TO: All Merchants
FROM: Union County State’s Attorney’s Office
RE: Forgery, No-account Checks and Insufficient Funds Checks
DATE: July 14, 2010
Please be advised that this office has adopted the following policies in the prosecution of forged, no-account and insufficient funds checks:
1. This office will not prosecute a check if the merchant does not verify on the check the identity of the maker along with a date of birth and driver’s license number of the maker. A check will be returned without prosecution if the following information is not on the check and legible.
a. The maker (writer) identified by proper identification (such as a driver’s license).
b. The maker’s date of birth.
c. The clerk’s initials must appear on the check.
i. The clerk must be able to be identified. This office may have to subpoena the clerk as a witness. If the merchant is unable to identify the clerk that took the check then the State may be forced to dismiss the charges.
ii. Merchants are required to keep detailed records of the employees so that the clerk who accepted the check can be identified. Merchants should adopt the practice of requiring the clerk who accepts a forged, or no-account, or insufficient funds check to write a detailed account of what they can remember about the person and circumstances surrounding the taking of the check. (This is how law enforcement officers recall persons and events long after the events have passed.) The report should be forwarded to the State’s Attorney’s Office with the request for prosecution.
iii. Merchants should remember that a check case is only as provable as the evidence that can be presented in a court of law. If the Merchant uses video equipment, the manager and the clerk should review the video and secure a copy for the prosecutor.
2. The following policies have generally been adopted for different types of offenses:
a. If the maker (writer) of the check is the owner of the checking account charges of insufficient funds and/or no account may be filed.
b. If the maker (writer) of the check is not the owner of the account then charges of forgery may be filed. The merchant should notify their local law enforcement agency to begin an investigation into this felony activity. The clerk should be asked to write a report of the incident, and any video footage of the incident should be preserved for law enforcement and prosecution.
3. This office reserves the right to not prosecute a check where either the financial institution or the maker resides outside of a 200-mile radius of Elk Point, South Dakota.
a. I have found that other prosecuting attorneys from other states are not anxious to assist in obtaining the bank records in check cases.
b. While other counties, such as Minnehaha, will not prosecute a check drawn on a financial institution based outside of the State of South Dakota, I am not going to adopt such policy at this time since Union County borders two other states. Be advised, however, that you take a risk in accepting checks drawn on out-of-state financial institutions.
c. This office recommends that merchants adopt a policy of not accepting out-of-state checks; installing camera systems that clearly identify the check writer; and the utilization of requiring a thumb print on all checks.
4. A check must be presented for payment and returned by the financial institution with the reason for dishonor indicated upon the instrument. SDCL § 22-30A-30
5. A Notice of Dishonor is necessary for all no account and insufficient fund checks. A notice of dishonor has specific requirements. All merchants should be familiar with and insure that the Notice of Dishonor complies with SDCL § 22-30A-32. (See below for statutory recommendation of an acceptable Notice of Dishonor format.)
6. A check that is paid within thirty days after the notice of dishonor, which is required to be mailed (pursuant to SDCL § 22-30A-35), may not be prosecuted.
7. No criminal prosecution shall be commenced after six month after the holder of the check receives notice of its dishonor. SDCL § 22-30A-36
8. All merchants should be familiar with statutes that are referenced within this policy and must understand that this policy is based upon the limitations of criminal justice system and requirements of the cited statutes. Merchants should also understand that statute may change from time to time and that the statutes may dictate the policy where there is conflict between this policy and the statue. (All of these statutes can be found at http://legis.state.sd.us/statutes/index.aspx ).
See: 22-30A-32. Notice of dishonor required before prosecution for theft by insufficient funds–Check or theft by no account check–Presumption of service–Waiting period. (Spaces have been added to this statute to allow for clarity in reading.)
The holder of an insufficient funds check or no account check shall, before presenting the check to the state’s attorney for prosecution, serve a notice of dishonor upon the writer of the check,
by registered or certified mail, return receipt requested, or
by first class mail, supported by an affidavit of mailing sworn and retained by the sender, in the United States mail and addressed to the recipient’s most recent address known to the sender.
If the notice is mailed, and not returned as undeliverable by the United States Postal Service, notice is conclusively presumed to have been given on the date of mailing.
The holder of the dishonored check, whether it be a no account check or insufficient funds check, shall, upon return of the receipt, hold the check for a period of at least thirty days if notice is given by first class mail, and upon the expiration of that period shall present the check with the attached bank return, return receipt or affidavit of mailing, and copy of the dishonor notice to the state’s attorney for prosecution.
22-30A-34. Contents of notice of dishonor.
The notice of dishonor required by § 22-41-3.1 shall be in substantially the following form:
Name of issuer ____________________________________________________
Bank on which drawn _______________________________________________
Date of check _____________________________________________________
Amount of check ___________________________________________________
Holder of the check _________________________________________________
You are hereby notified that your check described above has been dishonored and is now being held by the above holder for a period of thirty days from the date of the mailing of this notice. Civil liability incurred by a check issuer pursuant to SDCL 57A-3-420 is not a defense to a violation of this chapter. If you do not pay the amount of the check and the costs and expenses provided for by SDCL 57A-3-421 within thirty days of the mailing of this notice of dishonor to you, your check will be delivered to the state’s attorney for criminal prosecution for theft, and you will be liable to the holder of the check for an additional civil penalty of an amount equal to twice the amount of the check in addition to the amount of the check and the costs and expenses provided for by SDCL 57A-3-421.
JERRY A. MILLER
Union County State’s Attorney
209 E. Main St., Suite 140
Elk Point, SD 57025