Statute for 18 – 5 – 205 – Fraud By Check (Insufficient Funds)
Here is the charge you are facing:
18-5-205. Fraud by check – definitions – penalties
(1) As used in this section, unless the context otherwise requires:
(a) “Check” means a written, unconditional order to pay a sum certain in money, drawn on a bank, payable on demand, and signed by the drawer. “Check”, for the purposes of this section only, also includes a negotiable order of withdrawal and a share draft.
(b) “Drawee” means the bank upon which a check is drawn or a bank, savings and loan association, industrial bank, or credit union on which a negotiable order of withdrawal or a share draft is drawn.
(c) “Drawer” means a person, either real or fictitious, whose name appears on a check as the primary obligor, whether the actual signature be that of himself or of a person authorized to draw the check on himself.
(d) “Insufficient funds” means a drawer has insufficient funds with the drawee to pay a check when the drawer has no checking account, negotiable order of withdrawal account, or share draft account with the drawee or has funds in such an account with the drawee in an amount less than the amount of the check plus the amount of all other checks outstanding at the time of issuance; and a check dishonored for “no account” shall also be deemed to be dishonored for “insufficient funds”.
(e) “Issue”. A person issues a check when he makes, draws, delivers, or passes it or causes it to be made, drawn, delivered, or passed.
(f) “Negotiable order of withdrawal” and “share draft” mean negotiable or transferable instruments drawn on a negotiable order of withdrawal account or a share draft account, as the case may be, for the purpose of making payments to third persons or otherwise.
(g) “Negotiable order of withdrawal account” means an account in a bank, savings and loan association, or industrial bank, and “share draft account” means an account in a credit union, on which payment of interest or dividends may be made on a deposit with respect to which the bank, savings and loan association, or industrial bank or the credit union, as the case may be, may require the depositor to give notice of an intended withdrawal not less than thirty days before the withdrawal is made, even though in practice such notice is not required and the depositor is allowed to make withdrawal by negotiable order of withdrawal or share draft.
(2) Any person, knowing he has insufficient funds with the drawee, who, with intent to defraud, issues a check for the payment of services, wages, salary, commissions, labor, rent, money, property, or other thing of value, commits fraud by check.
(3) Fraud by check is:
(a) (Deleted by amendment, L. 2007, p. 1693, § 8, effective July 1, 2007.)
(b) A class 2 misdemeanor if the fraudulent check was for the sum of less than five hundred dollars or if the offender is convicted of fraud by check involving the issuance of two or more checks within a sixty-day period in the state of Colorado totaling less than five hundred dollars in the aggregate;
(b.5) A class 1 misdemeanor if the fraudulent check was for the sum of five hundred dollars or more but less than one thousand dollars or if the offender is convicted of fraud by check involving the issuance of two or more checks within a sixty-day period in the state of Colorado totaling five hundred dollars or more but less than one thousand dollars in the aggregate;
(c) A class 6 felony if the fraudulent check was for the sum of one thousand dollars or more, or if the offender is convicted of fraud by check involving the issuance of two or more checks within a sixty-day period in the state of Colorado totaling one thousand dollars or more in the aggregate, or if the offender has been twice previously convicted under this section or a former statute of this state of similar content and purport;
(d) A class 6 felony if the fraudulent check was drawn on an account which did not exist or which has been closed for a period of thirty days or more prior to the issuance of said check.
(4) Any person having acquired rights with respect to a check which is not paid because the drawer has insufficient funds shall have standing to file a complaint under this section, whether or not he is the payee, holder, or bearer of the check.
(5) Any person who opens a checking account, negotiable order of withdrawal account, or share draft account using false identification or an assumed name for the purpose of issuing fraudulent checks commits a class 2 misdemeanor.
(6) If deferred prosecution is ordered, the court as a condition of supervision shall require the defendant to make restitution on all checks issued by the defendant that are unpaid as of the date of commencement of the supervision in addition to other terms and conditions appropriate for the treatment or rehabilitation of the defendant.
(7) A bank, a savings and loan association, an industrial bank, or a credit union shall not be civilly or criminally liable for releasing information relating to the drawer’s account to a sheriff, deputy sheriff, undersheriff, police officer, agent of the Colorado bureau of investigation, division of gaming investigator, division of lottery investigator, parks and outdoor recreation officer, Colorado wildlife officer, district attorney, assistant district attorney, deputy district attorney, or authorized investigator for a district attorney or the attorney general investigating or prosecuting a charge under this section.
(8) This section does not relieve the prosecution from the necessity of establishing the required culpable mental state. However, for purposes of this section, the issuer’s knowledge of insufficient funds is presumed, except in the case of a postdated check or order, if:
(a) He has no account upon which the check or order is drawn with the bank or other drawee at the time he issues the check or order; or
(b) He has insufficient funds upon deposit with the bank or other drawee to pay the check or order, on presentation within thirty days after issue.
(9) Restitution for offenses described in this section may be collected as a condition of pretrial diversion by a district attorney, an employee of a district attorney’s office, or a person under contract with a district attorney’s office. Such collection is governed by the provisions of article 18.5 of title 16, C.R.S., and is not the collection of a debt.
When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases. To answer these questions, Criminal Defense Attorney turn to "case law." That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.
Colorado Penalties for Fraud By Check (Insufficient Funds)
The charge of Fraud By Check (Insufficient Funds), is categorized as a:
F6, if check was for $1,000 or more
M1, if check was for $500 to $1,000
M2, if check was less than $500
F6, if check was for $500 or more
M2, if check was for $100 to $500
Click here to find out how much jail time is associated with this penalty.
How to Use This Information
After you have hired a Denver Colorado Criminal Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case. To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty. These things are called “elements”.
The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Denver Colorado Criminal Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.
Please find the model jury instruction for Fraud By Check (Insufficient Funds) below. These will be adapted by your Denver Colorado Attorney for your case.
The elements of the crime of fraud by check are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. with intent to defraud, and 4. knowing he had insufficient funds with the drawee 5. issued a check for payment of services, wages, salary, commissions, labor, rent, money, property, or other things of value, and 6. the check involved was for the amount of [less than five hundred dollars] [five hundred dollars or more, but less than one thousand dollars] [one thousand dollars or more] [the offense involved two or more checks issued within a sixty day period in the State of Colorado having an aggregate amount of [five hundred dollars or more, but less than one thousand dollars] [one thousand dollars or more]] -orthe check involved was for the amount of [less than one hundred dollars] [one hundred dollars or more, but less than five hundred dollars] [five hundred dollars or more] [the offense involved two or more checks issued within a sixty day period in the State of Colorado having an aggregate amount of [one hundred dollars or more, but less than five hundred dollars] [five hundred dollars or more]] 7. [without the affirmative defense in instruction number ______ .] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of fraud by check. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of fraud by check. NOTES ON USE The values changed for offenses committed on or after July 1, 2007. Delete inapplicable bracketed material. When this instruction is used, the applicable definitions of ?check,? ?drawee,? “insufficient funds,? and ?issue? must be given. A special verdict form may be needed with this instruction. See special rule on permissible inferences.
To begin the process of analyzing your case, think about your case from the perspective of the prosecutor. Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your Denver CO Criminal Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence. Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court. For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court. Additionally, talk to your attorney about whether you have any defenses to Fraud By Check (Insufficient Funds).
Don’t Forget about Immigration:
If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.
The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.