Is Over Drafting on a Bank Account with a Debit Card or Check a Crime?

I recently wrote a check and knew at the time that I did not have enough money in my bank account to cover the full amount. I was hoping that I could add enough funds to my account before the check was cashed to cover it, but I wasn’t able to and now the check has bounced. I know that my bank will charge me overdraft fees, but can I also be charged with a crime?

The short answer is it is possible. Under Florida law, there are many ways you could potentially face criminal charges for check fraud. For example, it is illegal to write a check or use a debit card while knowing at the time that there are insufficient funds in your account. It is also a crime to cash or deposit a check into your account with the intent to defraud, forge checks, forge signatures or sign someone else’s name on a check, or otherwise alter a check and then deposit it into your account or cash it. Writing a check and then improperly issuing a “stop payment” order on it to prevent it from being cashed is also a crime.  Issuing a worthless check or debit card order is a misdemeanor of the first degree punishable by up to one-year imprisonment and a fine if the amount is less than $150. If the amount is $150 or more, it becomes a felony of the third degree, punishable by up to five years imprisonment and a more severe fine. Cashing or depositing a check with the intent to defraud is also a felony of the third degree. All are theft and fraud crimes.

There are several defenses available to these charges that an experienced attorney may be able to raise on your behalf. The person using the debit card or writing the check cannot be charged if the person or business they gave the check to or used the debit card with knows, has reason to know, or has been expressly informed that there were not sufficient funds in the account to cover the transaction. Postdating a check to be cashed in the future or verbally asking that the check not be cashed until a date in the future can also be a defense. Surprisingly, making a payment for the overdrawn amount at a later date in an attempt to remedy the situation is not a defense.

While check fraud cases may not initially seem as complex as other types of fraud cases, anyone charged with a check fraud offense should consult with an experienced attorney to review all defenses available to them as well as the burden the prosecution will have in proving their case to determine their best course of action.

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