to $35 for each subsequent bad check written.
- Pay triple the amount of the check, if the payee of the check sends a request for payment by certified mail to the issuer of the check:
- Reporting these provisions of the Civil Code.
- The amount of the check.
- The amount of the service charge.
Exceptions provided by law to process check fraud as misdemeanor or felony
The only two exceptions to processing this offense as a wobbler, regardless of the amount of the check, are when:
- The defendant has previous convictions for a sexual offense or a violent crime. In that case it could be classified as a misdemeanor or a felony.
- If the defendant has received a prior conviction for identity theft it will be considered a felony (Proposition 47).
What federal charges can be imposed for this crime?
Check fraud carries more severe federal charges. Punishments for this crime can increase to up to 30 years in prison and fines of up to $1 million. This is established by section 1344 of the federal law 18 USC.
Possible defenses against a check fraud charge
When consulting with our criminal defense attorneys who are experts in this type of case, the circumstances of the event will be evaluated. The type of defense will depend on the crime charged and its classification since it is a wobbler.
The goal of the defense will be to get the judge to dismiss the charges. Ultimately, if this is not possible due to the opposite evidence, have it considered a misdemeanor.
The most common defense strategies in these cases are:
- The defendant never intended to commit check fraud.
- He or she was falsely accused or misidentified by the police/plaintiff.
- He or she had authorization to modify the check.
- The check is authentic.
- There is not enough evidence to prove the crime and convict the defendant.
- At the time of the arrest, the police violated the client’s rights.
Elements to prove that you did not commit a crime with checks
There are several pieces of evidence that can help the defense prove that your client did not commit check fraud. The most effective evidences in these cases are:
- Witnesses whose testimonies show that the defendant did not act in bad faith or attempt to defraud the plaintiff. They can be a companion of the defendant at the time of issuing or paying with the check.
- A document or card from the company you work for that clearly indicates that you were acting on their behalf when paying with the check or trying to cash it.
- Authorization or permission to issue and modify the content of the check.
- Bank records or entries certifying that at the time the check was issued, the account had sufficient funds.
If I refund the money, will the judge dismiss the crime?
No. But you could get the court to reduce the charges against you. Nor will admitting to writing and signing an unpresented bounced check cause a judge to dismiss the charges.
What happens if the person does not pay?
If you don’t pay the full amount of the check, any additional fees, and postage costs, then you’ll have to pay:
- The total amount of the check, minus any partial payments made by the issuer on the amount due.
- The charges derived from the service.
- Plus damages equivalent to three times that amount, which may not be less than $100 or more than $1,500.
Note: If the person takes responsibility for the tripled damages, they will no longer be responsible for these payments.
On the other hand, the beneficiary may collect service charges, treble damages and mailing costs, only if it proves that there was no good faith dispute between the parties.
Does being accused of check fraud have immigration consequences?
Yes. Whether you have legal status or are looking to fix your papers, this crime carries not only jail time and fines, but also deportation from the United States.
Remember that we are also immigration lawyers in Los Angeles. This ensures a comprehensive defense for you or any member of your family in trouble.
Can I expunge the criminal record for the crime of writing bad checks in California?
Yes. To achieve this, you must meet several requirements demanded by the court:
- Successfully complete parole.
- Serve the sentence in prison the sentence imposed.
If you want to learn more about this topic, read our special article on how to clean a criminal record.
Where can I report a bouncing check scam?
If you suspect you have been the victim of a fake check scam:
- Report it immediately to any of these government institutions:
- Locate a state or local consumer protection agency. The NAAG provides a list of state attorneys general.
- File a complaint with the Internet Crime Complaint Center run jointly by the FBI and the National White-Collar Crime Center.
- Call one of our expert bad check crime attorneys in Los Angeles.
How to report a fraud directly to the FBI?
The steps to report check fraud to the FBI are as follows:
- Search the Internet for the FBI office closest to you.
- Select the “Use your zip code” option found in the “To find out which office serves a particular area” section. Type in your city’s ZIP code and click “Go.”
- When you are at the specific office, make a note of the phone number listed there and ask to speak to a Special Agent in Charge (SAC).
- Say you are calling to report check fraud and provide your personal information:
- Full name and contact address.
- Description of the fraud.
- Full name, address and other information of the person who committed it.
- Evidence of the reported crime.
Tips to avoid bad check scams in the United States
- Make sure that the check issued is from a real bank. You can check with the FDIC , which provides the names and locations of all legitimate banks.
- When calling the bank it is best not to use the phone number printed on the check. Search on Google or any bank directory.
- When doing this procedure, it is convenient to consider who issued the check.
- Only customers with credit, who pay by check to be collected within a certain period, could be allowed. Of course, have the forecast that the check has the current date.
- Do not ship merchandise paid for with checks. Unless the check is from the supplier’s own bank and you can cash it right away.
- Keep in mind that bad checks from the same bank bounce immediately upon deposit. While different bank checks the next day.
- Avoid as much as possible that payments are made by check. It is preferable to request a transfer.
- The current financial system and technology offer immediate forms of payment today. When a buyer insists on paying by check and not by wire transfer, something may be wrong.
If you are facing charges for writing bad checks in California or have been a victim of this crime, call us now. Hire the best bad check crime lawyers in Los Angeles to ensure the best defense possible. During the first consultation without obligation we will clearly tell you what your best options are.
LATINOS WITH OVER 50 YEARS EXPERIENCE
Tell Us Your Case