The issuance of a check on an account that is closed or has insufficient funds may constitute a crime for which the maker of the check may be prosecuted. The issuance of a check that is not honored may also give rise to a civil claim for damages. Your option to proceed will depend on the circumstances in your case.

Whether the issuance of a bad check is a crime will depend on several factors. You should review these factors carefully against the particular facts in your case before applying for a warrant or a citation. The elements of the criminal offense of Deposit Account Fraud (bad check) are contained in O.C.G.A. 16-9-20.

1. Dishonor of the check - the check must be dishonored by the drawee (who the check is made out to) for one of the reasons set forth in the statute.
2. Knowledge by the maker of the check that it would not be honored.
3. Present consideration - the check must have been given for present consideration.

The proper venue for the prosecution of the offense of deposit account fraud is the county in which the check was presented. This is true regardless of where your home office may be located or where the person who tendered the check resides.

The check must be dishonored by the drawee for one of two reasons: 1. No account or account closed. This is based on the status of the account at the time the check was made, drawn, uttered, or delivered, not at the time it was presented to the bank for payment. 2. Lack of funds - the check must have been deposited or presented for payment within 30 days of the date delivered, and the accused has failed to make payment of the check and a service charge within 10 days after receiving written notice that the check has been dishonored. A copy of the notice that will satisfy this requirement may be found in the forms section of this website. There are many other reasons why a check may not be paid upon presentation. However, only the reasons set forth in the statute will support a criminal prosecution. If the check has been dishonored for another reason you should review the availability of civil remedies for bad checks.

Present consideration includes:

1. Goods or services tendered for check.
2. Rent that is presently or past due.
3. Child support, pursuant to court order or written agreement.
4. State taxes, whether or not past due.
5. Simultaneous agreement for the extension of additional credit where additional credit is being denied.

Present consideration does not include:

1. Post-dated check.
2. Payment on an installment account or on an open account for goods/services previously received.
3. Request by the defendant to the victim to hold the check.

Be sure employees have followed all items on this checklist:

1. Keep a permanent record of home address of the clerk who actually received the check. This person will be a critical witness who must identify the person who made the check if the case goes to trial.
2. Deposit all checks within 30 days of receipt.
3. Within 90 days of receipt of check, mail certified demand letter to the address given by the maker of the check. Give the maker of the check at least 10 days and 3 days for mailing before prosecuting criminally. Try to telephone the accused and keep a record of your efforts.
4. Make sure the check is actually one for present consideration.
5. Unusual situations such as: post-dating, stop payment, agreement to hold check, forgery, often prevents the collection from proceeding under criminal prosecution. You may wish to seek legal counsel for further information.
6. If management has received partial payment, proceed to civil remedy only.
7. Make photocopies of check (front and back), the 10 day demand letter, the certified mail notice, and/or the envelope mailed to the maker of the check if returned unclaimed.
8. Proceed criminally for all checks that meet checklist in the county where the check was passed.
9. Proceed civilly (in Magistrate Court if the amount is $15,000.00 or less) against all other checks in the county where the defendant lives.
10. Refer all persons to the Magistrate Court who want to payoff bad check charges after criminal prosecution begins.
11. Be prepared to pay a filing fee. Please see the list of filing fees for the fee for this service.

Bring with you the original check and a copy of the check (front and back), a copy of the ten day letter, the certified mail receipt or returned letter if unclaimed, and the filing fee.

Depending on the particular check, you will be asked to fill out an application for either an arrest warrant or a citation. These forms are available on this website under forms and in the Magistrate Court Clerk's office.

When a citation is issued, the accused maker of the check will be notified that prosecution has commenced. The accused can dispose of the case by paying the check, service charge, warrant application fee and a fine. The accused can also plead not guilty and request a trial of the case. If the accused does not dispose of the case or appear in court by the date specified on the citation, an arrest warrant may be issued. Only misdemeanor cases may be prosecuted by citation.

A bad check arrest warrant is an order of the court directing any duly authorized law enforcement official to arrest the person named in the warrant for the offense. The accused will be arrested and, in most instances, allowed to post bond to secure their appearance at trial. All felony bad checks are prosecuted by warrant. A felony bad check warrant is when a check is in the amount in excess of $500.00, or where the check is drawn on an out of state bank, regardless of the amount of the check. Also, warrants are issued in the following situations: the accused has failed to respond to a citation or the accused could not be located so that a citation could be served.

Cases prosecuted by citation are tried in the Magistrate Court, unless the accused demands a jury trial. In that event, the case is transferred to the State Court for trial. Cases prosecuted by warrant are tried in the State Court if the offense is a misdemeanor or in the Superior Court if the offense is a felony.

In the Magistrate Court individuals are allowed to file an application for a criminal warrant as long as they have a police report. The case would be scheduled for a pre-warrant hearing and notices are mailed out to all parties. At the pre-warrant hearing, the Judge will hear testimony from the parties and if sufficient evidence is given, an arrest warrant may be issued at that time.

You must have the correct name and home address for the defendant. You are also required to have a police report. Please see the list of filing fees for the fee for this service.

A good behavior warrant is an application to keep the peace. If someone is threatening or harassing you and you have given them notice not to have any contact with you but they continue to do so, you can file a good behavior warrant. Once the good behavior warrant has been served to the defendant, they can agree to the terms of the good behavior warrant by waiving their hearing and it would remain in effect for 60 days. If they don't waive their hearing, the case will be scheduled for a court date. At that time, if the Judge finds sufficient evidence to continue the bond, it will remain in effect for 60 days.

You must have the correct name and home address for the defendant. Please see the list of filing fees for the fee for this service.