Committing a fraudulent action using a check has far-reaching consequences such as jail time, loss of employment, and difficulties in accessing employment opportunities. If you are facing charges for check fraud, you need to understand the various laws, penalties, and other consequences of the offense. You also need to know the different techniques you can apply to defend yourself against these charges. The Orange County Criminal Lawyer defends people facing charges for various forms of fraud crimes, including check fraud. Here are some of the facts you need to know about check fraud in California.
Overview of Check Fraud PC 476
Check fraud is the offense where you create, write, pass, possesses a fake or altered check intending to defraud another person of money, goods, or services. The law also prohibits attempts to engage in the aforementioned activities with the intent to defraud another entity.
Like all fraud crimes, the prosecution has to prove several elements beyond a reasonable doubt. These elements include:
- You made, possessed, passed or attempted to make, possess or pass
- A fake, fictitious or altered check
- intending to defraud a person or entity
- By representing the check as valid
A fictitious or fake check is one which:
- Is endorsed by a fictitious person
- Drawn from a fictitious bank
You alter a check if you delete or include information on the check to make it different from the original. Check alterations occur when you change details such as:
- The amount for which the check was written
- The date of the check
- The routing or check number
The prosecution has to prove that you acted with the requisite intent. It can prove this premise by showing that you made or possessed the check with the intent to defraud another party. The intent is verified when you present this check as a genuine one. The prosecution could also use indirect actions to derive the intent to defraud.
Several offenses qualify as check fraud including:
- Forgery: the defendant signs or endorses a check posing as someone else by signing using another person’s signature. This form of check fraud is common among businesses where an employee can sign a check posing as an authorized person. In most forgery cases, the offender steals the identity of another person and uses it to create legal documents that pass him or her as the victim.
- Counterfeiting a check: This involves using the victim’s information to create a fake check. Most of these offenses are conducted using highly advanced equipment similar to those used by banks to create checks. Counterfeiting could also involve duplicating a legitimate check.
- Alteration of checks: here, the offender uses chemicals to dissolve or modify the writing on a check. Offenders may alter parts or the entire check information. Spot alteration is the changing of some of the details on a check. When done fully, the alteration is referred to as check washing.
- Check Kiting: This involves opening different accounts with different banks, then drawing checks on the float. Here, the offender relies on the banks to provide the money from its accounts before the money from the check arrives. This means that the offender collects money from the accounts before the bank can collect the funds from the other account.
- Theft of checks: check theft aims at collecting genuine checks and using them, as they are to defraud the account owner. In some cases, the offenders will use the information on the check to create fraudulent checks and use them. If the account owner does not detect the lost checks, he or she can be liable for any losses incurred when the fraudsters use his or her information.
- Paper hanging: when you write or order a check on a closed account, you are guilty of check fraud by paper hanging.
- Abandonment: where an account owner deposits a check that he or she knows will bounce. He then withdraws the funds and abandons the account leaving it in debt.
- Embezzlement: you are guilty of check fraud by embezzlement if you abuse your position of trust to steal from your employer or a legal check holder. Embezzlement by check fraud is common among employees who have the authority to endorse a check on behalf of the business.
Bad Checks PC 476a
California bad check laws prohibit knowingly drawing a check against an account that you know does not have sufficient balance to cover the amount of the check. The prosecution will have to prove the following elements:
- You willfully write, use or attempt to use a check
- Knowing that you have an insufficient balance to cover the check
- Intending to commit fraud
You are guilty of the offense, even if the victim does not suffer harm. The law will find you guilty if the prosecution can prove the intent to defraud. You could also face additional charges for aiding or abetting the crime of bad checks.
Check fraud is a wobbler offense under PC 476. The court will convict you based on the facts of the offense and your criminal history. Other factors that will determine the type of conviction you get include:
- The amount involved in the offense
- A previous conviction for identity theft
- Whether you have a previous conviction for a sex offense with a mandatory registration as a sex offender or serious and violent felonies
If you do not have a prior conviction for identity theft, a sex crime or a serious felony, and you committed fraud involving less than $950, then the offense is a misdemeanor.
The penalties for a misdemeanor include a maximum of $1000 in fines and a year in county jail.
A felony conviction has penalties such as:
- Probation and a maximum term of one year in county jail or up to three years in county jail
- A fine not exceeding $10,000
The court can charge check fraud as forgery under PC 470d that makes it illegal to:
- Falsify, alter, counterfeit a check
- Try to pass the check as genuine
The penalties for the offense are similar to those of check fraud under PC 476.
