Not paying back a casino marker gambling debt is a crime in Nevada under NRS 205.130 if the defendant had an "intent to defraud." However, the law presumes defendants have an "intent to defraud" if there are insufficient funds in their bank account when the casino attempts to redeem the marker.
The penalty for not paying back a marker of at least $650 is a felony in Nevada, carrying:
- 1 - 4 years in Nevada State Prison,
- up to $5,000 in fines plus administrative fees,
- full restitution in Nevada, and
- a 5-year waiting period to get a Nevada record seal after the case ends
Common defenses to casino marker charges are:
- the marker was invalid, or
- the defendant had no intent to defraud
Casino marker debts may not be discharged through bankruptcy unless the D.A. drops the charges.
In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of not paying casino markers. Click on a topic to jump to that section:
- 1. Definition of casino markers
- 2. Unpaid markers is a crime
- 3. Defenses to unpaid markers
- 4. Penalties for unpaid markers
- 5. Record seals
- 6. Extradition to Nevada
- 7. Immigration consequences
- 8. Marker debt and bankruptcy
- 9. Related offenses
Casino markers are zero-interest loans that Nevada casinos extend to patrons as an incentive to gamble. Legally, these lines of credit are treated like checks that patrons are expected to redeem -- usually within thirty (30) days.1
Practically speaking, casino markers make gambling more convenient. Without them, patrons would have to carry large amounts of cash on their person or rely on ATMs and pay extra fees.
Customers who want to take out markers from a casino must fill out a credit line application first.2 For examples, see the Venetian credit application, the Mandalay Bay marker limit application, and the MGM marker limit application.
The legal definition of the Nevada crime of "unpaid casino markers" consists of the following two (2) elements:
- the defendant willfully and with an "intent to defraud" took out a casino marker, and
- the defendant had insufficient money in his/her bank account to pay for it3
Nevada law automatically presumes the defendant had the intent to defraud if there were insufficient funds in his/her bank account when the casinos tried to redeem the markers.4 So if a person's bank account overdrafts, the defendant is guilty until proven innocent.5
The only evidence that Nevada courts require a prosecutor to produce in order to convict someone of unpaid casino markers are the following two (2) slips of paper:
- a copy of the original marker, and
- a copy of the marker once the casino tried unsuccessfully to redeem it (stamped NSF for "not sufficient funds")
Nevada is the only state where allegedly not making good on casino markers subjects the person to criminal penalties.6
2.1. Procedures leading up to casino marker charges
Before the state can prosecute someone for allegedly not paying casino markers in Nevada, the casino and D.A. must first take the following steps:
- If a casino believes a patron has not paid back a marker in time, then the casino may go directly to the patron's bank and take the money from his/her account.
- If the patron's account has insufficient funds ("NSF"), the casino then sends the patron a certified letter giving him/her ten (10) days since the mailing date to pay. See an Example of a 10-day notice letter for unpaid casino markers.
- If the patron does not make good on the alleged debt, the casino submits a bad check complaint to the D.A. See an Example of a bad check complaint form. At this point, the patron may no longer pay any outstanding debt to the casinos directly. From now on, the D.A. serves as the middleman between the patron and the casinos and receives any payments he/she may later make. Note that as soon as the case is in the D.A.'s hands, the D.A. tacks on collection fees to the debt amount.
- If the D.A. decides to prosecute the patron for allegedly defaulting on casino markers, the D.A. will send him/her another notice by certified mail giving him/her another ten (10) days from the date of the letter to pay. Any restitution must be paid by money order, cashier's check, or wire transfer and made payable to the appropriate District Attorney's office.
- If the ten (10) days pass with no payment, an arrest warrant in Nevada will issue.7
2.2. Arrest warrants in casino marker cases
Once an arrest warrant is issued for a Nevada casino marker defendant, the police probably will not go searching for him/her to execute the warrant. (However, if the defendant has a long criminal history or is a flight risk, the police might then decide to try to find him/her right away to make an arrest.)
