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Worthless Check Complaint

Procedures for Filing a Worthless Checks Complaint

TO: All Merchants
FROM: City Attorney's Office
SUBJECT: Prosecution of Worthless Checks

The City, through the City Attorney's Office, pursues a policy of vigorous enforcement of the City's ordinance against issuing worthless checks. The City Commission has declared it unlawful to issue a check in exchange for any thing of value if at the time of issuing the issuer knows he or she has insufficient funds to cover the amount of the check and the issuer intends to defraud the payee. Since it is a criminal offense, the City must prove all the elements of the offense beyond a reasonable doubt. If the City does not prove all the elements beyond a reasonable doubt, the issuer will be found not guilty of the crime.

The hardest element to prove is the issuer's intent at the time of making the check. Most defendants will deny intent to defraud the merchant. However, the ordinance provides a presumption of intent to defraud if the issuer does not take care of the worthless check within three (3) business days of receiving a letter informing of the worthless check and the time limits to redeem the check. The letter must be sent certified, return receipt requested to the address on the check and must be marked PLEASE RETURN TO SENDER IN SEVEN (7) DAYS to suffice as notice as required by the ordinance. The City will need the proof of service (green card) showing receipt of the letter, along with a copy of the letter sent giving notice, or the returned letter showing an attempt to deliver by the post office before it can pursue prosecution of the worthless check or checks.

Merely creating a presumption that the issuer knew there were sufficient funds often is not enough to get a conviction. A presumption can be rebutted by testimony of the issuer. Thus, the City goes beyond the presumption by presenting testimony of a record keeper from the issuer's bank to show the balance in the account on the date the check was issued. This requires that someone who works at the bank appear in person to testify. However, the municipal court only has subpoena power within Otero County, thus, the City can not prosecute worthless checks drawn on a bank outside Otero County because no bank official can be subpoenaed to testify.

Although this office considers restitution an important part of the offenders' sentence, we are not a collection agency for worthless checks. We are not required to nor will we accept every check returned to a merchant. The City will accept only those checks which are within the definitions of the worthless check ordinance. If the City declines to accept a check or dismiss a complaint, the merchant may seek civil remedies. The standards of proof for a criminal prosecution and a civil suit are different. That is, some worthless check cases that resulted in an acquittal may be successfully pursued in a civil suit.

The mere charge of a crime in our society is a very serious matter. It is more serious than being threatened with a civil suit. Therefore, the City will not accept worthless checks for prosecution unless it is convinced that it can prove all the elements necessary in court. Although most cases are resolved by an issuer pleading guilty without going to trial, we must assume every issuer will exercise their constitutional right to trial and be prepared to prove a crime has been committed in every case. It would be both unethical and illegal to charge a person with the crime of issuing a worthless check hoping that they plead guilty, if we knew that we could not prove guilt at trial.

Therefore, before the City will prosecute for worthless checks marked "Account Closed" or "Insufficient Funds," the merchant must bring in the following items:

1. The returned check (only worthless checks returned because of insufficient funds or a closed account) written on a bank in Otero County for less than $25.00.

2. A copy of the letter sent to the issuer informing of the returned check and of the three days in which the issuer has to make restitution.

3. The proof of service (green card) showing the receipt of the letter, or the returned envelope. The returned envelope must be marked PLEASE RETURN TO SENDER IN SEVEN (7) DAYS; any lesser period of time will not be considered sufficient notice by this office.

4. The Criminal Complaint form with all the pertinent information for prosecution signed by the complainant.

Further, the merchant must be prepared to testify at trial as to the identity of the defendant, if necessary, and otherwise cooperate with the City Attorney's Office. In order to prove that the issuer received goods or services at the time the check was issued, this office is asking all merchants to have the employee who receives the check(s) initial or have a code so if the issuer is summoned to go to court, the clerk representing the vendor or merchant, along with the City, can prove all the elements beyond a reasonable doubt when that employee appears in court. The City will not take worthless checks that were issued to pay a pre-existing debt, post-dated checks, or worthless checks drawn on banks outside Otero County. Because of the possibility of bank error, the City requires that vendors deposit each check a second time. If the check is rejected again, then the City will accept it for prosecution.

By following these instructions, the merchant will greatly assist the City Attorney's Office in its efforts to prosecute worthless check offenders under the City ordinance. If you have any questions concerning these procedures, please feel free to come by the City Attorney's Office or call 439-4210.