(a) Definitions. For the purpose of this section, the following terms have the meanings given them. (1) Check means a check, draft, order of withdrawal, or similar negotiable or nonnegotiable instrument. (2) Credit means an arrangement or understanding with the drawee for the payment of a check. (b) Acts constituting. Whoever issues a check which, at the time of issuance, the issuer intends shall not be paid, is guilty of issuing a dishonored check and may be sentenced as provided in subsection (b)(1). In addition, restitution may be ordered by the court. (1) Penalties. A person who is convicted of issuing a dishonored check under subsection (b) is: (A) guilty of a petty misdemeanor punishable by imprisonment for not more than sixty (60) days or by payment of a fine of not more than $500, or both, if the value of the dishonored check, or checks aggregated under paragraph (2), is not more than $250; or (B) guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, or by payment of a fine of not more than $2,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (2), is more than $250, but not more than $1000; or (C) guilty of a felony punishable by imprisonment for not more than five (5) years, or by payment of a fine of not more than $5,000, or both, if the value of the dishonored check, or checks aggregated under paragraph (2), is more than $1,000. (2) In a prosecution under this paragraph, the value of dishonored checks issued by the defendant in violation of this subsection within any six-month period may be aggregated and the defendant charged accordingly in applying this section. (c) Proof of intent. Any of the following is evidence sufficient to sustain a finding that the person at the time the person issued the check intended it should not be paid: (1) proof that, at the time of issuance, the issuer did not have an account with the drawee; (2) proof that, at the time of issuance, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within thirty (30) days after mailing of notice of nonpayment or dishonor as provided in this subsection; or
(3) proof that, when presentment was made within a reasonable time, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within thirty (30) days after mailing of notice of nonpayment or dishonor as provided in this subsection. Notice of nonpayment or dishonor that includes a citation to this section shall be sent by the payee or holder of the check to the maker or drawer by certified mail, return receipt requested, or by regular mail, supported by an affidavit of service by mailing, to the address printed on the check. Refusal by the maker or drawer of the check to accept certified mail notice or failure to claim certified or regular mail notice is not a defense that notice was not received. The notice may state that unless the check is paid in full within thirty (30) days after mailing of the notice of nonpayment or dishonor, the payee or holder of the check will or may refer the matter to proper authorities for prosecution under this section. An affidavit of service by mailing shall be retained by the payee or holder of the check. (d) Proof of lack of funds or credit. If the check has been protested, the notice of protest is admissible as proof of presentation, nonpayment, and protest, and is evidence sufficient to sustain a finding that there was a lack of funds or credit with the drawee. (e) Exceptions. This section does not apply to a postdated check or to a check given for a past consideration, except a payroll check or a check issued to a fund for employee benefits. SOURCE: G.P.C. § 476(a); *M.P.C. § 224.5; Cal. § 1042 (1971); Mass. ch. 266, § 23; N.J. § 2C:21-5. Repealed and reenacted by P.L. 23-084:2 (Mar. 12, 1996). CROSS-REFERENCES: § 43.15 - Theft § 43.20 -Classification of Theft. COMMENT: Section 476(a) of the Penal Code is superseded by this Section. Section 46.30 eliminates the requirement under the Penal Code that check be drawn “with intent to defraud.” This requirement has been used by some of the courts of Guam to essentially eliminate the crime of issuing bad checks as, in most cases, a specific intent to defraud is very difficult to prove. This Section should remedy that problem. On the other hand, the offense here has been classified as a petty misdemeanor. Further, defenses are presented in this Section which will make this Section more difficult to be used by merchants as a means of collecting money. Note, however, that where a back check is issued as part of an attempted or committed theft, the defendant may be prosecuted for the more serious offense. 2014 NOTE: Subsection designations in subsection (b) were altered to adhere to the Compiler’s alpha-numeric scheme pursuant to the authority granted by 1 GCA § 1606.