In most cases, the D.A. will mail the defendant a summons notifying him/her of the warrant. The summons will contain instructions to appear in the appropriate Nevada court on a specified date. But note that during this time while the warrant is outstanding, the defendant is vulnerable to arrest if he/she gets pulled over for a traffic violation in Nevada, and the police officer runs a warrant check.
It is important that the defendant arrives at court on the summons date with an attorney. An attorney may be able to persuade the judge to waive bail in Nevada -- called an O.R. (own recognizance) release. Otherwise, defendants who show up without an attorney are more likely to get booked at jail with bail set to the total sum of the alleged casino marker debt.
If the defendant misses the scheduled court date on the summons, the police might then make more of an effort to locate and arrest the defendant. And because the defendant missed a court appearance, the judge would be less likely to grant the defendant an O.R. release later on.8
Two common defenses to Nevada casino marker charges are that:
- the marker was facially invalid, or
- there was no intent to defraud
3.1. Invalid marker
Sometimes casinos issue markers that do not qualify as "checks" under Nevada law. In those instances, courts should not convict people for neglecting to pay them. Markers are invalid if they:
- do not show the payee (the casino), the date, the amount of money, or the defendant's signature,9
- are pre-dated, post-dated,10 or where an agreement was made to hold the check for later payment,
- are unclear as to the identities of the defendant or the casino,
- have been altered or look like forgeries, and/or
- are for pre-existing debt11 and if the casino suffered no monetary injury12
If the defense attorney can show that the markers in question fall outside of Nevada's bad check laws, then the D.A. should dismiss the case.
3.2. No intent to defraud
A Nevada court should not convict defendants of unpaid casino markers if they had no intent to defraud. However, this is a difficult defense strategy: The law presumes that defendants had the intent to defraud if their bank accounts had insufficient funds when the casino tried to redeem the markers.13
But it may still be possible to overcome the presumption of "intent to defraud" depending on the facts of the case. The following circumstances may help chip away at the state's argument that a defendant intended to defraud the casino:
- the defendant had a long, harmonious history of reimbursing casino markers;
- the defendant fell ill after having taken out the markers and was physically unable to repay them;
- the casino intoxicated the defendant with alcohol, thereby compromising his/her judgment when taking out the casino marker;14
- the defendant's bank records show that the defendant did have sufficient funds to pay the marker at the time he/she took them out;15 and/or
- the casino knew the defendant had insufficient funds16
Various defendants in past casino marker cases have challenged whether markers are indeed "checks"17 and argued that NRS 205.130 violates equal protection18 and creates an unconstitutional debtor's prison. So far Nevada courts have rejected these positions.
Incarceration is a penalty for not paying back markers, but Nevada prosecutors may agree to negotiate a payment plan and eventually dismiss the charges. This is especially true if it is the defendant's first offense, and the amount of money at issue is low.
4.1 Penalties for defaulting on Nevada casino markers
Defaulting on casino markers less than $650 is a misdemeanor in Nevada, carrying:
- up to six (6) months in jail, and/or
- up to $1,000 in fines19
Defaulting on casino markers of $650 or more is a category D felony in Nevada, carrying:
- one to four (1 - 4) years in Nevada State Prison,
- full restitution of the outstanding casino marker debt,
- administrative fees (an extra 5% of each marker of $10,000 or less, and an extra 10% of each marker of more than $10,000), and
- a $5,000 fine (at the judge's discretion)20
Note that suspects face separate charges for each individual unpaid casino marker, not just one charge for the entire debt. Las Vegas criminal defense attorney Michael Becker illustrates how this works:
Example: John defaults on a $5,000 marker and a $20,000 marker from the Venetian. Since neither marker is for less than $650, the D.A. prosecutes John for two felonies. If John gets convicted, a judge in Clark County District Court may sentence him to:
- up to eight (8) years in Nevada State Prison (up to four (4) years for each marker),
- $25,000 in restitution (the total value of both markers),
- $2,250 in administrative fines (5% of the smaller marker plus 10% of the larger), and
- up to $10,000 in fines (up to $5,000 for each marker)
Also, note that casino marker defendants may face civil prosecution as well as criminal. In practice however, Las Vegas casinos rely on the Clark County District Attorney's Office to recover their money and never bring civil lawsuits.
