Rarely should it be necessary to prosecute a bad check writer. With proper safeguards instituted by merchants, there is little need for intervention on the part of law enforcement or the County Attorney. By following simple procedures, a merchant can significantly reduce the amount of money lost through bad checks. The materials that follow include suggested policies to be implemented by merchants, as well as the procedure to initiate criminal prosecution
PREVENTING LOSSES DUE TO BAD CHECKS
Setting a firm check policy to be followed by all employees is the best way to prevent losses from bad checks. Make sure your check policy is in writing and that all employees are trained as to the required procedures. A copy of the written policy should be kept by the cash register for easy access by the employee. Not only are these suggestions helpful in preventing loss to your business, they also will be essential if the matter has to proceed to trial. The following procedures are recommended.
Verify the identity of the check writer.
- Require photographic identification verifying that they are the account holder, such as a driver’s license, passport or ID.
- Compare the photo with the person presenting the check to see if they match.
- Compare the signatures to see if they match.
Require the person presenting the check to sign it in the cashier’s presence. If the check is already signed, you should still require the person presenting the check to sign it again below the first signature.
Make sure the check contains adequate identifying information.
- Document the driver’s license number and state of issuance.
- Document date of birth.
- Document phone number.
- Document any changes to a pre-printed address or phone number.
After all of the security procedures are completed, the clerk should initial the check. This will serve as the clerk’s assertion that they have followed the procedure and assist in identifying witnesses if the matter has to go to court.
Often, forged checks are stolen along with all of the victim’s identification and credit cards. The person who presents the forged check may have several credit cards or other identification that were stolen. Therefore, asking for a social security number or recording credit card numbers will be useless.
For a criminal prosecution, it is imperative that the person who took the check be able to positively identify who wrote the check.
Some additional tips to reduce your losses are:
- Do not take checks from people outside your city, or at least outside the county. (Out of area checks decrease the likelihood of a successful prosecution because the defendant generally cannot be easily identified or located.)
- Don’t take a check for more than the amount of the purchase.
- Prohibit cash refunds until the check has cleared the bank. (It is common for a check writer to purchase an item and then to want to return it for cash.)
- Do not cash checks.
- Do not accept two party checks.
- If you are suspicious, don’t be afraid to stall. A check writer will often present the check when you are very busy. They may be very demanding and try to intimidate you in to trying to rush the purchase and side-step your security procedures.
- If your losses tend to be substantial, consider check verification services and/or not accepting checks.
Remember, you DO NOT have to accept a check from anyone. You can insist that the requirements of your check policy be met before taking a check. Some customers may be frustrated by the new policies, but unless they are planning to write a bad check, they will comply. These policy suggestions cannot be implemented by the courts, the police, or the county attorney — they can only be implemented by you. Whether a bad check writer is knocked out of action depends on you.
Even if all the suggested policies are implemented, there may still be checks for which you do not receive payment. This is when you can turn to your local law enforcement for assistance. It is imperative to understand that neither law enforcement nor the county attorney intend to serve as a collection agency.
We serve the community as enforcer of the laws. We will not use threats of arrest in order to solicit restitution from offenders.
The County Attorney’s Office is not your attorney and will not take direction from the merchant as to whether or not to prosecute an offender. The County Attorney’s Office represent the people of the State of Iowa, and there is a larger problem than if you are repaid on your check. The county attorney has a duty to the citizens of the Iowa to see that the offender is punished and prevent the offender and others from engaging in the same behavior.
Sometimes this requires convicting a person who has paid off the check right before trial. The fact that the check has been paid does not change the fact that a crime was committed.
Once a check is referred to the county attorney’s office, the charge will NOT be dismissed just because the check has been paid. You will still be required to appear in court and testify for the State.
If you are concerned solely with collecting on the checks, you should not submit your bad checks for prosecution. There are a number of collection agencies that are available for that purpose.
PROCEDURE FOR INITIATING CRIMINAL PROSECUTION
If you intend to proceed with criminal prosecution of a bad check, the following procedure must be followed:
- The merchant must send a 10-day notice by certified letter, return receipt requested, to the check writer. (A sample form is attached at the bottom.) However, if it was an account closed check, a 10-day notice need not be sent and the merchant may skip Step 1.
- If the 10-day notice is not complied with, the merchant must provide the following information to the Mar-Mac Police Department:
- The ORIGINAL check;
- Copy of the ten-day notice and either the proof of receipt OR the original returned letter;
- A completed Bad Check Complaint Information Form (a sample form is attached at the bottom);
- An itemization of out-of-pocket expenses;
- Any response received regarding the ten-day notice.
- A Mar-Mac Police Officer will send a letter to the check writer, permitting 14 days for the check writer to make payment to the merchant.
- If the check writer pays the merchant in FULL (including the returned check fee), the merchant must provide to the check writer a written receipt showing the date of payment and the amount of payment and signed by the appropriate agent of the merchant.
- The check writer must then bring proof of payment to the Mar-Mac Police Department.
- It would also be helpful for the merchant to advise the officer that payment was received.
- If payment is not made, the officer will file a criminal complaint, and the matter will be transferred to the county attorney’s office.
ISSUES REGARDING RESTITUTION
Restitution is always ordered as part of the Judgment and Sentence upon conviction of the defendant. However, you should keep the following in mind.
First, having restitution ordered does not necessarily mean the merchant will ever be paid. The Magistrate will enter an Order for the defendant to pay. If the defendant has not paid the total amount ordered, it will be sent by the Clerk of Court to the state’s collection agency CCU. They will make efforts to collect any money due, which may not be sufficient for you to recover your loss.
Secondly, Iowa law permits restitution ONLY for “out-of pocket costs and expenses.” This is limited to items such as postage, copies, bank fees and certified letter costs. The returned check service fee charged by many merchants CANNOT be ordered by the Magistrate as part of restitution. Neither is there any restitution for time spent trying to collect on the check. It is necessary to itemize the costs and expenses to verify to the Magistrate that you made expenditures. Therefore, it is very important to keep an accurate list of expenses. (A sample form is included at the bottom.)
CONCLUSION
Many merchants become frustrated by the time and effort required to follow through with prosecution. Prosecution of a bad check is an attempt by the State of Iowa to convict a person of a criminal offense. This requires that we present evidence to prove by a reasonable doubt that the defendant is guilty. This evidence can be provided only by the merchant and the person taking the check. Additionally, there is nothing to deter bad check writing if they are continually not prosecuted as criminals.
