Request By:
Mr. Eugene Young
Owen County Court Clerk
Owenton, Kentucky 40359
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
As County Clerk of Owen County you have written to ask whether the Department of Transportation may revoke a license and motor vehicle registration under KRS 186.191 where a person has paid the county clerk with a cold check. KRS 186.191, which became effective July 15, 1980, provides:
"186.191. Revocation of document relating to motor vehicle due to illegal act. -- The department of transportation shall revoke any license permit, certificate of title, registration, or other document relating to a motor vehicle which it finds has been issued due to fraud, bribery, theft of documents, or other illegal act with respect thereto by any person or organization seeking an official document relating to such vehicle."
The mere giving of a cold check, while always poor business policy, is not always an illegal act. If a person through a mistake in balancing his or her check book or for some other reason does not know that he or she has given a cold check, then he or she has not done anything illegal. Under certain circumstances, however, the passing of a cold check may constitute Theft by Deception in violation of KRS 514.040. That statute provides in part:
"(1) A person is guilty of theft by deception when he obtains property of another by deception with intent to deprive him thereof. A person deceives when he:
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(c) Issues or passes a check . . . for the payment of money knowing it will not be honored by the drawee.
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"(4) For the purposes of subsection (1), an issuer of a check . . . is presumed to know that the check . . . other than a post dated check . . . would not be paid if:
"(a) The issuer had no account with the drawee at the time the check or order was issued:
(b) Payment is refused by the drawee for lack of funds, upon presentation within thirty days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal." [Emphasis added]
The passing of a cold check is an illegal act only after the person who issued the check has been convicted of theft by deception. Therefore, you cannot seek to have the Department of Transportation revoke the license or registration until after the person has been prosecuted.
Further, before you seek to have someone who has given a cold check prosecuted, you should send that person notice that the bank has refused to honor the check and that if he or she does not make the check good within ten days after receiving the notice, you will invoke the sanctions of KRS 514.040.
If the person does not pay, and if the person is subsequently convicted of theft by deception on the basis of that check, then the license and registration may be revoked under KRS 186.191 by the Department of Transportation.
We would remind you that this is not the only course available to you to collect debts which arise when people give cold checks. You have two civil remedies available to you under the provisions of KRS 186.230. These have been discussed at length in OAG 77-104, a copy of which is enclosed for your information.