But if the D.A. decides not to prosecute -- or if the criminal case is taking too long -- casinos might resort to suing the defendant in civil court. Their typical causes of actions are "breach of contract" and "unjust enrichment."21
4.2. Plea bargains for defaulting on Nevada casino markers
Nevada prosecutors are well aware that defaulted casino markers are non-violent offenses, and that incarcerated defendants cannot earn money to pay back the casinos. Therefore, prosecutors are usually willing to resolve casino marker cases.
If the defendant has no prior casino marker cases and behaves cooperatively, prosecutors may be willing to set up a monthly payment plan. Once the casinos get reimbursed in full, the D.A. may dismiss the charges.
However, repeat casino marker offenders may not be able to escape prosecution even if they pay everything back. The D.A. may request that the defendant remains on probation for a few years and be barred from entering Nevada casinos to gamble.
4.2.1 Civil confessions of judgment
Another option the D.A. may consider is for the defendant to plead guilty to a Nevada gross misdemeanor in exchange for signing a civil confession of judgment. This is a legal admission that the defendant owes the casinos money. This way, the only way casinos can pursue their money is through suing the defendant in civil court.
The advantage of this approach is that the defendant forgoes prison by being on probation. And the casino may decide not to take the trouble and expense of suing the defendant after all, especially if he/she is judgment-proof.
The waiting period to seal a felony casino marker conviction in Nevada is five (5) years after the case ends. For misdemeanor casino marker convictions, the record seal waiting period is one (1) year after the case ends.22
If the casino marker case gets dismissed (which means the defendant never gets convicted), the case may be sealed right away.23
A Nevada arrest warrant will issue for casino marker defendants who leave the state. Other states are required to execute Nevada arrest warrants even though they do not treat unpaid casino markers as a crime.24
Note that every state has its own extradition laws and procedures. Some states like Florida and Hawaii may allow a suspected fugitive to be released on bail pending extradition, but others like California do not.
Therefore it is important that suspects retain counsel before being arrested out-of-state so they can try to prevent an arrest in the first place. Negotiating casino marker cases is much easier if the suspect is not in custody. Learn more about Nevada extradition laws.
A non-U.S. citizen can get deported for not paying back a marker if the charge is for a felony. Not paying back casino markers is considered a crime involving moral turpitude because it involves "intent to defraud." Therefore, non-U.S. citizens convicted of a felony casino marker crime face deportation.25
Aliens charged with violating NRS 205.130 should hire an experienced criminal defense attorney as soon as possible. If the D.A. agrees to dismiss the charges in exchange for a financial settlement, the immigrant should be able to avoid removal. Learn more about the criminal defense of immigrants in Nevada.
A debt for unpaid casino markers may not be discharged in bankruptcy unless the criminal charges get dismissed.
Bankruptcy does not protect Nevada casino marker debtors from criminal prosecution. Therefore, anyone charged with or convicted of unpaid casino markers are not permitted to discharge the restitution in bankruptcy.
But if the D.A. decides not to prosecute a defendant for unpaid casino markers, he/she should be able to discharge the casino debts in bankruptcy.26
9.1. Gaming fraud (NRS 465.070)
The Nevada crime of gaming fraud is an extremely broad offense. It can include using insider information to get an advantage while gambling, or manipulate a gaming device with the intent to cheat. A first-time offense is a category B felony in Nevada, carrying:
- 1 - 6 years prison, and/or
- up to $10,000 in fines, and
9.2. Cheating at Gambling (NRS 465.083)
The Nevada crime of cheating at gambling occurs when a person tries to alter the elements of chance in a game. A first-time offense is a category B felony, carrying:
- 1 - 6 years prison, and/or
- up to $10,000 in fines, and
9.3. Forgery (NRS 205.090)
The Nevada crime of forgery occurs when someone intentionally attempts to defraud another by means of falsified documents. Like unpaid casino markers of $650 or more, forgery is prosecuted as a category D felony. The penalties include:
- 1 - 4 years in prison, and
- up to $5,000 in fines (at the judge's discretion), and
Accused of unpaid casino markers in Nevada?