For both offenses, the court may require you to pay restitution to all the victims. With the help of your lawyer, you can get probation sentencing instead of spending time in jail.
Check fraud is a white-collar crime but with severe, life-changing penalties. Therefore, you need to defend against these charges using the available legal tools. First, you need to hire a lawyer who understands check fraud and other related laws that the court could use with the offense. Some of the legal defenses your attorney can use include:
Lack of Intent to Defraud
The intent to defraud is one of the major elements of any fraud offense in California. If you did not intend to commit check fraud, then you are not guilty of the offense. Proving intent can be complicated for the prosecution, which gives the defense a chance to challenge this element of the offense.
In some cases, you can use duress as a defense to show that you did not commit the offense willfully; neither could you form the required criminal intent. If another party forced you to alter or make a fake check, then you cannot be guilty of committing check fraud.
Consent from the Authorized Party
If the person authorized to grant the permission over altering the details of a check or signing on their behalf, then you cannot be guilty of committing check fraud. The law prohibits making unauthorized and illegal changes to the check.
The prosecution must prove every element of check fraud beyond a reasonable doubt. The evidence the prosecution presents has to convince the jury that indeed, the defendant committed the offense. However, if the evidence does not meet this standard, then your attorney can challenge it. The court will most likely dismiss a charge where the prosecution cannot present sufficient and objective evidence.
Mistaken identity issues in check fraud cases arise due to false accusations of possessing a check you did not alter. False accusations occur when another party wrongly accuses you of committing an offense.
In some cases, you can be a victim of mistaken identity by having an altered check, which someone else altered. In this case, you have to prove that you are not aware of the alteration, and you did not alter the check.
Your lawyer will have to conduct a thorough investigation to determine the source of the altered or fake check. After identifying the source of the fake check, you will be free from criminal liability. Even if your lawyer presents evidence that proves you did not commit the offense, you will be off the hook.
When mistaken identity arises due to poor identification by witnesses, your lawyer will review the procedure used to present the witnesses. Your lawyer can also interview the witnesses to determine their degree of certainty that you are the offender.
No Knowledge that the Check Was Fake or Altered
In some cases, someone could present a fake or altered check to you as payment for a good or service. If this happens, and you attempt to cash the check, the teller or recipient might assume that you are knowingly cashing a fake check. In such a case, however, you can defend yourself by proving that you did not know of the validity of the check. The court cannot convict you of check fraud if you did not know the check was fake at the time you used it.
You Honestly Believed that your Account had Sufficient Funds
Check fraud charges can arise when you draw money from an account without sufficient balance. However, if you can prove that you believed that the money in the account was enough to cover the check, then you cannot be guilty of the offense.
You are a Victim of Identity Theft
Check theft and identity theft are two closely related offenses that sometimes lead to the conviction of an innocent person. Checks have important identification information printed on them, making it easy for fraudsters to impersonate you.
Identity theft involving checks can happen when someone steals your mail or your information through illegal schemes. A person could also give away your information after you send him or her a check.
Developing the Defense Strategy
Creating a defense strategy against fraud requires preparation and the expertise of a criminal defense lawyer. You have the right to defend yourself from any criminal charges whether or not you committed the offense.
Preparing a defense strategy should start as soon as you are arrested. It includes activities such as remaining silent when the officers arrest you. Being silent saves you from providing information that could be used against you.
The second step is hiring a fraud defense attorney. The hiring stage is a delicate process. Make sure that you hire an attorney who has the relevant experience, has good reviews from previous clients, is affordable, and has excellent customer care services.
Once you hire an attorney, you get into the hands-on part of developing a defense strategy. First, the attorney will explain the charges you are facing. At this point, you should be open with your lawyer and provide him or her with the truth. Your lawyer is not here to fight you. Instead, he or she will work towards achieving the best possible outcome, even if you did commit check fraud. Being truthful also reduces the time the criminal proceedings take.
When building your defense strategy, you might take one of three approaches:
- Deny the charges
- Admit guilt to the charges
- Admit guilt to the charges but with an explanation
When you deny the charges, you are telling the court that you are innocent. Your attorney will work with you to gather proof to show your innocence. For example, if you were falsely accused of committing fraud, your attorney could summon witnesses. He or she will then examine the testimony of these witnesses in determining the accuracy of their statements.
In some cases, you could be facing charges because of identity theft. In this case, you are also a victim of check fraud.
