Desperate and stressful financial times often lead people to make poor decisions that result in them breaking the law. A common financial crime committed during such times is deposit account fraud which, essentially, occurs when a person makes a payment with a financial instrument such as a check and knows that the payment will not be honored. Whether it is a single and unemployed parent who writes a bad check for groceries or businessman who pays a vendor for their services/products with a check that he knows is worthless, both are examples of deposit account fraud.
Deposit Account Fraud in Georgia
law, O.C.G.A. § 16-9-20, a person commits the
offense of deposit account fraud when such person makes, draws, utters,
executes, or delivers an instrument for the payment of money on any bank or
other depository in exchange for a present consideration or wages, knowing that
it will not be honored by the drawee. It is prima-facie evidence that the
accused knew that the instrument would not be honored if:
(1) The accused had no account with the drawee at the time the instrument was made, drawn, uttered, or delivered;
(2) Payment was refused by the drawee for lack of funds upon presentation within 30 days after delivery and the accused or someone for him or her shall not have tendered the holder thereof the amount due thereon, together with a service charge, within ten days after receiving written notice that payment was refused upon such instrument; and,
(3) Notice mailed by certified or registered mail or statutory overnight delivery is returned undelivered to the sender when such notice was mailed within 90 days of dishonor to the person at the address printed on the instrument or given by the accused at the time of issuance of the instrument.
In order for a person to be convicted of deposit account fraud, the prosecution must prove beyond a reasonable doubt that the accused wrote the check knowing that the account the financial instrument was written against was closed or that there were insufficient funds in the account.
under the statute, “instrument” means a check, draft, debit card sales
draft, or order for the payment of money and “present consideration” shall
include without limitation:
(A) An obligation or debt of rent which is past due or presently due;
(B) An obligation or debt of state taxes which is past due or presently due;
(C) An obligation or debt which is past due or presently due for child support when made for the support of such minor child and which is given pursuant to an order of court or written agreement signed by the person making the payment;
(D) A simultaneous agreement for the extension of additional credit where additional credit is being denied; and,
(E) A written waiver of mechanic’s or materialmen’s lien rights.
Penalties for Deposit Account Fraud in Georgia
convicted of the offense of deposit account fraud shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished as follows:
(A) When the instrument is for less than $100.00, a fine of not more than $500.00 or imprisonment not to exceed 12 months, or both;
(B) When the instrument is for $100.00 or more but less than $300.00, a fine of not more than $1,000.00 or imprisonment not to exceed 12 months, or both; or
(C) When more than one instrument is involved and such instruments were drawn within 90 days of one another and each is in an amount less than $100.00, the amounts of such separate instruments may be added together to arrive at and be punishable under subparagraph (B) of this paragraph.
Penalty for a Misdemeanor of a High & Aggravated Nature…
A person convicted of the offense of deposit account fraud, when the instrument is for an amount of not less than $300.00 nor more than $499.99, shall be guilty of a misdemeanor of a high and aggravated nature. When more than one instrument is involved, and such instruments were given to the same entity within a 15-day period and the cumulative total of such instruments is not less than $300.00 nor more than $499.99, the person drawing and giving such instruments shall upon conviction be guilty of a misdemeanor of a high and aggravated nature.
for a Felony Conviction…
A person convicted of the offense of deposit account fraud, when the instrument is for $500.00 or more, shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not less than $500.00 nor more than $5,000.00 or by imprisonment for not more than three years, or both. Further, the defendant may be required to make restitution of the amount of the instrument. The court may require the defendant to pay as interest a monthly payment equal to one percent of the amount of the instrument.
Penalty for Deposit Account Fraud Committed in Another State…
A person who commits the offense of deposit account fraud by the making, drawing, uttering, executing, or delivering of an instrument on a bank of another state shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years or by a fine in an amount of up to $1,000.00, or both.
Georgia Case Law & Deposit Account Fraud
Under the statute, a person cannot be charged with deposit account fraud unless the payment is given for present consideration or wages. In the Supreme Court of Georgia case Griffith v. State. 249 Ga. 19, (1982), the Court reviewed the interpretation of the “present consideration” requirement necessary to support a deposit account fraud conviction.
In this case, Griffith was indicted and convicted on three counts of deposit account fraud. The Court affirmed one of the convictions but reversed two of the convictions because the checks were not issued for present consideration.
Griffith operated a gasoline service station. He issued three checks on the business account, payable to Thomas Oil Company as payment for gasoline delivered to the gas station. The check in count one of the indictment was issued by Griffith on December 12, 1978, as payment for gasoline delivered on that date. The second count was based upon a check issued on January 24, 1979, for deliveries made and evidenced by invoices dated January 16, 1979 and January 18, 1979. The third check was issued on February 8, 1979 for a delivery on February 5, 1979.
The Court held that the facts of this case did not support a finding that the checks in counts two and three were given for present consideration. The circumstances of the issuance of these checks did not evidence a single contemporaneous transaction. The Court stated that present consideration in this context means that the check must be in exchange for something of value. Cobb v. State, 246 Ga. 567 (272 SE2d 299) (1980). The law requires a contemporaneous transaction because the payee must give up something of value in reliance on the check in question. Brooks v. State, 146 Ga. App. 626 (247 SE2d 209) (1978).
“Goods were delivered to Griffith in reliance on an understanding that a check would be issued at an unfixed future date. Payment was not required on delivery. The issuance of the checks several days later did not cause the seller to be deprived of something of value.” Accordingly, the convictions under counts two and three were reversed by the Court.
Possible Defenses Against a Deposit Account Fraud Charge
In its’ opinion, the Court in Griffith cited Brooks, which requires evidence of a contemporaneous transaction to support a deposit account fraud conviction because the payee must give up something of value in reliance on the check in question. Thus, no crime is committed if the payor did not receive “something of value” or benefit from the payee, which could be one possible defense to be argued. Further, under the statute, it must be proven that the defendant was aware of the worthlessness of the financial instrument.
Contact Bixon Law Today
If you have been charged with deposit account fraud or any crime for that matter, it is imperative
that you consult an experienced criminal defense attorney immediately—one that will fight vigorously to get your case dismissed or the charges against you reduced. Here, at Bixon Law, we will evaluate the facts and circumstances of your case to build the best defense. We represent clients in Atlanta and throughout the state of Georgia. Our lawyers are committed to helping people in difficult situations and working to get our clients the best possible outcome. We invite you to call us at 404-551-5684 for a free consultation today.