H. B. 4261
(By Delegates Williams, Hartman,
Butcher, Michael and Ireland)
[Introduced February 1, 2010; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §61-3-39a, §61-3-39g and §61-3-39m of
the Code of West Virginia, 1931, as amended, all relating to
writing worthless checks; altering the criminal penalty;
providing a procedure for issuing a summons when the drawer is
an out-of-state resident; and allowing the prosecuting
attorney to drop charges under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §61-3-39a, §61-3-39g and §61-3-39m of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39a. Making, issuing, etc, worthless checks on a
preexisting debt; penalty.
(a) It 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 on a preexisting debt upon
any bank or other depository, knowing or having reason to know
there is not sufficient funds on deposit in or credit with the bank
or other depository with which to pay the check, draft or order
upon presentation. The making, drawing, issuing, uttering or
delivering of any check, draft or order on a preexisting debt, for
or on behalf of any corporation, or its name, by any officer or
agent of the corporation, shall subject the officer or agent to the
penalty of this section to the same extent as though the check,
draft or order was his or her own personal act.
(b) This section
shall does not apply to any 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
does this section apply to any postdated check, draft or order.
This section
shall does not apply when 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 the
check, draft or order would be dishonored.
(c) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $200;
and upon a third or subsequent conviction
thereof, shall be fined not more than two hundred dollars, or
confined in the county or regional jail not more than ten days, or
both be sentenced to between one and ten days in jail, with at
least twenty-four hours of the sentence being actual incarceration
in jail; be sentenced to fourteen days of community service; or a
combination of these punishments.
§61-3-39g. Complaint; notice of complaint; issuance of warrant
or
summons; payment procedures; costs.
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.
Upon receipt of a complaint for a misdemeanor warrant
or
summons 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 $25. 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.
Where the drawer is an in-state resident, 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 .............., 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 ..................., 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 $25 on or before the ........ day of ...............,
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: .............................."
Where the drawer is an out-of-state resident the notice shall
be in form substantially as follows:
"You are hereby notified that a summons 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
..............., 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 summons 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 summons for arrest will be issued on or after the .........
day of ..................., 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 $25 on or before the ........ day of ..............,
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,
for in-state
residents, proceed with the issuance of the warrant,
or for
out-of-state residents proceed with the issuance of a summons, as
is provided by law.
If the drawer of the check, draft or order fails to respond or
appear to summons or warrant issued by the court within sixty days,
the clerk of the magistrate court shall forward the drawer's name
and address, as presented in the check, draft or warrant, to the
Commissioner of the Division of Motor Vehicles. The commissioner
shall suspend the drawers driving privilege in West Virginia. The
suspension shall remain in effect until the drawer appears and
satisfies the court assessed penalties and restitution.
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.
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.
§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.
(f) The prosecuting attorney, after full and complete payment
of all restitution amounts due by a drawer of multiple worthless
checks may dismiss all but one charge against the drawer and allow
him or her to plead to a single charge of issuing a worthless
check, draft or warrant. In that case, the drawer is subject to
court costs and fees in that case only. The drawer shall also be
sentenced to ten days in jail. That sentence shall be suspended
and the drawer shall be placed upon twelve months of unsupervised
probation with the condition that he or she make full payment of
all costs and fees within a specified time and that he or she write
no additional worthless checks.
NOTE: The purpose of this bill is to provide improvements to
the statutory provisions relating to the writing of worthless
checks. The bill would alter the criminal penalty for writing a
worthless check; provide a procedure for issuing a summons when the
drawer is an out-of-state resident; and allow the prosecuting
attorney to drop some charges when restitution has been made.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.