When you admit guilt to the charges, the defense will probably request lesser sentencing. However, it is always advisable to plead not guilty at arraignment to give your lawyer a chance to go through the prosecution’s evidence.
Your attorney will evaluate this evidence to determine the best possible approach that will work for you. Note that, before the defense begins, you must be aware of what you want from the defense. It could be:
- Dismissal of charges
- Reduction of charges
- Reduced sentencing
You should communicate these to your defense attorney. Your attorney will then evaluate the circumstances of the offense, the evidence the prosecution has, and the law. This gives the attorney information to determine the possibility of achieving what you want.
In some cases, your expectations might be unreasonable, especially if the evidence is overwhelming, or you had confessed to the offense.
Your lawyer should advise you about what you can reasonably expect based on the evidence the prosecution has, the facts of the case, and the defense strategy.
The attorney will go through the pretrial phase and can file various motions. These motions can:
- Suppress illegally obtained evidence (PC 1538.5)
- Release evidence the prosecution might be withholding
- Challenge the credibility of the arresting officer (Pitchess Motion)
- Set aside some offenses (PC 995)
- Challenging the credibility and reliability of witnesses
- Dismiss the charges
- Change the venue
The defense and prosecution may get into an agreeable offer, which resolves the case at the pretrial stage. However, if they do not settle, your case will proceed to trial. Your case could also go to trial if, at the pretrial stage, the parties agree on which charges to file and which ones to drop. Your case then proceeds to trial for the predetermined charges.
Your defense lawyer will be in communication with you to inform you about the critical issues in your case. He or she can provide evidence and legal opinions about your case.
Sometimes, the attorney will coach you about the possible strategies the prosecution might use. He will coach you on how to answer questions in court and to conduct yourself.
After the conclusion of your case, you might be acquitted or convicted. If you are convicted for check fraud, your attorney could request for alternative sentencing such as probation or bad check diversion. He or she will then help you in expunging your records.
You can retain your lawyer after a conviction or rehire him or her as the need arises.
If, during the defense process, your attorney does not satisfy you, you can request the court to allow you to change the defense for a public defender. If you hired a private one, you can discharge him or her without the court’s approval.
Your lawyer also has the right to drop your case. This can happen when:
- Breakdown in the client-attorney relationship
- You refuse to follow the advice of the attorney
- You are using the attorney’s services to cover up a fraud or criminal activities
- You break the terms of the agreement such as refusing to pay the attorney
In most cases, the court will require the attorney to seek permission before dropping a case. When granted, the court gives you a reasonable time to find a new defense attorney.
Expunging Your Record
A record of arrest or conviction can affect your employment pursuits and career advancement. In some cases, you might be unable to find decent housing as well since the renting agencies can view your criminal records.
Expunging your records or sealing arrest records makes them unavailable to the public. Therefore, you can safely say that you were never arrested or convicted of an offense. It also protects you from discrimination based on your criminal record. For example, an employer cannot deny you a job because you were convicted.
To expunge your records, you must meet several standards, including:
- Completing probation
- You are not currently facing charges for another offense
- You did not serve time in state prison or could have served time in county jail under Prop 47 realignment
- You are not on probation or serving a sentence for any offense
Filing for expungement requires filling in some paperwork and providing notifications to the relevant parties, including the prosecution. You can submit the petition yourself or hire a lawyer to do the work.
You are eligible for the sealing of arrest records if the prosecution did not file charges for the offense.
Check fraud is related to several criminal offenses in California. The prosecution can charge you with either check fraud or one of these offenses. In some cases, the prosecution will file these charges together.
The prosecution can charge you with petty theft and check fraud if you use a fraudulent check to obtain money or goods not exceeding $950. Petty theft is a misdemeanor punishable by up to six months in county jail and a $1000 fine.
When you use a fraudulent check to obtain money or goods worth $950 or more, you are guilty of grand theft. The prosecution could charge you with both check fraud and grand theft if you violated the respective laws.
Grand theft is charged as a wobbler. However, if you use a check to obtain goods or money worth $65,000 or more, then you will be charged with a felony.
Find a Orange County Criminal Lawyer Near Me
Getting charged with check fraud can be upsetting. However, you need to gather yourself and fight these charges to get the best possible result. You will need the help of an Orange County Criminal Lawyer who has the legal experience and expertise in California fraud laws. Check fraud tends to borrow from other statutes you might not know of or understand. However, with an attorney, he or she can explore the potential laws, charges, and enhancements the prosecution can bring against you. He or she will then develop a defense strategy based on your case. Contact us at 714-262-4833 for a free consultation.