What Is the Difference Between Forgery and Uttering?
Under Virginia Code §18.2-172, forgery and uttering are both crimes, but they are not the same offense. Forgery involves making a false writing which, if true, would be of some legal effect. Uttering is the assertion by words or action that a writing which one knows to be forged is valid.
Is Uttering a Felony?
People commonly misunderstand the concepts of "forgery" and "uttering" as they appear in the Virginia code. That said, both forgery and uttering carry the same penalty as Class 5 felonies of up to 10 years in the penitentiary, so they are serious charges.
Forgery
Let's start by understanding the concept of forgery. When most people think of the forgery, they think of someone drafting the signature of another and representing it as authentic. While this certainly would be a form of forgery under the Virginia Code, the term is actually far broader than this common understanding. First and foremost, forgery is writing. Copying photographs, painting, sculptures, etc. would not be covered under this section (although these could be charged in other ways). To constitute forgery, such writing must have some legal effect. In other words, if one were to copy another's signature on a blank piece of paper simply for the pleasure of doing so that would not constitute a forgery. That action becomes a crime when the action is done "to the prejudice of another's right."
There are countless actions that would constitute a forgery, far too many to be described in this post. But some of the more common are signing the name of another to a contract or other legal document. Writing the name of another on a negotiable instrument, such as a check, would constitute forgery. So too would signing medical documents or insurance paperwork with the signature of another.
Forgery of a Public Record
There is a separate and more serious offense involving forgery of a public record under Code §18.2-168. Unlike forgery of a private document, forgery of a public record is a class 4 felony, also punishable by up to 10 years in prison. A common example of forgery of a public record is writing the name of another person on a traffic summons. This is a fairly common charge in Virginia; essentially a person presents a third-party identification to a police officer upon being stopped and then signs the summons with the name of the third party. The third party then has a court date of which they have no knowledge, and a potential warrant for their arrest when they do not show up for court! So you can see why this is a big deal!
Uttering
Uttering, on the other hand, does not require that the defendant write anything at all. On the contrary, uttering is the assertion by word or action that a writing known by the presenter to be forged is valid. Essentially, the presentation to another of a document known to contain a forgery would constitute uttering. Even though these offenses seem very similar, they are separate and distinct, and can be charged separately.
Passing Bad Checks
Uttering is also separate and distinct from passing bad checks, which is covered under Virginia Code §18.2-181. This code section criminalizes the uttering of a check for which the presenter knows there are insufficient funds. This is different than uttering under §18.2-168 in that the check need not be a forgery, it simply must be knowingly written on an account with insufficient funds.
The bottom line is that these charges are quite common in Virginia courts, and they are quite serious as well. It is not unusual for judges and juries to dispense lengthy prison sentences in these types of cases. For that reason, it is critical that you contact an aggressive criminal defense attorney if you or someone you love is facing charges of forgery or uttering. Let us fight for you!