1. Purpose of the program The Bennett County State’s Attorney’s Check Program is designed to prosecute people who fail to make good on dishonored checks that they write. We see this program as a cooperative effort between the State’s Attorney’s Office and local businesses to combat the problem of bad checks being passed in Bennett County. This service is provided to you at no cost.
2. What a business needs to do when taking a check.
Each business needs to implement a sound policy for accepting checks as payment for goods and services.
A. Require identification - Ask for a driver’s license or other photo id.
B. Insist that the check writer completely fill out the check and sign the check in your presence C. Record information on the check - The State’s Attorney must have the check writer’s driver’s license and date of birth in order to criminally pursue a bad check writer. (hint: all driver’s licenses have the date of birth on it).
D. Initial the check - Always have the person who is accepting the check initial the check in the upper left corner. In the event a criminal charge is issued the State’s Attorney will need to know who actually accepted the check.
E. Don’t be in a hurry - Bad check writers prefer to work during your busiest hours.
F. Compare the information - The information on the check (name, address, etc.) should match that of the driver’s license. Also compare the photo with the person writing the check.
3. Procedure for prosecution insufficient funds and no account checks.
A. State’s Attorney only has six (6) months to start prosecution (SDCL 22-30A36).
Once a bad check is returned to the business, the State’s Attorney only has six (6) months to start the prosecution. It is critical that each business that gets a bad check must start action to collect on the check immediately.
B. A bad check has been returned as insufficient funds or no account, what do I do?
Step 1. The business must set a Notice of Dishonor to the writer of the check. See attached form Notice of Dishonor (SDCL 22-30A-34). Keep a copy of the Notice of Dishonor. The notice must be sent by registered or certified mail, return receipt requested, or by first class mail support by an affidavit of mailing. See attached Affidavit of Mailing. (SDCL 22-30A-32). If you send the notice by registered or certified mail, keep the return receipt.
Step 2. The business must hold the check for thirty days after the notice is sent. During this time the writer of the check has the opportunity to pay the business in full for the amount of the check and any service charges.
Step 3. If the writer of the check fails to pay within 30 days then the State’s Attorney can prosecute. The business needs to bring the bank return, proof of mailing the Notice of Dishonor (return receipt or affidavit of mailing) and a copy of the Notice of Dishonor to the State’s Attorney. (SDCL 22-30A-32). Keep the return receipt or fill out the Affidavit of Mailing on the same day of mailing.
Step 4. The State’s Attorney will send the check writer a letter requesting payment within fifteen (15) days. The letter will tell the check writer to make payment through the State’s Attorney’s Office and that criminal charges will be filed if the payment is not received by the end of the fifteen (15) days.
Step 5. If full payment is not received within fifteen (15) days, then the State’s Attorney will file criminal charges against the writer of the check. A warrant will be issued for the person’s arrest.
Step 6. If payment is not received then it will be necessary for your employee who received the check to appear at a preliminary hearing and at trial if necessary. We cannot win a check case without the testimony of the person who accepted the check.
The first goal of the prosecution is to get restitution to the business for the bad check. Depending on the severity of the theft, the punishment can range from the charges being dropped when restitution is made to the business all the way to imprisonment in the South Dakota State Penitentiary.
4. Things not to do.
A. Do not take a postdated or hold check. The State’s Attorney cannot prosecute these types of checks. (SDCL 22-30A-29).
B. Do not take a two-party check, a starter check or a temporary check.
C. DO NOT ACCEPT PAYMENT AFTER YOU HAVE TURNED THE CHECK OVER TO THE STATE’S ATTORNEY’S OFFICE. Refer the check writer to the State’s Attorney for resolution.
D. Do not take a partial payment for the check. If a partial payment is accepted on the bad check, then the State’s Attorney cannot prosecute.
E. Do not wait to start the process. The State’s Attorney only has six (6) months after the check is returned to start the prosecution. (SDCL 22-30A-36). As a rule, the difficulty and time required for collection/prosecution tends to increase with the age of the check.
