February 21, 1975
Representative Beverly Halling
State Capitol Building
Pierre, South Dakota
OFFICIAL OPINION NO. 75-34
SDCL 22-41-3.1
Dear Representative Halling:
You have asked whether the holder of a bad check must comply with SDCL 22-41-3.1, requiring notice of dishonor to the writer of the check, before a prosecution can be instituted. Specifically, if the holder knows that the writer will be leaving the jurisdiction before the holder can give such notice, may prosecution be started immediately?
SDCL 22-41-3.3 provides:
The service of a notice of dishonor in accordance with §§22-41-3.1 and 22-41-3.2 shall not constitute an element of the crime of insufficient funds check nor shall it be deemed to be either an element of proof thereof or a defense to any prosecution therefor.
It is clear that notice of dishonor is not an element of the crime. It is not required as an element of proof. Finally, failure to give the notice is not a defense.
SDCL 22-41-3.3 was inserted to require merchants to attempt to collect their own checks before bringing them to the state's attorney. Its existence does not prohibit the state's attorney from prosecuting immediately in emergency or other circumstances where he deems it advisable.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:rw
