Many checks have been written by individuals who do not have adequate funds in their bank accounts to cover the expenses. However, the mere fact that a check bounces is not necessarily grounds for a criminal case. In some circumstances, a jail sentence can follow a conviction for bouncing a check.
Under California Penal Code Section 476 (a) it is a crime to write a check when:
- The individual knows there are insufficient funds in their bank account to cover the full amount of the check and,
- The individual intends to commit fraud.
The intent is very clear in some cases. If a check is drawn on a bank account that was closed by the owner six months earlier, the intent to commit fraud is well established.
If a check is cashed when the person knows there are insufficient funds in the account, criminal charges may be filed. The fact that the payee suffered no loss is irrelevant. The intent is sufficient to warrant a conviction under California's bad checks law.
This type of check fraud in California does not require proof that a check was fabricated or that false information was written on the check. The crime is committed when a person knowingly writes a check for an amount where there are insufficient funds in the account.
The Penalties for a Bounced Check in California
Writing a bounced check can be charged as a misdemeanor or a felony in California depending on a range of factors.
A conviction for passing checks that bounce in the amount of $950 or less, with no previous convictions for theft, will be charged as a misdemeanor. The individual could face up to one year in county jail and a maximum fine of $1,000.
California's bad checks law comes under the legislature's determination that the crime is a 'wobbler'. A wobbler means that in certain instances, prosecutors can file these types of cases as either a misdemeanor or a felony, depending on the circumstances of the offense, criminal history and the amount of the theft. The prosecutor has quite a bit of discretion when determining the types of charges to file.
If convicted of a felony, you can face up to
up to three years incarceration in a California state prison and a maximum fine of $10,000.
The victim can also make a claim for full restitution and compensation both with the criminal court and in civil court. The victim in certain circumstances can request damages in addition to the lost monies listed on the bad check.
There are a number of defenses available for charges under
Penal Code Section 476 (a).
If the prosecution lacks evidence to establish criminal intent, the defense may have success in fighting the case. They include the following:
- The defendant informed the payee there were insufficient funds in the account;
- The defendant post-dated the check;
- The bank made an error whereby the funds the defendant believed were in the account actually were not there;
- The defendant honestly believed they would have sufficient funds for the check to clear;
- The defendant placed a "stop payment" on the check in good faith;
- The defendant acted under duress.
The biggest mistake one can make if charged with check fraud is to think it's a minor crime and that one will not face consequences including jail time. It's important to hire an experienced Orange County criminal defense lawyer as soon as possible. An attorney can help you establish defenses that may not be immediately apparent to better the final outcome of your case.
Contact the Law Offices of Virginia Landry at 949.585.7400 or see our