This is the next post in my series on the handling of bad check cases in Phoenix, Arizona. My last post discussed why writing a bad check is considered a crime in Arizona. It is important to understand that passing an insufficient fund check is not simply a “private matter” between two parties. It can, and often is, charged as a crime. In this article I will discuss another important topic – the defenses available to those in Maricopa County and elsewhere who have been charged under A.R.S. 13-807.
There are three situations in which one, who has been charged with passing a bad check in Arizona, may assert a defense. These situations are:
- If the payee (the person receiving the check) was notified by the defendant that the check was bad before the payee deposited it or if the payee has other knowledge indicating the check is bad
- If the check is postdated and there are sufficient funds in the bank account on the day the check is dated for
- If the insufficiency occurred due to an adjustment to the defendant’s bank account without sufficient notice from the defendant’s financial institution
It is important to understand that the existence of any of these circumstances will not necessarily prevent the prosecutor from filing misdemeanor or felony charges; if the District Attorney is not aware of the above circumstances then they may still proceed. If charges are filed, however, then a criminal defense attorney can help you achieve a dismissal by asserting an affirmative defense.
It will be the defendant’s responsibility to assert any of the defenses above. The defendant will also have to prove facts supporting the defense. In other words, if the defendant informed the payee that the check will bounce then it is the payee’s responsibility to prove that he or she did, in fact, inform the payee. It is also necessary to understand that the Court is not required to believe the evidence provided by the defendant. If, for example, the defendant claims that the vendor was called and informed that the check was bounced, but no phone records can be provided proving that the phone call took place, then the Court may find that the payee was not informed. This can result in the defendant being convicted. It is crucial, therefore, that one have a lawyer who can assist them in proving their affirmative defense.
I am a Phoenix bad check lawyer who is able to assist with the assertion of an affirmative defense. I will use your initial consultation to determine the facts of the case and to identify evidence which must be gathered on your behalf. My office strives for regular client communication and will keep you up to date throughout the process. Call today to speak with an attorney. I also handle cases in cities such as Mesa, Glendale, Scottsdale, Chandler, Gilbert, and throughout Maricopa County. I also assist Pima County residents in Tucson and others throughout the state.