COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 85
(By Senators Hunter, Ball, Dawson, Dittmar, McCabe, McKenzie,
Mitchell, Redd and Snyder)
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[Originating in the Committee on the Judiciary;
reported March 2, 2000.]
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A BILL to amend and reenact section thirty-nine-a, article three,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to further amend said
article by adding thereto five new sections, designated
sections thirty-nine-m, thirty-nine-n, thirty-nine-o, thirty-
nine-p and thirty-nine-q, all relating to worthless checks;
increasing fines for making a worthless check; creating a
worthless check restitution program in the office of the
prosecuting attorney; allowing the prosecuting attorney to
adopt standards; requiring notice to persons accepted into
program; allowing the prosecuting attorney to agree to suspend
prosecution for person in program; allowing fees for participation in the program and for educational classes; and
making statements by participants in the program inadmissible
in civil or criminal proceedings.
Be it enacted by the Legislature of West Virginia:
That section thirty-nine-a, article three, chapter sixty-one
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that said article be
further amended by adding thereto five new sections, designated
sections thirty-nine-m, thirty-nine-n, thirty-nine-o, thirty-nine-p
and thirty-nine-q, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39a. Making, issuing, etc., worthless checks; penalty.
(a) It shall be is unlawful for any person, firm or
corporation to make, draw, issue, utter or deliver any check, draft
or order for the payment of money or its equivalent upon any bank
or other depository, knowing or having reason to know there is not
sufficient funds on deposit in or credit with such the bank or
other depository with which to pay the same check, draft or order
upon presentation. The making, drawing, issuing, uttering or
delivering of any such check, draft or order, for or on behalf of
any corporation, or its name, by any officer or agent of such the
corporation, shall subject such the officer or agent to the penalty of this section to the same extent as though such the check, draft
or order was his or her own personal act.
(b) This section shall not apply to any such check, draft or
order when the payee or holder knows or has been expressly notified
prior to the acceptance of same or has reason to believe that the
drawer did not have on deposit or to his or her credit with the
drawee sufficient funds to insure payment as aforesaid, nor shall
this section apply to any postdated check, draft or order. This
section shall not apply when such the insufficiency of funds or
credit is caused by any adjustment to the drawer's account by the
bank or other depository without notice to the drawer or is caused
by the dishonoring of any check, draft or order deposited in the
account unless there is knowledge or reason to believe that such
the check, draft or order would be so dishonored.
(c) Any person who shall violate violating the provisions of
this section shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one two hundred
dollars; and upon a third or subsequent conviction thereof, shall
be fined not more than one two hundred dollars, or confined in the
county or regional jail not more than ten days, or both.
§61-3-39m. Creation and operation of a program for worthless check
offenders; acceptance of person in program.
(a) A prosecuting attorney may create within his or her office
a worthless check restitution program for persons who have violated
sections thirty-nine or thirty-nine-a of this article. This
program may be conducted by the prosecuting attorney in conjunction
with a law-enforcement agency or by a private entity under contract
with the prosecuting attorney.
(b) The prosecuting attorney may adopt standards to determine
the appropriateness of an individual case for the program. In
developing these standards, the prosecuting attorney should
consider the following factors:
(1) The amount of the check, draft or order made, drawn,
issued, uttered or delivered;
(2) The person's criminal record;
(3) The number of times the person has participated in the
program; and
(4) The number of warrants or cases pending against the person
for violations of sections thirty-nine or thirty-nine-a of this
article.
(c) Except as provided in section thirty-nine-o of this
article, nothing in this section shall preclude the prosecuting
attorney from prosecuting violations of sections thirty-nine or
thirty-nine-a of this article.
(d) Nothing in this section may be construed or interpreted to
mandate funding for any worthless check restitution program created
in a prosecuting attorney's office or to require any appropriation
by the Legislature.
(e) Notwithstanding any other provision of law to the
contrary, no case is appropriate for referral to the program unless
notice has been provided pursuant to section thirty-nine-e or
thirty-nine-g of this article.
§61-3-39n.
Notice to persons accepted to the worthless check
restitution program.
(a) Upon approval of an individual case for referral to the
worthless check restitution program, a representative of the
program shall send a notice by registered or certified mail to the
person named in the complaint or warrant.
(b) This notice must contain:
(1) The date and amount of the check, draft or order;
(2) The name of the payee or holder;
(3) The date by which the individual must contact the
designated representative of the worthless check restitution
program;
(4) A demand for full restitution of the face amount of the
check, draft or order and any fees reflected in the complaint or warrant as having been imposed on the payee or holder by the
payee's or holder's bank or financial institution; and
(5) A statement that failure to pay restitution and fees may
result in criminal prosecution.
§61-3-39o. Agreement to suspend prosecution of a person accepted
into the restitution program.
(a) The prosecuting attorney may enter into an agreement with
a participant of the worthless check restitution program to suspend
prosecution for a period to be determined by the prosecuting
attorney.
(b) To remain eligible for the worthless check restitution
program, the participant shall:
(1) Contact a representative of the program before the date
required by the notice sent pursuant to section thirty-nine-n of
this article;
(2) Agree to comply with all the program terms;
(3) Complete a class conducted by the prosecuting attorney,
his or her designee, or a private entity under contract with the
prosecuting attorney, which offers offender education and
instruction;
(4) Pay the fee required to participate in the class, unless
those fees are waived; and
(5) Pay full victim restitution.
(c) The prosecuting attorney shall agree not to file criminal
charges if the participant in the program completes the conditions
of the agreement.
§61-3-39p. Fees for participation in the worthless check
restitution program.
(a) The prosecuting attorney, his or her designee, or a
private entity under contract with the prosecuting attorney may
collect a fee not to exceed one hundred dollars from any person
participating in the worthless check restitution program:
Provided, That the prosecuting attorney shall waive the fee for if
he or she determines that the person is indigent and unable to pay
the fee.
(b) All fees collected pursuant to subsection (a) of this
section shall be deposited in the worthless check restitution
program fund, which fund shall be an interest-bearing account
administered by the prosecuting attorney. The fund shall be used
to pay for the administration of the program or to assist victims
of worthless check crimes. Any money remaining in the fund after
the payment of all program costs at the end of each fiscal year may
be expended for other operating needs of the prosecuting attorney's
office, as the prosecuting attorney deems appropriate.
§ 61-3-39q. Statements by individuals referred to or participating
in the worthless check restitution program.
Any statement made by a person referred to the worthless check
restitution program in connection with the determination of his or
her eligibility for participation in the program and any statement
made or information given by that person while participating in the
program is inadmissible in any civil or criminal action or
proceeding.
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(NOTE: The purpose of this bill is to define a worthless check
restitution program within the prosecuting attorney's office.
§61-3-39m,n,o,p,and q are new; therefore, strike-throughs and
underscoring have been omitted.)