The City Attorney’s Office is not to be used as a collection agency to substitute for civil remedies to obtain restitution on dishonored checks, however it is the policy of the City Attorney’s Office to assist victims in the prosecution of dishonored checks, where a criminal violation of Minnesota Statute Section 609.535 has occurred.
Check Eligible for Prosecution
The City Attorney’s Office will accept dishonored checks under the following conditions:
- The check cannot be more than 90 days old from the date of issuance. The check must be written in an amount of at least $25. Two or more checks for a lesser amount may not be combined in order to meet the $25 requirement.
- The owner or manager of the business must be able to identify the employee who accepted the check. The employee accepting the check must view one reliable form of identification from the check writer (Defendant). The identification presented must contain a photograph of the defendant, usually a driver’s license. The employee accepting the check should pay particular attention to the photograph. The employee must record, on the front of the check, the type of identification offered. (i.e., Minnesota Driver’s License Number K500…). In many cases the driver’s license number is printed on the face of the check - the employee should initial and circle it to indicate that they did check it.
- The check must be received in person within the city limits of Winona, Minnesota. If a check is received through the mail, it will not be referred for prosecution.
- The check must not be for a past consideration or be postdated.
- The defendant’s bank must be located in the State of Minnesota. Out-of-state banks are not required to provide law enforcement necessary data or documentation for prosecution purposes; therefore checks from out-of-state banks will not be accepted for prosecution.
- Dishonored checks presented in the City of Winona by an out-of-state resident will be accepted for referral only if one of the following can be established: the defendant is employed in the State of Minnesota, and the defendant’s bank is located in the State of Minnesota, or the defendant is a student at a school in the State of Minnesota, and the defendant’s bank is located in the State of Minnesota.
- The employee who accepted the check must complete an information sheet on each dishonored check he or she accepts. (See Dishonored Check Form (PDF)). Please complete the form carefully. If the employee cannot testify regarding a physical description, leave that section blank.
- No agreement to accept partial payment or delayed payment should be made with the defendant prior to or after referral to the City Attorney’s Office.
- The strongest testimony is where the employee can positively identify the defendant in court. However, that is often not the case. The procedures outlined above will allow the employee to testify as to the reliable identification procedures followed in accepting the check. This testimony, along with a match of the defendant’s signature on the bank contract and the check, should provide sufficient proof to establish beyond a reasonable doubt that the defendant wrote the check.
Notice & Demand for Payment
A notice of nonpayment or dishonor of the check (PDF) must be sent to the defendant.
It is required by statute that this notice be mailed to the address printed on the check. If the printed address is crossed out, and a new address written in, it is recommended that notice be sent to the new address as well as the printed address. If the business knows of a later current address, notice may also be mailed to that address. The statutory requirement of notice to the address printed on the check must be met. This notice must be sent one of two ways:
- By regular mail supported by an affidavit of service by mailing (this is the most prompt method)
- By certified mail, return receipt requested (it is recommended that the receipt also request “restricted delivery”)
The manager or owner of the business must understand that referring a dishonored check to the City Attorney’s Office may not guarantee restitution or criminal action. If, through investigation by the County Attorney’s Office, it is determined that the circumstances surrounding the issuance of the check are civil in nature, the check along with this information will be returned, enabling the manager or owner of the business to commence civil action. To obtain further information on Conciliation Court, you may contact the Court Administrator’s Office at 507-457-6386.
The manager or owner of the business should further understand that he\she may be charged for costs incurred in prosecuting a check case (i.e., charges by banks for account documents).