Virginia Check Fraud: the Prosecution, the Defense, and the Potential Penalties

Issuing or writing "bad" checks—checks with insufficient funds—can be a misdemeanor or felony offense in the Commonwealth of Virginia, depending on the level of alleged fraud. Offenses involving less than $200 in fraud are misdemeanors while those offenses involving $200 or more of fraud are felonies.

Issuing or writing bad checks can be charged a number of ways in Virginia, including the following:

  • Issuing bad checks, acts of larceny: Va. Code 18.2-181
  • Issuance of bad checks: Va. Code 18.2-181.1
  • Issuing bad checks on behalf of business firm or corporation in payment of wages: Va. Code 18.2-182
  • Issuing bad checks in payment of taxes: Va. Code 18.2-182.1

Given the seriousness of these crimes, anyone charged with issuing a bad check needs to consult with a lawyer that has previously handled such cases.

What the Prosecutor Must Prove for Bad Check Conviction

The basic code section used to prosecute bad check cases is Va. Code 18.2-181. This code section provides that any person with intent to defraud, makes, draws, utters, or delivers any check, knowing at the time that there are not sufficient funds in the account for the payment of the check, is guilty of larceny. In cases where the face value of the check is less than $200, the accused will be charged with a Class 1 misdemeanor.

If the check has a face value of $200 or more, the accused will be charged with a Class 6 felony. Va. Code 18.2-181.1 is a statute that increases the penalty for repeat misdemeanor offenders. This code section provides that it's a Class 6 felony for any person, within a period of 90 days, to issue two or more checks, which have an aggregate represented value of $200 or more.

Defending Bad Check Cases

Bad check cases are very difficult to prove if there's a proper defense. The prosecution must prove the person who wrote the check knew at the time the check was written or delivered that there were insufficient funds in the account. Absent statements by the accused or incontrovertible evidence—such as proof that the account was closed by the accused prior to the time when the check was written—make it challenging for the prosecution to establish this element beyond a reasonable doubt.

To this end, Va. Code 18.2-183 provides that in any prosecution of a bad check case, the making, uttering, or delivery of a check which is refused because of lack of funds shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds—unless the person who wrote the check pays the holder the amount due, with interest, within five days after receiving written notice that the check has not been paid.

However, this section also provides that in order for this notice to be effective it must be mailed by certified or registered mail, evidenced by return receipt, to the last known address of the person who wrote the check. It's important to note that even if this section is complied with, it's simply prima facie evidence that can be rebutted by evidence from the defendant.

Given the technical nature of such a defense, it's critical that anyone charged with issuing a bad check have competent and experienced defense counsel who has previously handled bad check cases.

The Potential Penalties for Writing a Bad Check in Virginia

As noted above, issuing a bad check can be punished as a Class 1 misdemeanor or as a Class 6 felony, depending on the face value of the check. If charged as a misdemeanor, the maximum penalty is 12 months in jail and a $2,500 fine. If charged as a felony, the maximum penalty is five years in jail and a $2,500 fine. Since the threshold between misdemeanor and felony can mean a four-year difference in the maximum prison term, it's critical that any defense attorney fully explore all defenses.

We are often asked, “What is the average jail time a person receives for a conviction of writing a bad check?” The answer depends on a number of factors including the value of the check, the evidence presented by the prosecution, and the quality of the defense.

If you've been arrested for check fraud in Fairfax County, Prince William County, Arlington County, Loudoun County, Alexandria, or elsewhere in Northern Virginia, contact Manikas Law, LLC by phone or email to schedule a consultation appointment.