Issuing Bad Checks and Check Forgery

Does your case involve an allegation that you issued a bad check, or committed forgery in relation to the negotiation of a check?

In either scenario, a check is involved in the alleged criminal conduct. But these offenses fall under different laws and are viewed very differently by prosecutors and judges in terms of potential moral culpability.

Issuing Bad Checks

The crime of Issuing Bad Checks is defined by statute as follows:

• "A person is guilty of issuing a bad check if he issues or passes a check for the payment of money and payment is refused by the drawee, except in cases where a legal stop payment order has been issued or where the drawee refuses payment for any other reason through no fault of the person who issued or passed the check."

Issuing a bad check is a class A felony if the face amount of the check exceeds $1,500.00, or the defendant has two or more prior convictions within a 12-month period where the aggregate face amount of the checks exceeds $1,500.00.

Issuing a bad check is a class B felony if the face amount of the check exceeds $1,000 or two or more checks within a 12-month period have an aggregate amount meeting that threshold.

Issuing a bad check is a class B misdemeanor if the face amount of the check is less than $1,000.00, unless the person has a prior conviction within the previous 12 months, in which case it is a class A misdemeanor.

Issuing Bad Checks - the Landmark Decision in Stewart

Criminal and appeals defense attorney Theodore Lothstein successfully litigated one of the most important cases in the modern history of appellate interpretation of the "issuing bad checks" law, State v. Stewart, 155 N.H. 212 (2007). Its an incredible case that reminds us that some misguided prosecutors treat the concept of "prosecutorial discretion" as license to try to stretch the law to cover scenarios that practically no one would view to be criminal or even immoral.

The facts? Mr. Stewart issued a check but told the recipient not to cash it until a certain date, because the underlying bank account would not have sufficient funds until that date. The recipient ignored those instructions, tried to cash it earlier, and it bounced, of course. The recipient then went to the police.

Prosecutors obtained a grand jury indictment (reminding us that in New Hampshire, a prosecutor can get a grand jury to indict a ham sandwich!). The Judge gave an erroneous instruction that basically told the jury that because the defendant knew the funds were insufficient when the defendant handed over the check, the defendant was guilty. The jury reluctantly followed that instruction and convicted the defendant.

The New Hampshire Supreme Court reversed, holding that there is no crime unless the defendant believes the funds will be insufficient on the date that the check is supposed to be negotiated (deposited in a bank or cashed). That put an end to the prosecution of Mr. Stewart. You can read more about the Stewart case, and some of our other appellate victories here.

Issuing Bad Checks - An Escape Hatch

The crime of "issuing bad checks" is also the only crime on the books where a person can "undo" the crime and avoid criminal prosecution by paying off the victim. Specifically, if the person who wrote the bad check provides full restitution for the amount of the check together with all costs and protest fees within 14 days. This "loophole" is there for an obvious reason: most of the time, people who issue a bad check didn't mean to do anything wrong, they just didn't know the account was underfunded.

Check Forgery

Check forgery is a very different crime that also involves a check. This crime, which also covers forgeries of medical prescriptions, legal documents, phony debts, etc., is defined as follows:

• A person is guilty of forgery if, with purpose to defraud anyone, or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he:
  (a) Alters any writing of another without his authority or utters any such altered writing; or
  (b) Makes, completes, executes, authenticates, issues, transfers, publishes or otherwise utters any writing so that it purports to be the act of another, or purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed.

Forgery of a check is a class B felony, no matter what the "face value" of the check is. This shows us that the law views this crime to be more serious and more morally culpable than the crime of issuing bad checks, where the crime cannot be a felony unless the value or aggregate value of multiple checks is more than $1,000.00.

Check Forgery - Common Scenarios

These charges are frequently brought against clients who are afflicted by substance addiction. Unfortunately, that means we handle these cases all the time. People suffering from addiction become desperate for money to buy drugs, and forge a check taken from a family member, stolen during a burglary, etc in order to try to cash it at a bank. We work with our clients to try to get them effective treatment, which helps them on their journey towards rehabilitation, and helps us advocate for a humane disposition from the court.

Alternatively, we have represented innocent clients falsely accused by a vindictive or mean-spirited accuser, usually within the context of a business relationship or sometimes within an intimate relationship. For example, an employer gives authority to an employee to write checks to cover certain expenses; gets in trouble with his business partners (or spouse!) for the expenses; and then falsely accuses the employee of writing the check without authorization - a false accusation of the crime of forgery. If you are an employee of a small business who is given authority to write checks or use a "signature stamp" on checks - get that authority in writing. Protect yourself. But if those protections fail, or if you have been victimized by a person you thought you could trust, we are here to help.

Our Firm and Check Cases

If you or someone close to you is being investigated or prosecuted for the alleged crime of Issuing Bad Checks or Forgery, call us to schedule a consultation with Ted Lothstein or Richard Guerriero. In most cases, as long as there is a pending charge in a NH court, we can provide a free consultation.