No matter whether you have been falsely accused or are just going through a tough time financially, our Las Vegas casino marker attorneys will draw on our extensive experience to try to win you a dismissal or reduction in your casino marker case.
We are devoted to negotiating with prosecutors in an effort to resolve your criminal charges so you walk away with no jail or criminal record. Phone us at 702-DEFENSE (702-333-3673) for a free phone consultation.
People struggling with a gambling addiction may want to look into joining Gamblers Anonymous.
Our attorneys serve our clients' criminal defense needs throughout Clark County and Washoe County, Nevada, including Las Vegas, Henderson, North Las Vegas, Mesquite, Boulder City, Laughlin, Searchlight, Moapa, Carson City, Reno, Pahrump, and elsewhere in Nye County.
- Fleeger v. Bell, 2001, 23 Fed.Appx. 741, 2001 WL 1491252 (Under Nevada law, a marker is a check.). In the 1990s, the Nevada legislature changed the law to give casino markers the same legal status as checks. Therefore, casinos could now draw on a patron's bank account if they did not repay their casino markers in time.
- Nguyen v. State, 116 Nev. 1171, 1172-1173 (2000) ("In general, patrons apply for casino credit by completing a standard form setting forth the name of the applicant, his or her address, the name of the applicant's bank, and the bank account number. Casino personnel approve the applications pending verification of the basic bank information, including the average balance of the applicant's account. An applicant may receive all or a portion of the credited amount at a gaming table in the form of a "marker." The marker is an instrument, usually dated, bearing the following information: the name of the player; the name, location, and account number of the player's bank; and the instruction " Pay to the Order of" the casino for a specific value in United States dollars. The marker also contains a stipulation whereby the payor represents that the amount drawn by the marker is on deposit in the referenced financial institution, and that he guarantees payment. The player and a casino representative sign the marker. The player then exchanges the marker for gaming tokens or "chips," which may be exchanged for currency with the casino cashier. When a patron has concluded play, he either pays the full amount of the marker he has obtained or leaves the casino with the marker outstanding. If the marker remains outstanding, casino personnel attempt to notify the patron and, after a specified period of time, submit the marker to the patron's bank for collection.FN1 Should the bank account contain insufficient funds, the casino will again attempt contact with the patron. If payment is not forthcoming, the gaming establishment has the option to refer the customer for possible criminal prosecution.").
- NRS 205.130.
- NRS 205.132.
- Nguyen v. State, 116 Nev. 1171, 1173 (2000) ("The practice of allowing a customer to pay gaming debts with a second check is a matter of courtesy and convenience to the customer.").
- In 1995, the Clark County District Attorney began criminally prosecuting bad check cases. The rationale was that debtors would be more likely to pay up if they were threatened with prison. It is now standard practice for Las Vegas casinos to seek repayment first through the Clark County D.A.'s Bad Check Unit. The D.A. is basically the casino's debt collector. Instead of hiring their own lawyers, casinos use the D.A. to recover private funds. Some federal courts in other states do not consider unpaid casino markers to be "bad checks" at all. Therefore, the only recourse casinos in other states use to recover casino marker debts is the civil court system. Christina DiEdoardo, "Gambling Markers: A convenience for some, and a nightmare for others," Las Vegas Review-Journal (January 14, 2001). Nelson Rose, "In Nevada, It's Pay your Markers or Go To Jail," Gaming Law Review, Vol 5, Issue 5, p. 425 - 426 (October 2001) ("Law enforcement officials do not normally act as collection agencies, but two recent decisions from two different courts in Nevada have indicated this practice may be legal, or that at least there is nothing patrons can do about it.").
- Clark County D.A. Bad Check Unit.
- Id. A criminal defense attorney may also be able to persuade the judge to forgo having the defendant booked at jail to get fingerprints and a mug shot in favor of doing a quick walk-through at a sheriff's office.
- Nguyen v. State, 116 Nev. 1171, 1175-1176 (2000) ("By its terms, NRS 205.130 applies to instruments that are drawn upon a bank, payable on demand, signed by the payor, and which instruct the bank to pay a certain amount to the payee. Given the foregoing analysis, we conclude that the markers at issue in the instant case fall within the purview of the bad check statute.").
