Legal Procedures. Prince William County Police Department CRIME PREVENTION ASSISTANCE. Contact Information

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1 CRIME PREVENTION ASSISTANCE The Prince William County Police Department s Crime Prevention Unit has developed a variety of programs focusing on crime prevention techniques for businesses. For more information about these programs, please contact: Crime Prevention Unit Prince William County Police Department 8900 Freedom Center Boulevard Manassas, Virginia Legal Procedures Contact Information PRINCE WILLIAM COUNTY POLICE Emergency: Non-Emergency: Major Property Crime: GENERAL DISTRICT COURT Civil: Criminal: MAGISTRATE EASTERN DISTRICT MAGISTRATE WESTERN DISTRICT COMMONWEALTH S ATTORNEY This booklet has been prepared by the Prince William County Police Department, with the assistance of the Commonwealth s Attorney and the Magistrate s Office. Revised 2008 Prince William County Police Department

2 Table of Contents Virginia bad check law..1 Explanation of Statutes..3 What checks are/are not covered...8 Collecting on a bad check...10 How to obtain a criminal warrant.11 Court procedure for criminal prosecution.13 Crime Prevention assistance. Back Cover Contact information. Back Cover of the investigation, whether criminal charges will be placed, and the court date when the defendant is arrested. C- In all bad check cases, the receiver of the check must be able to furnish an accurate physical description of the suspect. COURT PROCEDURE FOR CRIMINAL PROSECUTION All misdemeanor cases are heard in the Prince William County General District Court, starting at 9:00 a.m., Monday through Friday. All felony preliminary hearings are heard at 11:30 a.m., Monday through Friday. Complainants, along with their evidence, and witnesses should arrive at the Court at 8:30 a.m. to be available for review of the case by the Assistant Commonwealth s Attorney. The complainant who swore out the warrant will be responsible for being present in court and bringing with him/her any witnesses, including the person who accepted the check, the original check (bearing their initials on the back), a carbon copy of the five-day formal notice of dishonor to the maker of the check, and the green certified receipt and/or unclaimed letter, sealed from the Post Office. The evidence must be shown to the Judge at the trial. If there are any questions about the case, the complainant may contact the Commonwealth s Attorney s Office, but in most cases, the Commonwealth s Attorney will not have any information about the case until it goes to trial. The complainant must produce the evidence mentioned above. If for any pertinent reason that the complainant cannot be present in court, he must notify the court, or the Assistant Commonwealth s Attorney, if the attorney has been assigned to his particular case. This request for continuing the case should be at least twenty-four hours prior to the original court date. Page 13

3 2- It is necessary that this notice be sent via certified mail to the maker s or drawer s address on the front of the check. This will be sufficient and equivalent notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The notice should be delivered by certified mail with specific instructions, 3- Wait five full days after the date upon which the returned letter or receipt shows the notice to have been delivered. If any payment is received, the matter will end there. (Caution: Do not relinquish the original check on partial payment or when payment is in the form of another check). It is recommended that no partial payment be accepted if the case is to be prosecuted in a criminal court. Any partial payment eliminates the possibility of criminal prosecution due to credit being given for the remaining amount owed. If payment is not received and prosecution is to be pursued, the following procedures should be followed: A- You may contact the Magistrate nearest your home or business. Present all documents and evidence to him. If everything is in order, a warrant will be issued and forwarded for service to the Prince William County Police. A court date will be set at that time. In all bad check cases, the evidence, including the check, a copy of the five-day letter, and postal receipt will be retained by the complainant. It is the duty of the complainant to request a subpoena for all witnesses to the passing of the check, including the person giving the defendant the money, goods, merchandise, or other things of value, as well as the person who approved the check and talked to the defendant. B- There may be an instance in which the Magistrate determines that additional investigation is required before a warrant can be issued. In those instances the Magistrate will advise you to contact the Prince William County Police Department. Gather all pertinent information such as account and/or check numbers, dollar amounts, bank contact information, dates, times and witness information (name, address, phone number). Should the Police Department initiate an investigation the detective assigned to the case will retain all evidence, including the check, five-day letter, and postal receipts. He/She will advise you as to the results states, when a check is drawn on a bank in which the maker or drawer has Page 12 VIRGINIA BAD CHECK LAW This pamphlet is a brief summary of the criminal bad check law in Virginia, so it does not cover the civil bad check laws. It would be impossible to fully summarize the criminal statutes and case law in this format, so please consult the relevant code sections if you are interested in pursuing a case. The Code of Virginia can be accessed at the Prince William County Law Library, located in the basement of the Courthouse, or online at under "searchable databases." These include, but are not limited to, Virginia Code , , , , , , , and Issuing Bad Checks, etc., Larceny: Any person who; with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money upon any bank, banking institution, trust company, or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with, such bank, banking institution, trust company, other depository, for the payment of such check, draft or order, although no express representation is made in reference thereto, shall be guilty of larceny; and if this check, draft or order has a represented value of two hundred dollars or more, such person shall be guilty of a Class 6 Felony. In cases in which such value is less than two hundred dollars, the person shall be guilty of a Class 1 Misdemeanor. Any person making, drawing, uttering or delivering any such check, draft, or order in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein. Page 1

