H. B. 2398
(By Delegates Williams, Stemple,
Shaver, Cann and Varner)
[Introduced January 17, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirty-nine-g, article three,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to notifying
persons from out-of-state who issue worthless checks in this
state and who, after being sent a summons upon a misdemeanor
complaint, fail to pay the check and applicable fine or fail
to appear in court, that a notice of their failure will be
sent to the division of motor vehicles to be dealt with
according to existing law.
Be it enacted by the Legislature of West Virginia:
That section thirty-nine-g, article three, chapter sixty-one
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39g. Complaint; notice of complaint; issuance of warrant; payment procedures; costs.
(a) After receipt of a complaint for warrant for a violation
of section thirty-nine or thirty-nine-a of this article the
magistrate court shall proceed with the issuance of the warrant as
is provided by law: Provided, That no warrant may issue for an
offense under section thirty-nine or thirty-nine-a of this article
which, upon conviction, would be punishable as a misdemeanor,
unless the payee or holder of the check, draft or order which has
been dishonored has sent notice thereof to the drawer of the check,
draft or order in accordance with the provisions of section
thirty-nine-e of this article, or unless notice has been sent by
the magistrate as hereinafter provided. Proof that the notice was
sent by the payee or holder may be evidenced by presentation of a
return receipt indicating that the notice was mailed to the drawer
by certified mail, or, in the event the mailed notice was not
received or was refused by the drawer, by presentation of the
mailed notice itself. The magistrate court shall receive and hold
the check, draft or order.
(b) Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or holder,
the magistrate court shall immediately prepare and mail to the
drawer of the check, draft or order a notice in form substantially
as follows: The magistrate court shall impose any service charge
reflected in the complaint as having been imposed on the payee or holder by the payee's or holder's bank or financial institution in
connection with the check, draft or order and additional court
costs in the amount of ten dollars. This notice shall be mailed to
the drawer by United States mail, first class and postpaid, at the
address provided at the time of presenting the check, draft or
order. Service of this notice is complete upon mailing. The
notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following effect
and purpose by .............. who upon oath complains that on the
....... day of ..............., 19 20...., you did unlawfully issue
and deliver unto him or her a certain check, draft or order in the
amount of ......................... drawn on
.................................................... (name of bank
or financial institution) ................. where you did not have
funds on deposit in or credit with the bank or financial
institution with which to pay the check, draft or order upon
presentation and pray that a warrant issue and that you be
apprehended wherever you may be found by an officer authorized to
make an arrest and dealt with in accordance with the laws of the
state of West Virginia.
"A warrant for arrest will be issued on or after the .........
day of ......................., 19 20......
"You can nullify the effect of this complaint and avoid arrest by paying to the magistrate court clerk at ......................
the amount due on the check, draft or order; service charges
imposed on the payee or holder by the payee's or holder's bank or
financial institution in connection with the check, draft or order
in the amount of ..........; and the costs of this proceeding in
the amount of ten dollars on or before the .......... day of
...................., 19 20......, at which time you will be given
a receipt with which you can obtain the check, draft or order from
the magistrate court. The complainant is forbidden by law to
accept payment after the complaint is filed.
Magistrate Court of .................. County
.............................................
Date: .............................."
This notice shall give the drawer of any such check, draft or
order ten days within which to make payment to magistrate court.
In the event the drawer pays the total amount set forth in the
notice to the magistrate court within the ten-day period, no
warrant may issue. The payment may be made to the magistrate court
in person or by mail by cash, certified check, bank draft or money
order and, in the event the payment is made by mail, the magistrate
court clerk shall immediately mail to the maker of the check, draft
or order the receipt required by this section. In the event the
total amount is not so paid the court shall proceed with the
issuance of the warrant as is provided by law.
(c) Upon receipt of payment of the total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing the check, draft or order with which receipt the drawer
is entitled to receive the dishonored check, draft or order from
the magistrate court holding it. The magistrate court clerk shall
forward the amount of the check, draft or order, together with any
service charge reflected on the complaint as having been imposed on
the payee or holder by the payee's or holder's bank or financial
institution in connection with the check, draft or order, to the
payee or holder thereof, along with a description of the check,
draft or order sufficient to enable the person filing the complaint
to identify it and the transaction involved. Costs collected shall
be dealt with as is provided by law for other criminal proceedings.
(d) The drawer of a check, draft or order against whom a
warrant has been issued may at any time prior to trial pay to the
court the amount of the check, draft or order; any service charge
reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution in
connection with the check, draft or order; and the court costs
which would be assessed if the person were found guilty of the
offense charged. These costs shall be imposed in accordance with
the provisions of section two, article three, chapter fifty of this
code.
(e) When a misdemeanor complaint issues against a person residing out-of-state accused of issuing a worthless check, draft
or warrant, a summons shall issue. The summons and complaint
shall be mailed first-class mail to the last-known address of the
person residing out-of-state. The summons shall apprise the person
of a time and date certain for him or her to appear before a
magistrate in the county where the complaint issued, or
alternatively, that he or she may, in lieu of the required
appearance, make payment of the check and the applicable fine and
applicable fees by check or money order. The summons shall also
apprise the person that if he or she fails to appear or make
payment, as required, notice of the failure will be forwarded to
the West Virginia division of motor vehicles in accordance with the
provisions of subsection (d), section two-a, article three, chapter
fifty of this code.
NOTE: The purpose of this bill is to notify persons residing
out-of-state who write worthless checks in this state and who after
being served with a summons upon a worthless check complaint fail
to pay the check and applicable fine or fail to make an appearance
in magistrate court, that a notice of their failure will be
forwarded to the division of motor vehicles to be dealt with in
accordance with existing law.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.