- Nguyen v. State, 116 Nev. 1171, 1177 (2000) ("Nguyen alternatively contends that he had no intent to defraud because the markers were post-dated instruments (meaning that the instruments bore dates later than the date they were issued). He argues that, as a matter of law, postdating a check is prima facie evidence that there is no intent to defraud...Assuming Nguyen's argument is based upon a correct statement of Nevada law (we have never addressed the issue), the markers in this case were not post-dated. Rather, they bore the date upon which they were executed. Nguyen also argues that the agreement by the gaming establishments to hold the markers for a period of time rendered them the "equivalent" of post-dated checks. However, just as there is no evidence here that the parties intended the markers to represent a loan instrument, there is no evidence that the parties mutually understood that the markers were post-dated checks. The face of the documents demonstrates that they were payable on demand, at the time of issuance.").
- State v. Jarman, 84 Nev. 187, 189 (1968) ("we hold that NRS 205.130(1) does not apply to checks given for pre-existing debts.'").
- Hoyt v. Hoffman, 82 Nev. 270, 272 (1966) ("The legislature did not intend to make it a crime to issue a worthless check absent damage or injury to the payee thereof. Such damage or injury does not exist when the check is given for a pre-existing debt.").
- Nguyen v. State, 116 Nev. 1171, 1176 (2000) ("We conclude that Nguyen's intent to defraud was circumstantially demonstrated by his failure to pay the full amount due within the statutory period, and by the return of the instruments from his bank with the notation "Account Closed.").
- NRS 463.368.
- Burke v. State, 96 Nev. 449, 452 (1980) ("However, it is equally clear that a state may constitutionally imprison "a defendant with the means to pay a fine who refuses or neglects to do so." Tate v. Short, supra 401 U.S. at 400, 91 S.Ct. at 672.").
- Zahavi v. State, 131 Nev. Advance Opinion 2 (2015).
- Nguyen v. State, 116 Nev. 1171, 1175 (2000) ("Although NRS 205.130(1) does not explicitly define the term "check or draft," we construe this undefined term in accordance with its ordinary and plain meaning.").
- Nguyen v. State, 116 Nev. 1171, 1178 (2000) ("The markers were, as we have concluded, simply checks, payable on demand and facially negotiable at the time of issuance. Nguyen offers no particularized evidence demonstrating how these alleged offenses were selectively prosecuted."); Parkus v. State, 88 Nev. 553, 554 (1972) ("We therefore hold that NRS 205.130(1) is not vague and unconstitutional.").
- NRS 193.150.
- NRS 205.130.
- Anthony N. Cabot, "Casino Collection Lawsuits: The Basics," Gaming Law Review, 4(4): 319-331 (2000).
- NRS 179.245.
- NRS 179.255.
- See, e.g., Nguyen v. State, 116 Nev. 1171 (2000), and Fleeger v. Bell, 2001, 23 Fed.Appx. 741, 2001 WL 1491252. Both defendants were extradited from other states on a Nevada arrest warrant for unpaid casino markers; U.S. Constitution, Article. IV., Section. 1. ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.").
- 8 U.S.C. § 1227 (a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43); 8 U.S.C. § 1227 (a)(2)(A)(i); INA § 237(a)(2)(A); 8 U.S.C. § 1182(a)(2)(A). Katherine Brady and Dan Kesselbrenner, Grounds of Deportability and Inadmissibility related to crimes, National Immigration Project. ("Whether a crime involves moral turpitude depends on the elements of the offense, not the name of the offense. Compare Matter of Balao, 20 I&N Dec. 440 (BIA 1992) (holding that offense of passing bad checks involves moral turpitude because fraud was an element of the offense) with Matter of Bart, 20 I&N Dec. 436 (BIA 1992) (holding that offense of passing bad checks does not involve moral turpitude because fraud was not an element of the offense).).
- Vernon Nelson, "Casino debtors will not find a haven from Nevada's bad check statute in bankruptcy," Nevada Gaming Lawyer (September, 2013)