4 Issuance of two or more bad checks with a total value of $200 or more to the same person/business within ninety days: It shall be a Class 6 Felony for any person, within a period of ninety days, to issue two or more checks, drafts, or orders for the payment of money in violation of , which have an aggregate represented value of $200 or more which (I) are drawn upon the same account of any bank, banking institution, trust company or other depository and (II) are made payable to the same person, firm or corporation. Issuing Bad Checks on Behalf of Business, Firm or Corporation in Payment for Wages: Any person who shall make, draw or utter, or deliver any check, draft, or order for the payment of money, upon any bank, banking institution, trust company or other depository on behalf of any business firm or corporation, for the purpose of paying wages to any employee of such firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the account upon which such check, draft or order is drawn has not sufficient funds in, or credit with such bank, banking institution, trust company or other depository, for the payment of such check, draft or order, although no express representation is made in reference thereto, shall be guilty of a Class 1 Misdemeanor; except that if this check, draft, or order has a represented value of $200 or more, such person shall be guilty of a Class 6 felony. Issuance of Bad Check Prima Facie Evidence of Intent and Knowledge; Notice by Registered or Certified Mail: In any prosecution or action under the preceding sections, the making or drawing or uttering or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company or other depository unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with interest, and protest fees (if any), within five days after receiving written Page 2 Date Name Address City, State Dear : You are hereby advised that your check, number, dated 20, payable to: and drawn on this bank: in the amount of $, has been returned unpaid by your bank by reason of insufficient funds or account closed. This serves as a notice that you have five (5) days to redeem the above described check, along with interest and protest fees (if any), with cash. Failure to do so may result in legal action being taken by the undersigned, as provided by of the Code of Virginia, 1950 amended. (SIGNATURE) Print Name Address City, State Return Receipt Requested-Deliver to Addressee Only. Keep a copy and attach the Post Office receipt to it. HOW TO OBTAIN A CRIMINAL WARRANT Where criminal action is contemplated, the receiver of a bad check should follow the procedure set forth below. No warrant will be issued unless this procedure is followed: 1- Upon the return of a check by the bank, you should send a formal notice (via certified mail, return receipt requested) of dishonor to the maker or drawer of the check. The following form is suggested: Page 11

5 Check given by Endorsers. The bad check law is designed primarily to cover the offense when committed by the maker of the check. Ordinarily, it is not applicable to an endorser unless it can be established that he was a party to the scheme to defraud or that he had knowledge thereof. Occasionally, checks passed by an endorser are either forgeries or drawn in the name of a fictitious maker. On this type of check, it is advisable to have the advice of the Police Department before proceeding further. Checks given in other localities. Under our criminal law, an offense must be prosecuted where it is committed. The bad check law is violated in the place where the check is given or delivered. Therefore, when a bad check is given in another county or city, the proper authorities of that locality should be consulted. It should be noted that it is the policy of the Commonwealth s Attorney s Office not to extradite on Misdemeanor Warrants. COLLECTING ON A BAD CHECK: YOUR OPTIONS 1. Civil Action With reference to bad check matters where restitution is desired, it is recommended that a civil warrant be obtained by contacting the Magistrate s Office. The locations of the Magistrate s offices are at the end of this booklet. 2. Criminal Action The second option you have is to bring criminal action against the maker of the check. In doing so, you should remember that the criminal courts are not collection agencies and that you have no assurance of getting any money as a result of such action. Once a warrant is obtained, the complainant must go through with the case even though he may have received payment before the trial date. It has been the policy of the Commonwealth s Attorney in this county to prosecute all cases in which a warrant is obtained, and to refuse to drop such cases because payment is made, except in unusual circumstances. Page 10 notice that such check, draft, or order has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the last known address of the maker or drawer shall be deemed sufficient and equivalent to notice having been received by the maker or drawer. If such check, draft or order shows on its face a printed or written address, home, office, or otherwise, of the maker or drawer, then the foregoing notice, when sent by certified or registered mail to such address, with or without return receipt requested, shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. When a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case. Virginia Code Presumption as to notation attached to check, draft or order. In any prosecution or action under the preceding sections, any notation attached to or stamped upon a check, draft or order which is refused by the drawee because of lack of funds or credit, bearing the terms "not sufficient funds," "uncollected funds," "account closed," or "no account in this name," or words of similar import, shall be prima facie evidence that such notation is true and correct. If payment of any check, draft, or order for the payment of money be refused by the bank, banking institution, trust company or other depository upon which such instrument is drawn, and the person who drew or uttered such instrument be arrested or prosecuted under the provisions of or , for failure or refusal to pay such instrument, the one who arrested or caused such person to be arrested and prosecuted, or either, shall be conclusively deemed to have acted with reasonable or probable cause in any suit for damages that may be brought by the person who drew or uttered such instrument, if the one who arrested or caused such person to be arrested and prosecuted, or either, shall have, before doing so, presented or caused such instrument to be presented to the depository on which it was drawn where it was refused, and then waited Page 3

