Bad Check Procedures
- Make sure that the crime fits the statute. Section 45-6-316 MCA states, “(1) A person commits the offense of issuing a bad check when the person issues or delivers a check or other order upon a real or fictitious depository for the payment of money knowing that it will not be paid by the depository. (2) If the offender has an account with the depository, failure to make good the check or other order within 5 days after written notice of nonpayment has been received by the issuer is prima facie evidence that the offender knew it would not be paid by the depository.”
- Restitution is not guaranteed by criminal prosecution although it will be requested as part of the sentence. Make every effort to contact the maker of the check to collect. Keep in mind that repayment by civil law allows for greater punitive restitution than does criminal law.
- No insufficient funds check will be prosecuted unless notice of nonpayment and demand for payment has been served to the issuer. Service can be completed by certified mail, or by the Sheriff’s Office for a fee, or by any party not involved in the action with completion of a sworn statement of service. The check writer has 5 days to make good on the check after notice of nonpayment; criminal action cannot begin until after that period. For your convenience, a notice of nonpayment template form may be obtained from the Madison County Sheriff’s Office.
- No check will be prosecuted unless the county prosecutor and Sheriff’s Office can be furnished with an address of the person who wrote the check. Verify that the address printed on a check or on given identification is current. If in doubt about the current address status when receiving a check, request a current utility bill in the check writer’s name.
- The Madison County Sheriff’s Office requires positive identification of the person to serve an Arrest Warrant and complete prosecution. Obtain the full name of the check writer (no initials), driver’s license number and, if possible, social security number. Check the identification given to ensure it is valid and current. Do not merely take the word of the check writer regarding identity. If the person does not have a driver’s license, the Madison County Sheriff’s Office requires: Name, Date of Birth, Height, Weight, Eye Color, Sex, Race and Social Security Number. Prosecution of a suspect clearly identified by store video camera is possible, but is more difficult. The cashier taking the check can be an eye witness to identification but must be prepared to testify in court.
- Criminal prosecution will not be authorized on the following bad checks:
- A posted dated check is merely an IOU and cannot be prosecuted criminally.
- Hold checks (payee requested be maker to hold check).
- Stale checks. Checks must be presented to the bank within 60 days of being written.
- To initiate prosecution the original check or bank certified copy of the check must be attached to the complaint. The original will not be redelivered to the Defendant until complete restitution is made. Make a copy for your records.
- If a person lives out of state, extradition for a single bad check for less than $1500 is not possible, though it may be possible for a series of checks even if the amount is less than $1500.
- All bad checks delivered to the Madison County Sheriff’s Office for investigation must comply with the foregoing, and must be accompanied by a signed check complaint form. The check holder or authorized agent may sign the complaint form. Checks filed will be prosecuted forthwith, and are not held for collection.