When a person has written a merchant a bad check, there are special rules under South Dakota Codified Law that must be followed before a theft by check case can be prosecuted. Because there are special rules for prosecution, merchants must always exercise reasonable caution when accepting a check.
Please note: Civil remedies may be available to you, even if criminal prosecution is not an option. You are encouraged to consult with your own attorney about civil options.
Check Identity Guidelines:
Because the prosecution of a bad check passer is dependent upon the ability of the receiver to identify the person, five steps should be followed for every check accepted.The person accepting the check must:
- Request the check passer’s driver’s license or state issued ID card to establish his/her identity.
- Note on the check, the actual driver’s license number or state issued ID card number of the check passer. (The person accepting the check should be the one to write the number).
- Compare the photo and signature on the driver’s license or state issued ID card to the person and signature on the check, making a note on the check of PM (photo matches), SM (signature matches), or PI (personal identification – i.e. personal knowledge/familiar with individual passing the check to extent could identify later when testifying under oath. Friend, acquaintance, regular business associate, etc.).
- Check to make sure the address on the driver’s license or state issued ID card is correct. If necessary, correct the current address. A post office box is insufficient. Note the passer’s telephone number on the check.
- Place your initials (person accepting the check) beside the date the check was accepted after verifying the above steps.
If the above steps are completed at the time of accepting the check, then the identification problems often encountered in bad check cases will be significantly reduced. This process must be followed on every check.
Additional Check Acceptance Guidelines:
- Verify that all the numbers written on the check are accurate.
- Ensure the check is signed and dated correctly and matches the signature on the identification card.
- Merchants should instruct employees of the procedure to follow if discrepancies arise.
- Similar procedure should be established by the store for payroll checks or any other check you may cash.
- Identification information should be on the front of the check in the upper left-hand corner.
South Dakota Law does not allow criminal prosecution if:
- Six (6) months have passed since the check was written. (SDCL §22-30A-36).
- The check is post-dated or held for any length of time. (SDCL §22-30A-29).
- The check is taken seven (7) days or more after the goods or services are delivered. (SDCL §22-30A-28).
- The property was returned/payment was made within thirty (30) days of the notice of dishonor. (SDCL§22-30A-26).
- The check was given for payment on an existing account (car payments, utilities, house/rent payments). (SDCL§22-30A-28).
- Any conditions under SDCL §22-30A-37 are met.
Checks will not usually be prosecuted by the Clay County State’s Attorney if:
- The check is a two-party check (prosecution prohibited under South Dakota law, with rare exceptions).
- A proper identification procedure has not been followed.
- A certified letter has not been sent to the check writer notifying him/her of the bad check.
- The merchant cannot tell the state’s attorney which employee took the check.
- The check passed through the mail (lacking present consideration).
- Check returned as “Stop Payment” (unless it can be demonstrated the stop payment was used with the specific intent to defraud).
How to Initiate a Bad Check Case:
- Fill out the notice of dishonor and make two copies.
- (original to be mailed, one copy for your records, one for state’s attorney)
Click Here to access a ‘Notice of Dishonor’ document to fill out.
- Mail the original notice of dishonor to the check writer by certified mail.
- At the time of the mailing, request from the post office a return receipt.
- By South Dakota statute there is a 30-day waiting period from the day the notice of dishonor is mailed out to the day the merchant can bring the complaint to the state’s attorney for prosecution.
NOTE: if the individual pays you within that 30 days, the matter ends here. No prosecution may be pursued.
- If no payment is received, then following the 30-day waiting period after sending the notice of dishonor, present the following to the state’s attorney’s office:
- The original check and all attached bank returns;
- A copy of the notice of dishonor to the check writer;
- A completed and signed certificate or the unclaimed envelope from the post office;
- A completed, notarized affidavit (if not notarized then do not sign the affidavit until you are at the State’s Attorney’s Office where a notary may assist you).
Click Here to access a ‘Bad Check Affidavit’ document to fill out.