6 five days after notice, as provided in , without the amount due under the provisions of such instrument being paid. Virginia Code Evidence and presumptions in malicious prosecution actions after issuance of bad check. In any civil action growing out of an arrest under or , no evidence of statements or representations as to the status of the check, draft, order or deposit involved, or of any collateral agreement with reference to the check, draft, or order, shall be admissible unless such statements, or representations, or collateral agreement, be written upon the instrument at the time it is given by the drawer. If payment of any check, draft, or order for the payment of money be refused by the bank, banking institution, trust company or other depository upon which such instrument is drawn, and the person who drew or uttered such instrument be arrested or prosecuted under the provisions of or , for failure or refusal to pay such instrument, the one who arrested or caused such person to be arrested and prosecuted, or either, shall be conclusively deemed to have acted with reasonable or probable cause in any suit for damages that may be brought by the person who drew or uttered such instrument, if the one who arrested or caused such person to be arrested and prosecuted, or either, shall have, before doing so, presented or caused such instrument to be presented to the depository on which it was drawn where it was refused, and then waited five days after notice, as provided in , without the amount due under the provisions of such instrument being paid. Virginia Code Admissible evidence as to identity of party presenting bad check, draft or order. In any prosecution under or for the presentation of a bad check, draft or order, the following shall be admissible in any proceeding, hearing or trial of the case: 1. The unpaid or dishonored check, draft or order, bearing a notation thereon of the full name, residence address, home telephone number, and either the driver's license, social security or other governmentally issued identification number of the person who delivered such check, draft or Page 4 Forged checks are sometimes given, but they are prosecuted under another statute. Where there is a forgery, an affidavit of forgery must be obtained by the account holder by the holder of the check. The police department should then be consulted Checks given in payment of rent are not goods or service Checks received through the mail. Checks that are received through the United States Postal Service is not covered by the Criminal Statutes of Virginia. The Commonwealth would not be able to prove who actually uttered the check. In essence, no one would be able to identify the person who issued the check. All checks received through the mail can be handled through the civil courts, with the assistance of a civil attorney, if you wish, or the U.S. Postal Service. Checks given for Cash on Delivery. Unless the Delivery person follows the guidelines in In the case of cash on delivery, prosecution can be undertaken. The person working for the delivery company must be identified and be able to give a description of the person who gave him the check and be able to identify the maker. The person who writes the check must be the same person who hands the check to the delivery man. The delivery man must be available, along with the representative of your company who secures the warrant, for court appearances. Checks given as gifts. A gift is not a good or service. Two or more bad checks issued by the Defendant to the same person within 90 days. The same check cannot be the basis for prosecution under Code and Code If the first check the person issued is prosecuted under , it cannot also count as one of the two or more checks necessary for prosecution under A check for which payment was stopped. This does not qualify unless there is intent to defraud. Page 9