5. Overview of theft statutes and authorized punishments.
A. Theft by insufficient funds check (SDCL 22-30A24).
No person, with the intent to defraud and for a present consideration, pass a check drawn on a financial institution knowing at the time of such passing that there is not sufficient funds in the account on which the check was drawn. The law presumes that passing a check is evidence that the person who wrote the check had knowledge of insufficient funds in the account. (SDCL 22-30A-27).
B. Theft by no account check. (SDCL 22-30A-25).
No person, with the intent to defraud and for a present consideration, pass a check drawn on a financial institution knowing at the time of such passing that the check passer had no account at the financial institution.
C. Present consideration (22-30A-28).
Theft by insufficient funds and by no account, both require that the check be written for present consideration. Present consideration just means that in return for the check, the person who wrote the check gets something. Present consideration includes goods, services, and payment of taxes, child support or alimony.
D. Punishment (22-30A-17, -17.1, -17.2, -17.3).
The type of punishment depends on the amount of the bad checks. In determining the amount stolen all checks written with any thirty (30) day period can be added together.
If the amount stolen exceeds one hundred thousand dollars ($100,000), the defendant will be charged with a Class 3 Felony. This is punishable by fifteen (15) years in the state penitentiary and/or a fine of thirty thousand dollars ($30,000).
If the amount stolen exceeds five thousand dollars ($5,000) but is less than or equal to one hundred thousand dollars ($100,000), the defendant will be charged with a Class 4 Felony. This is punishable by ten (10) years in the state penitentiary and/or a fine of thirty thousand dollars ($20,000).
If the amount stolen exceeds two thousand five hundred dollars ($2,500) but is less than or equal to five thousand dollars ($5,000), the defendant will be charged with a Class 5 Felony. This is punishable by five (5) years in the state penitentiary and/or a fine of thirty thousand dollars ($10,000).
If the amount stolen exceeds one thousand dollars ($1,000) but is less than or equal to two thousand five hundred dollars ($2,500), the defendant will be charged with a Class 6 Felony. This is punishable by two (2) years in the state penitentiary and/or a fine of thirty thousand dollars ($4,000).
If the amount stolen is more than four hundred dollars ($400) but less than or equal to one thousand dollars ($1,000), the defendant will be charged with a Class 1 Misdemeanor. This is punishable by one (1) year in the county jail and/or a fine of two thousand dollars ($2,000).
If the amount stolen is four hundred dollars ($400) or less, the defendant will be charged with a Class 2 Misdemeanor. This is punishable by thirty (30) days in the county jail and/or a fine of five hundred dollars ($500).
6. “Stop payment” or “Forgery.”
If a check is returned for the reason of “Stop payment” or “Forgery” you will need to refer the matter to the Martin Police Department or the Bennett County Sheriff. They will conduct an investigation and if necessary will submit a report to the State’s Attorney’s Office.
7. Service charge on dishonored checks.
A business is allowed to collect reasonable costs and expenses when a check is returned for “no account” or “insufficient funds.” In order to collect these costs and expenses the business must post a conspicuous notice on its premises stating that a fee will be assessed against returned checks, and any person who issues a check that is dishonored will be liable for all reasonable costs and expenses of collection. (SDCL 57A-3-421). Costs and expenses are reasonable if they do not exceed forty dollars ($40.00) plus any applicable sales tax.
8. Alternatives to criminal prosecution.
Even if a criminal prosecution is not possible (ie, waited past the six (6) months limitation), a business still has the ability to collect on the bad check in civil court. The business can mail a Notice of Dishonor to the check writer. If the check writer does not pay within 30 days, then the business can sue the check writer in civil court. The civil case allows the business to recover a “civil penalty equal to twice the amount of the check.” (SDCL 22-30A-33). The State’s Attorney is not allowed to collect the civil penalty. (SDCL 22-30A-33).
Disclaimer: This is an overview of the procedure for collecting on bad checks and the procedure used by the Bennett County State’s Attorney in prosecuting people who write bad checks. You should consult a private attorney for how to deal with specific checks or to answer specific questions.