Passing a bad check is tendering a check for goods or service, from a bank account that has insufficient funds to pay the full amount of the check. It happens every day, to the tune of millions of dollars in California alone. Even attempting to tender a check with insufficient funds is a crime. The payee does not need to receive the check and attempt to cash or deposit it.

It is a serious offense, one that can be prosecuted as a felony or a misdemeanor (“a wobbler”). The decision of how to charge it depends upon the circumstances of the fraud and the defendant’s prior criminal history.

There is no minimum amount below which a prosecutor is barred from prosecuting someone, however, if the check amount is $450 or less and the individual has no prior conviction for passing bad checks, forgery or petty theft when the conduct was passing bad checks or forgery, the case must be filed as a misdemeanor.

The maximum fine, if the case is filed as a misdemeanor, is $1,000. If the case is filed as a felony and there is a conviction, the judge is permitted to fine defendant up to $10,000 and sentence the individual to up to three years in state prison, although this is rarely done. Such consequences may not be the client’s only concern, however, as the “victim” may file a civil lawsuit as well to recover the loss.

Often, the person tendering the check made a simple oversight. Other times, the intention to defraud is more clear. District Attorneys look for certain tell-tale signs of this by seeing if the check was written on a new account, i.e. the check number is low or even the first check, or the check is written on a closed checking account. Other times, the person writing the check will intentionally make the amount of the check expressed in words not match the handwritten amount in words.

The defenses to a charge of violating Penal Code