A person with a bank account writes a bad check (also known as a non-sufficient funds or NSF check) when he deliberately or with knowledge writes a check for an amount of funds he knows are not available in the account. The crime of writing a bad check may also occur when a person writes a check on an account that has been closed. Another bad check scheme that may result in criminal charges occurs when an account holder writes a check for an amount in excess of the funds in the account, and deposits the check in a second account (often at a different bank)—and then withdraws the funds from the second account before the check is presented to the first bank for payment.

Bad check laws vary from state to state, and are usually located in the state’s penal or criminal code (statutes). Banks and criminal prosecutors recognize that a person can inadvertently write a check for more than the funds on deposit in their account, and not every instance will result in criminal charges. But many state laws have an expansive definition of the required knowledge or deliberate intent to write a bad check, and a criminal prosecutor does not have to prove a defendant charged with a bad check offense knew exactly how much money was in the account when the defendant wrote the check to prove the defendant knew he was writing a bad check or deliberately wrote a bad check.

In New Mexico, writing a bad check, also known as issuing a nonsufficient funds (NSF) check, is addressed under the state's criminal statutes. According to New Mexico Statutes Annotated (NMSA) 1978, Section 30-36-3, it is unlawful for a person to issue a check knowing that they do not have sufficient funds in their account to cover the amount of the check. This also applies to checks written on an account that has been closed. The law presumes that the issuer knew of the insufficient funds if they had no account with the bank at the time of issuing the check, or if payment was refused by the bank for lack of funds within 30 days after the check was issued and the issuer failed to make good on the check within 10 days after receiving notice of the refusal. The severity of the offense can range from a petty misdemeanor to a fourth-degree felony, depending on the amount of the check. The state recognizes that not every instance of a bad check is intentional, and inadvertent mistakes do not always lead to criminal charges. However, the law does provide a broad definition of the knowledge or intent required to commit the offense, and a prosecutor does not need to prove the exact balance in the account at the time the check was written to establish that the defendant knowingly or deliberately issued a bad check.