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April 26

Bounced checks as a misdemeanor/felony in the US

How can it be that writing a check without sufficient funds is a misdemeanor/felony in the US? Plenty of people could write a check in the mistaken assumption that it's covered, and so commit a crime unintentionally. Isn't that conflicting with the mens rea principle? Obviously, plenty of people could write a check without funds, and claim ignorance anyway, but how would you prove the opposite?--Llaanngg (talk) 20:49, 26 April 2016 (UTC)[reply]

It could depend on the aftermath. If you find out you're overdrawn, and you go to the bank and talk to someone about making it right, you'll probably fare better than if you skip town. ←Baseball Bugs ^{What's up, Doc?} carrots→ 21:06, 26 April 2016 (UTC)[reply]

I'm not going to check all 50 states, but I imagine that in all of them it's only a crime if you do it knowingly. For example, in California, it's a crime to "willfully, with intent to defraud" write a check "knowing at the time" that you don't have sufficient funds (§476a). ~~Proving intent may be difficult, but that problem isn't specific to bounced checks.~~ -- BenRG (talk) 01:45, 27 April 2016 (UTC)[reply]

Actually, California, New York and Arizona law (the latter two mentioned below by Medeis) all shift the burden of proof by saying that the check writer is presumed to know about the insufficient funds (unless they make prompt restitution, at least in New York and Arizona). It's still not a crime if you can prove that you didn't mean to do it. This is probably also true in other states. -- BenRG (talk) 19:59, 28 April 2016 (UTC)[reply]

Ignorantia juris non excusat. With that said, when considering how the law is practiced versus how it is written, you need to consider selective enforcement. Often governments won't bother with charges unless someone writes bad checks repeatedly. And in sentencing, mitigating factors may be taken into account. (Also there's the snarky answer: "Who writes checks anymore?") --71.110.8.102 (talk) 04:43, 27 April 2016 (UTC)[reply]

Whether you write checks or have all your bills auto-drafted, for example, "insufficient funds" can happen. ←Baseball Bugs ^{What's up, Doc?} carrots→ 10:47, 27 April 2016 (UTC)[reply]

I think the OP was asking about ignorance of the facts, not ignorance of the law. --PalaceGuard008 (Talk) 12:27, 27 April 2016 (UTC)[reply]

Yes, and more specifically, about ignorance of the intent. StuRat (talk) 13:48, 27 April 2016 (UTC)[reply]

First, somebody would have to press charges for it to get to court, and that's only likely to happen if the bank or business ends up stuck with the bad check. That is, if no other payment arrangements are made, and the item is not returned. Even then, if it's for a small amount, they aren't likely to bother with all the expenses of a court case (jurisdictions where the loser pays the costs make that less of a concern), they would probably just sell the debt to a collection agency instead. Of course, the threat of criminal charges might be used even if they have no intention of actually bringing charges.

Once it gets to court, they would examine bank records to figure out what happened. For example, if the accused drew the check on the wrong account, and they have another account where it would have been covered, then it looks like a mistake. Or if they made a deposit that should have covered the check, but it wasn't applied in time, they would also look innocent. On the other hand, if they wrote a check for an amount far beyond what they've ever had in any account, then they would look guilty. StuRat (talk) 12:54, 27 April 2016 (UTC)[reply]

"But I can't be out of money in my account, I still have checks left !" StuRat (talk) 12:56, 27 April 2016 (UTC) [reply]

Semi-related: A man's checkbook is stolen, but he doesn't report it, because the thief is spending less than his wife had been. ←Baseball Bugs ^{What's up, Doc?} carrots→ 14:47, 27 April 2016 (UTC)[reply]

As for some references, in NY, writing a bad check is a class B misdemeanor. It is not a crime if you cover the amount due within ten days, but you are liable to be subject to an overdraft fee by both your own bank and by the business to which you wrote the check (typically $35, I do not know if that amount is regulated); see http://ypdcrime.com/penal.law/article190.htm#p190.00

In Arizona, a bad check written for under $5000.00 is a class 1 misdemeanor; for that amount or over is a class 6 felony. Again, a defense is if repayment is made within a period determined by law. The writer is subject to a $2500,00 fine, 6 months in jail, and full restitution, which I assume is for the misdemeanor crime. See http://www.pcao.pima.gov/documents/2.22.16%20Bad%20Check%20Guidebook.pdf μηδείς (talk) 20:36, 27 April 2016 (UTC)[reply]

The Arizona code is here. In New York and Arizona, as in California, it's only a crime if you do it knowingly (though all of them have language that shifts the burden of proof to the defendant). -- BenRG (talk) 19:59, 28 April 2016 (UTC)[reply]

Also see check kiting and paper hanging. StuRat (talk) 23:51, 27 April 2016 (UTC)[reply]

Check kiting is a bit like pulling a Ponzi scheme on yourself. — Preceding unsigned comment added by Baseball Bugs (talk • contribs) 10:15, 28 April 2016 (UTC)[reply]

Well, more like time-based arbitrage: You're counting on the check being credited to one account before it gets deducted from the overdrawn account. --Jayron 32 00:02, 29 April 2016 (UTC)[reply]

I'll also mention that the way bouncing a check is treated seems to differ geographically and historically. Before the advent of ATM cards (the first test region for which was the Delaware Valley, where they were called MAC (money access cards) for debit transactions), check writing was much more common.

In the Northeast, little of this was done by long-distance voyagers or passers-through. Signs in stores usually said something like, "no out of state checks, ID required, a $20 fine will be assessed on returned checks" whereas signs in the South often advised those who write bad checks will be prosecuted. You'd see this in Virginia or Florida on school trips and so forth in less densely populated areas where a lot of commerce was done by travellers, not locals, say at a roadside diners that couldn't afford to turn away non-locals without cash.

I'd had a MAC card for years in NJ, and was shocked on a trip to NYC in the early 90's to learn that they had no such device, but they soon installed the first ATM on the outside of the Hotel Pennsylvania just across the street from Penn Station, and then the process was rolled out nationwide. I can't remember the last time I wrote a check for anything besides the rent, and in that case they know where you reside. Most banks in the NE don't offer checks besides maybe 10 free ones when you open an account, and they all offer ATM cards, which are often called "checking cards". μηδείς (talk) 01:57, 29 April 2016 (UTC)[reply]