Shoplifting, Petty Theft and Return Fraud Charges

This article will answer frequent questions about criminal charges for shoplifting, petty theft and retail/return fraud.

What is the difference between shoplifting and fraud?

Shoplifting is the theft of merchandise from a store or retail establishment. Return fraud typically involves either (a) the purchase of an item for a lower price at one store and the fraudulent “return” of that item to a second store for a “refund” at a higher price, or (b) the fraudulent “return” of an item stolen from the same store or to another location for a refund, regardless of amount received.

What must be proven by a prosecutor to be found guilty of shoplifting?

State shoplifting laws vary widely but, in general, virtually of them require two elements to be proven in order to be found guilty of the crime of shoplifting:

  • You willfully concealed or took possession of an item(s) offered for sale by the owner
  • You intended to remove the item(s) from the possession of the store owner without paying the purchase price

Note that in order to be found guilty of the crime of shoplifting, a prosecutor only needs to prove intent” and not the successful removal of the item from the store. If you just hide the merchandise in an attempt to prevent detection, that is enough to be found guilty of shoplifting.

Can I be found guilty of shoplifting for changing the price tag on an item?

In general, yes. Any actions you may take to avoid paying the full purchase price on an item could make you guilty of shoplifting. This includes acts such as altering price tags, changing price tags between items, swapping the goods in containers that have different prices. An attempt to pay less than you should have paid (not a cashier’s mistake) can result in a shoplifting charge.

What criminal charges may I face for shoplifting?

The type of criminal charges you may face for shoplifting depends upon the value and type of the goods in issue. In addition to monetary value, some states will punish shoplifting crimes more severely when they involve firearms, weapons and other dangerous items. There are generally three types of offenses:

  • infractions - civil or criminal in nature and usually result in a fine
  • misdemeanors - crimes that may result in small fines (under $1,000) and jail time (less than one year)
  • felonies – serious crimes which may result in a significant fine and jail time greater than one year.

In some limited instances, a very minor shoplifting offense might be considered an infraction which can be treated as (a) a civil offense not punishable by jail which usually contains a monetary fine or (b) a minor criminal offense with the possibility of limited jail time and/or a monetary fine. States often charge shoplifters with a misdemeanor, a criminal offense more serious than an infraction that is usually punishable by a fine and/or jail time. For petty misdemeanors which usually involve shoplifting of small amounts, potential sentences include a fine of up to $500 and/or jail time of up to six months. There are also ordinary, high and gross misdemeanors for more serious cases of shoplifting and, in some instances, a felony charge for serious crimes.

How are shoplifting charges selected? What if I have prior criminal convictions?

The prosecutor has the ability to choose what charge or charges are appropriate in a case. Not only may prior criminal convictions (especially theft related) present an issue with the prosecutor, but some states have laws that automatically punish more severely those who are repeat offenders. If you have any prior criminal convictions, it is highly advisable to speak to an experienced criminal defense attorney to handle your case

Can I avoid shoplifting charges on my criminal record? How about expungement?

If you received an “infraction”, it may not be criminal in nature. However, most shoplifting charges are usually considered misdemeanors. If your shoplifting charge is “petty theft” or “petit larceny”, which may also be a “Class A Misdemeanor”, you might be able to avoid jail time or a criminal conviction – if it is your first offense.

There are times when a prosecutor may offer an “Adjournment in Contemplation of Dismissal” – also known as an “ACD” – for first time offenders facing petty theft shoplifting charges. An ACD involves the case being adjourned for a period of time during which you will be on “probation.” The case is not decided – there simply is no decision. If you complete that probationary period successfully without getting into any further trouble, your case will be dismissed and may be sealed. You will be able to say that you have never been convicted of a crime and it is as if the shoplifting crime never happened. If you do get in trouble, such as another arrest during the probationary period, the prosecutor has an ability to reopen the case (and unseal the case) and pursue charges.

It is also possible for a prosecutor to offer a shoplifter an option of to plead guilty to another offense for “disorderly conduct” – which is an infraction and not a criminal charge. When a disorderly conduct plea is offered by a prosecutor, it too is only usually for first offenders who must also stay out of trouble for a probationary period beginning from the date of the plea.

Expungement may be an option if you have been convicted for the first time of a misdemeanor shoplifting offense. Expungement is the process of sealing and removing a criminal charge from your record. The crime is not “pardoned” – it only allows a person convicted of a crime to move on past a minor offense so it will not continue to affect them in the future. State law defines the expungement process can be found in state law and also from an experienced criminal defense attorney.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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