Writing Bad Checks is a Crime – What You Should Know

Writing bad checks is a crime, and may also subject the bad-check writer to a lawsuit for twice the amount of the check. This deals with the crime of bad-check writing and the separate civil action for money damages.

The Criminal Component

Bad-check writing is classified as theft in the Arizona Criminal Code. A person is guilty of bad-check writing if he issues a check knowing that he does not have sufficient funds on deposit with the bank for the payment in full of the check “as well as all other checks outstanding at the time of issuance.” There are three defenses to bad-check writing:

1. the payee was notified in advance that the check writer did not have sufficient funds on deposit to ensure payment of the check;
2. the check is post­dated and sufficient funds are on deposit on the later date for payment of the check; and
3. insufficiency of funds resulted from an adjustment to the check writer’s account by the bank without notice to him.

If payment is refused by the bank on which the check is drawn within 30 days after the check is issued, the person to whom the check was issued may send a notice of dishonored check to the check writer, requiring payment of the check amount, plus reasonable costs and protest fees. The check writer has 12 days from his receipt of the notice to remit full payment to the check holder. If payment in full is not made within that time, the holder of the check may turn the matter over to the county attorney for criminal prosecution.

Except as provided in the next paragraph, issuing a bad check is a class 1 misdemeanor. A class 1 mis­demeanor is punishable by up to six months in jail and a fine of up to $2,500.

Issuing a bad check in the amount of $5,000 or more is a class 6 felony if the check writer fails to pay the full amount of the check, including accrued interest at the rate of 12% per year and any other fees provided by law, within 60 days after receiving notice of the dishonored check. A class 6 felony is punishable by up to one and a half years in prison and a fine of up to $250,000.

The county attorney in each county is responsible for pros­ecuting bad-check cases. In Arizona’s two most populated counties, Maricopa and Pima, the county attorneys have developed quite useful Web sites for victims of bad checks. In Maricopa County, go to www.maricopacountyattorney.org to view information or to download submittal forms from the Check Enforcement Guidebook. In Pima County, go to www.pcao.pima.gov/badcheck.htm for information about its bad check program and to obtain forms and guides. A visitor to either Web site will be able to download a Bad Check Guidebook and all the forms needed to submit a dis­honored check to that county attorney’s bad-check program.

The Civil Component

A bad-check writer may also be liable for civil damages. The statute creating the civil action says that a person who, with intent to defraud, gives to another person a check, knowing at the time of delivery that he does not have an account or does not have sufficient funds in his account to pay the check in full, is liable to the holder of the check for twice the amount of the check, or $50, whichever is greater, together with costs and attorney’s fees.

To establish liability under this section, the holder of the check must give the check writer notice of nonpayment and afford him 12 days to pay the check. The notice of nonpayment may be given to the check writer in person or in writing. Written notice is recommended. Notice in writing must be given by certified mail, return receipt requested, to the person at his address as it appears on the check.

A lawsuit under this section must be filed within one year.