Bad Checks: Facing Criminal Charges
Owing someone money is not a crime, but Pennsylvania limits a creditor’s ability to collect on a civil judgment for money. Creditors, therefore, often resort to seeking criminal charges to pursue a criminal, bad check action, which must be taken very seriously.
The Consequences
You have a criminal record the moment you are charged. This is because the charge, even without a conviction, creates a criminal record. The fact of a criminal charge is searchable online. How do you get rid of the record? You can get the misdemeanor or felony charge expunged, but only if the charge is withdrawn or dismissed. If you are convicted, it cannot be expunged until you are age 70. Depending on the charge, if convicted, you could face heavy fines, a restitution order, probation and/or you could go to jail and face time in prison.
What’s Next?
OK, you were charged and face a hearing date. Now what? Unfortunately, you cannot simply call the creditor to make the charge go away. You have to appear in court and present your defenses.
The Result You Need
Get representation. You need to do what it takes to get the magistrate docket sheet to reflect a dismissal or withdrawal of the charge so that you can promptly get the charges expunged from your record to protect your name and reputation.
Why Am I Charged in a Certain County?
You can be hailed to appear in Pennsylvania for writing a bounced check or “bad check” even if you do not live in the county where charges are brought, so long as you wrote a check to a person or business in that county.
Be Leery of Any “Deal” Offered
The prosecution, district justice, and/or creditor may offer you a “deal,” such as: just pay the amount of the check, enter a guilty plea, and you’ll receive no penalty: no fine, no probation, no jail time. Sound good? Actually, that’s a horrible deal. As mentioned, a guilty plea to a misdemeanor or felony can never be expunged from your record, until you are age 70. Even if the charge is reduced to a summary offense, it cannot be expunged for at least five (5) years.
How Do You Win in Court?
You are innocent until proven guilty, but your defenses may not be evident from the record. You must appear and assert your defenses in court in PA.
What are the Defenses?
You should speak with a lawyer about how the bad checks criminal code applies to the facts in your case. The bad check at issue must have appeared legit and immediately payable on its face, when presented. A lawyer can explain more about this. Look at whether the check was post-dated. Also, the creditor must attempt to cash the check within a certain period of time, and then send you via certified mail a written demand to pay the face of the check, and give you 10 days to remedy the debt. If you fail to appear or articulate your defenses, you can be adjudicated a criminal, found guilty, and ordered to pay costs/fines, the amount of the check, plus interest and amounts for restitution, such as bank fees charged to the creditor from his account being overdrawn due to the fact that your check “bounced.”
The Bad Checks Statute
This is what the bad check statute provides:
§ 4105. Bad checks.
(a) Offense defined.— (1) A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee. (2) A person commits an offense if he, knowing that it will not be honored by the drawee, issues or passes a check or similar sight order for the payment of money when the drawee is located within this Commonwealth. A violation of this paragraph shall occur without regard to whether the location of the issuance or passing of the check or similar sight order is within or outside of this Commonwealth. It shall be no defense to a violation of this section that some or all of the acts constituting the offense occurred outside of this Commonwealth.
Note two things about this: very little contact with the Commonwealth of Pennsylvania is needed for to be hailed into PA to face bad check charges. As to venue: “An offense under subsection (a) may be deemed to have been committed at either the place where the defendant issues or passes the bad check or similar sight order for the payment of money or the place where the financial institution upon which the bad check or similar sight order for the payment of money was drawn is located.” § 4105(d)
Secondly, the prosecution must prove that you had actual knowledge of the fact that your check would be bad, when you wrote it. That said, knowledge is presumed in many common instances:
b) Presumptions.—For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, the following shall apply: (1) An issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if: (i) payment was refused because the issuer had no such account with the drawee at the time the check or order was issued; or (ii) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal. Notice of refusal may be given to the issuer orally or in writing by any person. Proof that notice was sent by registered or certified mail, regardless of whether a receipt was requested or returned, to the address printed on the check or, if none, then to the issuer’s last known address, shall raise a presumption that the notice was received. (2) A check or order stamped “NSF” or “insufficient funds” shall raise a presumption that payment was refused by the drawee for lack of funds. (3) A check or order stamped “account closed” or “no such account” or “counterfeit” shall raise a presumption that payment was refused by the drawee because the issuer had no such account with the drawee at the time the check or order was issued.
Criminal Punishment
Here is what the statute provides:
(c) Grading.– (1) An offense under this section is: (i) a summary offense if the check or order is less than $200; (ii) a misdemeanor of the third degree if the check or order is $200 or more but less than $500; (iii) a misdemeanor of the second degree if the check or order is $500 or more but less than $1,000; (iv) a misdemeanor of the first degree if the check or order is $1,000 or more but is less than $75,000; or (v) a felony of the third degree if the check or order is $75,000 or more. (2) When the offense is a third or subsequent offense within a five-year period, regardless of the amount of the check or order and regardless of the grading of the prior offenses, an offense under this section is a misdemeanor of the first degree unless the amount of the check or order involved in the third or subsequent offense is $75,000 or more, then the offense is a felony of the third degree.
…
(e) Costs.—Upon conviction under this section the sentence shall include an order for the issuer or passer to reimburse the payee or such other party as the circumstances may indicate for: (1) The face amount of the check. (2) Interest at the legal rate on the face amount of the check from the date of dishonor by the drawee. (3) A service charge if written notice of the service charge was conspicuously displayed on the payee’s premises when the check was issued. The service charge shall not exceed $50 unless the payee is charged fees in excess of $50 by financial institutions as a result of such bad check or similar sight order for the payment of money. If the payee is charged fees in excess of $50, then the service charge shall not exceed the actual amount of the fees.
Other Crimes
You may related face charges theft by deception, or theft by check. Our Pittsburgh Pennsylvania criminal defense lawyers defend all such charges.
Free Consultation
Call any time. Our Pittsburgh attorneys answer a few questions over the phone and offer aggressive, flat fee representation throughout Western Pennsylvania.
New Number: 412.342.0992
Use our easy Contact Form
