Check Fraud Laws

A check may be a simple scrap of paper, but it carries legal weight. Check fraud can result in time behind bars, as well as personal and professional challenges afterward. Someone arrested for this type of crime should not hesitate to consult a lawyer experienced in white collar crime cases like these. They should refrain from talking to police or prosecutors in the meantime, even if they feel sure that they are innocent. An unguarded comment to law enforcement could undermine an otherwise strong defense.

What Is Check Fraud?

Definitions of check fraud vary, but often it involves using a fake check or making out a check for more money than what is in the account.

Elements of Check Fraud

Misconduct involving checks can take diverse forms. Some of these offenses require a prosecutor to prove that the defendant made or used a fake or falsified check. (This may be treated as a type of forgery.) Other laws prohibit “bad” or “worthless” checks. These are checks made while knowing that there is not enough money in the bank account to cover the payment, or that the check will not be honored.

Statutes often require an “intent to defraud” or a similar mental state. In other words, the defendant must have sought to get something of value through their deception.

Example of Check Fraud

Phil steals a check from a mailbox and uses chemicals to remove the ink on it. He writes a new payee name and dollar amount on the check before depositing it. (This practice is often called “check washing.”)

On the other hand, suppose that Phil makes out a check for $4,000 while dating it for six weeks in the future. He currently has $3,000 in his bank account but expects to get another $3,000 at the end of the current month. This is not check fraud, even if Phil does not get the additional $3,000, since he believed that the account would have enough funds on the planned date.

Offenses Related to Check Fraud

Some other offenses that might be charged in situations similar to those supporting check fraud charges include:

• Forgery: making or using a false or fraudulent document with legal significance
• Larceny: the generic form of theft, involving taking someone else’s property with the intent to deprive them of it
• Credit card fraud: perhaps the defendant used a fake credit card rather than a fake check to get something of value

The definitions of these crimes may overlap in many states. A local attorney can explain exactly what a prosecutor needs to prove under a particular statute.

Defenses to Check Fraud

One of the most common defenses to check fraud involves arguing that the defendant lacked a culpable mental state. Perhaps they honestly believed that the check was genuine. Or a defendant charged with falsifying a check might argue that they had consent (or believed that they had consent) to alter the check from the party responsible for it.

Sometimes a defense called duress may defeat a check fraud charge. This requires showing that the defendant committed the crime while under an imminent threat of serious harm from a third party. For example, if a gangster told the defendant to forge a check while pointing a gun at them, they should not be convicted of a crime.

Penalties for Check Fraud

States often have multiple statutes addressing check fraud, each with its own penalties. For example, California has a statute prohibiting making or using fake or falsified checks, as well as a statute targeting bad checks. Each offense is a “wobbler,” which means that it may be charged as a misdemeanor or a felony. If it is charged as a felony, a defendant could face as much as three years of imprisonment.

In Florida, forging a check or passing off a forged check as genuine is a third-degree felony, which carries up to five years of imprisonment. Meanwhile, making a worthless check is generally a first-degree misdemeanor, which carries up to one year of imprisonment. If it is in the amount of $150 or more, and the payee receives something of value for it, though, this is a third-degree felony.

Massachusetts imposes up to two years in jail, or up to 10 years in state prison, for forging a check or attempting to pass off a forged check as genuine. Known as “larceny by check,” the bad check offense carries up to one year in jail if the check was worth no more than $1,200, or up to two years in jail or five years in state prison otherwise.

In Utah, forging a check is a third-degree felony, which carries up to five years in prison. Issuing a bad check generally carries up to six months in jail. A bad check worth more than $500 but less than $1,500 may result in up to 364 days, however, while a bad check worth at least $1,500 but less than $5,000 may result in up to five years in prison. A bad check worth $5,000 or more carries 1-15 years in prison. (If the defendant wrote multiple bad checks in a six-month period, their value is aggregated for sentencing purposes.)

Last reviewed September 2024