7 WHAT CHECKS ARE COVERED Not all checks returned by a bank for insufficient funds or credit with the bank fall within the scope of the Bad Check Law. Those covered by law are checks given in Prince William County for immediate payment for what would otherwise be a cash transaction (for goods, merchandise, money, other things of value or services) and returned by the bank for insufficient (or no) funds or credit with the bank. If, after the warrant has been issued, the Defendant wants to make payment in full, you can accept that payment, but the crime has already been committed and the case will still go to court. It is requested that you not give the check back to the person as this is necessary evidence needed in a prosecution if the Commonwealth's Attorney deems it appropriate to prosecute the case. Make sure you issue the Defendant a receipt for the payment. WHAT CHECKS ARE NOT COVERED The following types of checks do not fall within the scope of the bad check law. If these types of checks are returned from the bank your option is to bring a civil suit against the maker for the amount of the check. Bad checks given in payment of accounts due or in payment of a past debt. There is no property acquired or right lost when the check is dishonored. The parties stand as they did before with the money still owing A check given in payment of a bad check. This is an extension of credit for money used. Once you have accepted partial payment on a bad check and the person fails to fully reimburse you for the amount of the original bad check, it becomes a civil matter and no longer qualifies as a criminal charge. Postdated checks. A postdated check is a promise to pay at a later date or an extension of credit Any disclosure by the maker, at the time of delivery, that there are insufficient funds and an agreement by the merchant to hold the check. Page 8 order to the payee, the cashing party or its representative, and bearing the initials of the representative of the payee or cashing party to whom the check, draft or order was delivered, as evidence that such information was transcribed on such check, draft or order at the time of such delivery; or 2. A composite photograph of the check, draft or order, and of the person delivering such check, draft or order, and of other documentation identifying such person, such as a driver's license, social security card, or other governmentally issued identification card, taken together at the time the check, draft or order was delivered by such person to the payee, the cashing party or its representative. If such evidence is introduced, it may invoke an inference sufficient for the trier of fact to find that the person whose identifying information appears on the check, draft or order was the person who delivered the check, draft or order in question to the payee, cashing party or its representative. Virginia Code states the elements of the crime of passing a bad check. There are additional elements, as listed in the Virginia Code, for the crimes of: Issuing bad checks on behalf of business firm or corporation in payment of wages; Issuance of two or more bad checks, with a total represented value of $200 or more, to the same person or business from the same account within 90 days; and Issuing bad checks in payment of taxes. A. Elements of the Crime (1) The Defendant wrote, uttered, or delivered a check on a bank; (2) That the defendant knew at the time he acted that there were not sufficient funds in or credit with the bank to cover payment of the check; (3) The act was with the intent to defraud; and that (4) The check was in payment as a present consideration for goods or services which would otherwise be a cash transaction. If each and every one of these elements is met, the Defendant shall be guilty of the crime of larceny by bad check. The class of the crime depends upon the amount of the check. Page 5

8 B. Elements Explained One element requires the person to know the account had insufficient funds at the time he or she uttered (issued) a check from the account. The lack of funds creates an initial presumption of fraudulent intent, but that presumption is not conclusive, and it can be rebutted. By issuing the check, the person impliedly represents that the account contains funds sufficient to honor the check, and thus no express representation by the Defendant that there were sufficient funds is necessary. Therefore, the burden is on the Defendant to produce evidence that he expressly represented that there were insufficient funds in his account. As Virginia Code states, any notation, such as "not sufficient funds," "uncollected funds," "account closed," "no account in this name," etc., attached to or stamped on a check which is refused because of lack of funds shall be considered sufficient evidence to establish that the notation is true unless rebutted by the defendant. C. Class of the Crime 1. If the value of the check is $200 or more, the violation is a Class 6 felony, which means a possible term of imprisonment of 1 to 5 years, confinement in jail for 12 months or less and/or a fine of $2,500 or less. A felony check must be investigated by law enforcement. 2. If the value of the check is less than $200, the violation is a Class 1 misdemeanor, which means possible confinement in jail for up to twelve months and/or a fine of up to $2,500. You may contact a magistrate and request a warrant once you have met the criteria detailed later in this pamphlet by sending a Certified Letter with Return Receipt Requested and waiting for payment for at least five days. 3. There is no statute of limitations for a felony bad check offense, but there is a statute of limitations of 5 years for a misdemeanor bad check offense. Another element to be proved is the maker's fraudulent intent, which can be difficult to prove, but Virginia Code makes it easier. If the holder of a check sends notice to the maker of a check by certified or registered mail, evidenced by return receipt, at his last known Page 6 address, and the holder is not paid the amount due, interest due, and protest fees (if any) within 5 days of receipt of notice, the judge or jury may infer that the maker had the intent to defraud and had knowledge of insufficient funds in (or credit with) the bank. If the check shows an address on its face, then this notice, when sent by certified or registered mail to that address, with or without return receipt requested, shall be deemed sufficient and equivalent to notice having been received by the Defendant, whether such notice shall be returned undelivered or not. Giving this five day notice also has another advantage, as stated in Virginia Code : the complainant is protected from suits for malicious prosecution where she gives the notice required by Virginia Code but for some reason fails to prove her case. As also stated in Virginia Code , in a civil suit for malicious prosecution resulting out of the prosecution of a bad check, no statements or representations made about the status of the check shall be admissible in court unless the representation or statement was written on the check at the time it was given by the drawer. As Virginia Code also states, when a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case. This presumption can be rebutted by sufficient evidence from the Defendant. Another element that must be proved is that the check was made in payment as a present consideration for goods or services which would otherwise be a cash transaction. This means that bad checks given, instead of cash, as immediate payment for goods, merchandise, services, or other things of value may, if all other elements are met, constitute the crime of larceny by check. This also covers a worthless check given to obtain cash. In addition, to prove a bad check offense it is not necessary that anything be received in return for the check: the offense is complete when, with intent to defraud, a person makes or utters a check he knows or should know to be worthless. Page 7