Check fraud is the unlawful alteration or forging of a check to defraud someone by misrepresenting the check as valid or genuine to illegally withdraw or acquire money.
The fraud includes such offenses as passing a bad check, check kiting and embezzlement. The following lists the elements involved in these particular offenses:
Elements of Check Fraud
The elements of a check fraud offense in California include:
- Possessing, passing, making or attempting to pass or make a fake or altered check
- Knowing that the check was fictitious, altered or forged
- Made with the intent to defraud by representing that the check was valid or genuine
Forged or Altered Checks
Forging a check can be a federal offense if a bank is defrauded and if a prosecutor decides to charge the offender with counterfeiting. Altering a check is accomplished by changing the dollar amount, routing number or date. Forgery is using the payee’s name on the check without that person’s consent to withdraw funds from that person’s account or to use it to acquire property or services.
Intent and Misrepresentation
Intent and misrepresentation are simple to prove in these cases. Merely presenting the altered check is proof of intent if you did so to illegally obtain funds or property.
You also are misrepresenting the genuineness or validity of the check by passing it or attempting to pass it.
- Check Kiting
This type of fraud involves opening accounts at two separate banks. The perpetrator writes a check on one account, knowing it does not have sufficient funds, and deposits it into another account. There is a lag between the time a deposit is made into the second account and the money being deducted from the first account where money is available. This might be done by someone who wants to launder money.
Check kiting charges can also include bank fraud and wire fraud.
- Bad Checks
This is simply passing off a check with the knowledge that your account has insufficient funds and you intended to commit a fraud. Generally, this is not prosecuted unless you use a fictitious bank or bank account or one that you knew was closed.
You could be charged separately with forgery if you forged someone else’s name on the check without their consent though you cannot be convicted of both check fraud and forgery if based on the same instrument or conduct.
You are likely to be charged with grand theft along with check fraud if the fictitious check is for over $950 and you unlawfully acquire property by use of that check. If the check is for an amount at or under $950, you may be charged with petty theft and check fraud.
A criminal defense lawyer can be invaluable in helping you fight against unwarranted check fraud charges, or use his or her skills to reduce the charges to a misdemeanor or some other alternative. Some defenses may include:
- A check was not properly filled out or was incomplete.
- You had permission to alter or change the name of the payee or amount on the check
- You had no intent to use the check
- Someone else gave you a fictitious check to use and you were unaware it was not genuine
- There are other defenses that a criminal defense lawyer can discuss with you once he or she has investigated your case.
Degrees of the Offense
California treats a check fraud charge as a “wobbler,” meaning it could be charged as a misdemeanor or felony depending on your criminal history and the circumstances of your individual case. If this is your first and only criminal offense and the check amount is under $950, you would likely be facing misdemeanor charges.
A misdemeanor carries county jail time of no more than one year and/or a fine up to $1,000. If the charge is a felony, you face either probation and up to one year in county jail; or from 16 months to 2 or 3 years in state prison along with a fine up to $10,000.
Under federal immigration law, if you are an alien or permanent resident and you commit a crime of moral turpitude such as check fraud, you may have serious immigration consequences. In some cases, you could face potential deportation and not be eligible for cancellation of removal relief.
Call the Law Offices of Ramiro J. Lluis
Facing a charge of check fraud or a related offense can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with fraud, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.