AN ACT Relating to unlawful issuance of checks; amending RCW 9A.56.060, 62A.3-515, and 62A.3-520; adding a new section to chapter 9A.56 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 9A.56.060, chapter 260, Laws of 1975 1st ex. sess. as last amended by section 1, chapter 138, Laws of 1982 and RCW 9A.56.060 are each amended to read as follows:

(1) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or other depository, to meet said check or draft, in full upon its presentation, shall be guilty of unlawful issuance of a bank check in the first degree. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or other depository for the payment of such check or draft, and the uttering or delivery of such a check or draft to another person without such fund or credit to meet the same shall be prima facie evidence of an intent to defraud.

(2) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft on a bank or other depository for the payment of money and who issues a stop-payment order directing the bank or depository on which the check is drawn not to honor said check, and who fails to make payment of money in the amount of the check or draft or otherwise arrange a settlement agreed upon by the holder of the check within twenty days of issuing said check or draft shall be guilty of unlawful issuance of a bank check in the first degree.

(3) When any series of transactions which constitute unlawful issuance of a bank check in the first degree would, when considered separately, constitute unlawful issuance of a bank check in the first degree in an amount of two hundred fifty dollars or less because of value, and the series of transactions are a part of a common scheme or plan, the transactions may be aggregated in one count and the sum of the value of all of the transactions shall be the value considered in determining whether the unlawful issuance of a bank check in the first degree is to be punished as a class C felony or a gross misdemeanor.

(4) Unlawful issuance of a bank check in the first degree in an amount greater than two hundred fifty dollars is a class C felony.

(5) Unlawful issuance of a bank check in the first degree in an amount of two hundred fifty dollars or less is a gross misdemeanor and shall be punished as follows:

(a) The court shall order the defendant to make full restitution within ninety days of the date of sentencing;

(b) The defendant need not be imprisoned, but the court shall impose a minimum fine of ((~~five hundred~~)) one thousand dollars. Of the fine imposed, at least ((~~fifty~~)) one hundred dollars shall not be suspended or deferred. Upon conviction for a second offense within any twelve-month period, the court may suspend or defer only that portion of the fine which is in excess of ((~~five hundred~~)) one thousand dollars.

NEW SECTION. Sec. 2. A new section is added to chapter 9A.56 RCW to read as follows:

(1) A person commits the crime of unlawful issuance of a bad check in the second degree if the person makes, draws, utters, or delivers any check, or draft, on a bank or other depository for the payment of money, knowing that it will not be honored by the drawee.

(2) For purposes of this section, unless the check or draft is postdated, it is prima facia evidence of knowledge that the check or order would not be honored if:

(a) The drawer has no account with the drawee at the time the check or draft is drawn or uttered; or

(b) Payment is refused by the drawee for lack of funds, upon presentation within thirty days after the date of utterance, and the drawer fails to make good within fifteen days after receiving notice of refusal.

(3) Any of the following is a defense to prosecution under this section:

(a) The payee or holder knows or has been expressly notified before the drawing of the check, or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment on its presentation; or

(b) The check is postdated and sufficient funds are on deposit with the drawee on such later date for the payment in full of the check.

(4) Unlawful issuance of a bank check in the second degree is a misdemeanor and shall be punished as follows:

(a) The court shall order the defendant to make full restitution within ninety days of sentencing;

(b) The defendant need not be imprisoned, but the court shall impose a minimum fine of five hundred dollars. Of the fine imposed, at least fifty dollars shall not be suspended or deferred. Upon conviction for a second offense within any twelve-month period, the court may suspend or defer only that portion of the fine which is in excess of five hundred dollars.

Sec. 3. Section 1, chapter 23, Laws of 1967 ex. sess. as last amended by section 1, chapter 254, Laws of 1981 and RCW 62A.3-515 are each amended to read as follows:

Whenever a check as defined in RCW 62A.3-104 has been dishonored by nonacceptance or nonpayment the payee or holder of the check is entitled to collect a reasonable handling fee for each such instrument. When such check has not been paid within fifteen days and after the holder of such check sends such notice of dishonor as provided by RCW 62A.3-520 to the drawer at his last known address, then if the instrument does not provide for the payment of interest, or collection costs and attorneys fees, the drawer of such instrument shall also be liable for payment of interest at the rate of twelve percent per annum from the date of dishonor and cost of collection not to exceed forty dollars ((or the face amount of the check, whichever is the lesser. In addition, in the event of court action on the check the court, after such notice and the expiration of said fifteen days, shall award a reasonable attorneys fee as part of the damages payable to the holder of the check. This section shall not apply to any instrument which has been dishonored by reason of any justifiable stop payment order)). Notwithstanding any criminal penalties which may apply, in any action against the drawer, after such notice and the expiration of said fifteen days, the plaintiff may recover damages in an amount equal to one hundred dollars or triple the amount of the check, whichever is greater, but in no case more than five hundred dollars. The court shall also award reasonable attorney fees as part of the damages payable to the holder of the check. Subsequent to the commencement of the action but prior to the hearing, the defendant may tender to the plaintiff as satisfaction of the claim, an amount of money equal to the sum of the amount of the check, the incurred court and service costs, said collection costs, and statutory interests from the date of the check.

This section shall not apply to any instrument which has been dishonored by reason of any justifiable stop payment order. Nothing in this section precludes the right to commence action in any court under chapter 12.40 RCW for small claims.

Sec. 4. Section 2, chapter 62, Laws of 1969 as amended by section 2, chapter 254, Laws of 1981 and RCW 62A.3-520 are each amended to read as follows:

The notice of dishonor shall be sent by mail to the drawer at his last known address, and said notice shall be substantially in the following form:

NOTICE OF DISHONOR OF CHECK

A check drawn by you and made payable by you to .......... in the amount of .......... has not been accepted for payment by .......... , which is the drawee bank designated on your check. This check is dated .......... , and it is numbered, No. ..... .

You are CAUTIONED that unless you pay the amount of this check within fifteen days after the date this letter is postmarked, you may very well have to pay the following additional amounts:

(1) costs of collecting the amount of the check, including an attorney's fee which will be set by the court; ((~~and~~))

(2) interest on the amount of the check which shall accrue at the rate of twelve percent per annum from the date of dishonor; and

(3) damages equal to three times the face amount of the check, but not less than one hundred dollars, nor more than five hundred dollars by award of the court.

You are advised to make your payment to .......... at the following address: .................... .

NEW SECTION. Sec. 5. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.