(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CHECK. A written, unconditional order to pay a sum certain in money, drawn on a bank, savings and loan association, industrial bank or credit union payable on demand, and signed by the drawer. CHECK, for the purpose of this section only, also includes a negotiable order withdrawal and a share draft.
DRAWEE. The bank upon which a check is drawn on or a bank, savings and loan association, industrial bank or credit union on which a negotiable order of withdrawal or a share draft is drawn.
DRAWER. A person, either real or fictitious, whose name appears on a check as the primary obligator, whether the actual signature be that of himself or herself or of a person authorized to draw the check on such person.
INSUFFICIENT FUNDS. A drawer has INSUFFICIENT FUNDS with the drawee to pay a check when the drawer has no checking account, negotiable order of withdrawal account or share draft account with the drawee or has funds in such an account with the drawee in an amount less than the amount of the check, plus the amount of all other checks outstanding at the time of issuance; and a check dishonored for “no account” shall also be deemed to be dishonored for INSUFFICIENT FUNDS.
ISSUE. A person issues a check when he or she makes, draws, delivers or passes it or causes it to be made, drawn, delivered or passed.
NEGOTIABLE ORDER OF WITHDRAWAL and SHARE DRAFT. Negotiable or transferable instruments drawn on a negotiable order of withdrawal account or share draft account, as the case may be, for the purpose of making payments to third persons or otherwise.
NEGOTIABLE ORDER OF WITHDRAWAL ACCOUNT. An account in a bank, savings and loan association or industrial bank and SHARE DRAFT ACCOUNT means an account in a credit union, on which payment of interest or dividends may be made on a deposit with respect to which the bank, savings and loan association or industrial bank or the credit union, as the case may be, may require the depositor to give notice of an intended withdrawal not less than 30 days before the withdrawal is made, even though in practice such notice is not required and the depositor is allowed to make withdrawal by negotiable order of withdrawal or share draft.
(B) (1) It shall be unlawful to commit fraud by check. Any person, knowing he or she has insufficient funds with the drawee, who, with intent to defraud, issues a check for the payment of services, wages, salary, commission, labor, rent, money, property or other things of value commits fraud by check.
(2) This section shall only apply when the fraudulent check was for a sum less than $2,000, and where the offender has not been twice previously convicted under C.R.S. § 18-5-205, as amended, or a former or successor statutes of the state of similar content and purport.
(C) A bank, a savings and loan association, an industrial bank or a credit union shall not be civilly or criminally liable for releasing information relating to the drawer’s account to any police officer, the Town Attorney or authorized investigators for the Town Attorney investigating or prosecuting a charge under this section.
(E) This section does not relieve the prosecution from the necessity of establishing the required culpable mental state. However, for the purpose of prosecution under this section, the issuer’s knowledge of insufficient funds is presumed, except in the case of a postdated check or order, if:
(1) He or she has no account upon which the check or order is drawn with the bank or other drawee at the time he or she issues the check or order; or
(2) He or she has insufficient funds upon deposit with the bank or other drawee to pay the check or order on presentation within 30 days after the issue.
(F) In addition to any other court costs, a defendant who pleads guilty or nolo contendere to, or who enters into a plea agreement for, or who, after trial, is found guilty of a violation of this section, shall be assessed additional court costs of $25 to defray the costs of the town pertaining to the enforcement of this section. Subject to appropriations and budgeting as provided by law, such amounts may be used to defray the costs of police related equipment of this section.
(G) If a plea agreement is approved, or if the defendant pleads guilty or nolo contendere to, or who, after trial, is found guilty of a violation of this section, the court, as a condition of any sentence, may require the defendant to make restitution on all checks issued by the defendant which are unpaid as of the date of sentencing, in addition to other terms and conditions appropriate for the treatment or rehabilitation of the defendant.
(Ord. 4-07, passed 12-12-2007) Penalty, see § 130.99