Shoplifting

A.R.S. § 13-1805What is the Definition?

A person commits shoplifting in Arizona if s/he is in a store and (1) removes merchandise without paying, or (2) uses a fraudulent or stolen credit card to pay, (3) pays less than the purchase price by some trick, (4) transfers merchandise into a personal container to avoid paying, or (5) conceals merchandise. This means that a person can be found guilty of shoplifting before the merchandise even leaves the store!

What Elements of the Crime Must Be Proven?

In order to find you guilty, the prosecutor must prove each of the following two elements to the crime:

  1. You were in an establishment where merchandise is displayed for sale, and
  2. You knowingly obtained the goods with the intent to deprive by way of one of the actions described in (1) through (5) above;

Since intent can be difficult to prove, the legislature made it easier for prosecutors to prove by providing a presumption of intent where the defendant conceals merchandise on himself or another person, or uses a container, instrument, device or article to shoplift.

What are Some Related Offenses?
  • Petty theft under A.R.S. § 13-1802(G): You can be charged with the lowest level of theft where the total value of the items stolen is less than $1,000.
  • Criminal trespass: If you are suspected of trespassing, the store may issue you a trespass form that asks you not to return. If you do return to the store, the owner can call the police to arrest you for criminal trespass.
  • Civil liability under A.R.S. § 12-691 and A.R.S. 12-692: In addition to criminal liability, a shoplifting charge will expose you and your parents (if you are a minor) to civil liability. If you are an adult, you will be liable to the owner for damages that equal: [the retail value of goods obtained] + [$250 penalty] + [actual damages to the store]. If you are a minor, you parents will be liable for the same amount of damages except for a $100 penalty.
Can You Give Me an Example?

Liz, an immigrant from the U.K., was in Nordstrom trying on clothes that she really liked. Unfortunately, when she looked at the tags, she realized there was no way that she could afford them as they totaled about $500. Then, she had an idea, this store is so busy, are they really going to notice if a couple of items go missing? So, she slipped the items underneath her clothes and walked out of the dressing room. Unfortunately, she did not realize that the skirt had a sensor on it, until the alarm went off as soon as she exited the store. A security guard immediately detained her, until the police arrived to arrest her for shoplifting under A.R.S. § 13-1805.

Liz hired Lavy Law to represent her and admitted that she had a prior shoplifting offense in the United States. Since she was a prior offender, she had concealed the clothes, and her theft was for less than $1,000, she was facing a misdemeanor charge with a presumption of intent. Liz was also in the process of getting a green card through her U.S. citizen husband. Lavy Law’s Scottsdale Shoplifting Attorney explained to her that she would ultimately be found inadmissible and removed from the United States with two misdemeanors on her record that were crimes involving moral turpitude (aka: “CIMTs”) Liz. After explaining the immigration consequences of a plea to shoplifting in detail to the prosecutor, he agreed that Liz would indeed suffer a disproportionate punishment and thereby could do a diversion program instead of a plea.

What are the Defenses?
  • Lack of Criminal Intent: one of the two elements to the crime of shoplifting is the intent to deprive. Where the presumption of intent is applied, Lavy Law’s Scottsdale Shoplifting Attorney will do everything we can to rebut the presumption by giving an innocent explanation why the merchandise appeared concealed or was transferred to another container, instrument, device or article. When the presumption is not applied, and you have no prior shoplifting charges, we can argue that you simply forgot to pay by showing that you had the ability to pay or had paid for other items. After all don’t we all have a lot on our minds?
  • Value Defense: For a felony shoplifting charge, the prosecutor must prove the value of the goods beyond a reasonable doubt. This is because the felony shoplifting charges all have threshold amounts of either $1,000 or $2,000. Lavy Law’s Scottsdale Shoplifting Attorney will defend you by proving that the amount of goods taken is lower than the inflated amount alleged. Owners have an incentive to inflate the value of the merchandise taken because they are entitled to damages. Lavy Law will make sure that you are liable for only the actual value of the merchandise taken and nothing more.
  • Constitutional Violations: According to Arizona’s Shopkeeper’s Privilege, owners and their employees may reasonably detain suspected shoplifters in order to question them and call the police. While the owner and employees are not subject to the 4th Amendment Constitutional protections, the police are as soon as they arrive. Lavy Law’s Scottsdale Shoplifting Attorney will review the recorded interviews, video surveillance, and other evidence to determine whether the police violated your Miranda rights, forced a confession, unlawful detained you or your property, or had a lack of probable cause to arrest you.
What are the Penalties?

The penalties of shoplifting depend on the value of the goods taken and whether or not you have a prior criminal record.

Misdemeanor Shoplifting:

Where the goods are valued at $1,000 or less, the Maricopa County District Attorney will charge the crime of shoplifting as a misdemeanor. The maximum penalties for a misdemeanor shoplifting are 180 days in jail, thousands of dollars in fines and surcharges, and 3 years of probation. But, don’t be alarmed; if you are a first time offender, you will likely not receive jail time. Another option for a misdemeanor shoplifting charge is called deferred judgment or diversion. This program is offered in certain misdemeanor courts where the judge will allow you to complete a program to get your charge completely dismissed. Our firm will always advocate for diversion or deferred judgment by highlighting your unique personal circumstances in the case that warrant leniency.

Class 6 Felony Shoplifting:

Although shoplifting is most commonly prosecuted as misdemeanor, you can be found guilty of a Class 4 Felony where the merchandise is valued above $1,000, or you shoplifted a firearm. The penalties for a Class 4 Felony can range anywhere between probation and 2 years in prison. Additionally, you can face up to 5.75 years in prison if you have a prior felony record.

Class 5 Felony Shoplifting:

As mentioned above, the value of merchandise will increase the penalties associated with shoplifting. If the goods are worth $2,000 or more, the shoplifting involves a street gang or criminal syndicate, or you have shoplifted three times within ninety days where the total value of goods is $1,500 or more, then you will be facing a Class 5 Felony. The potential penalties for a Class 5 Felony Shoplifting include anything ranging from probation to 2.4 years in prison. If you are a prior felony offender, then you can face up to 7.5 years in prison.

Class 4 Felony Shoplifting:

Although shoplifting is most commonly charged as misdemeanor, it can be charged as a Class 4 Felony where: (1) the defendant uses an artifice, instrument, container, device or article, or (2) the defendant is a career criminal shoplifter who has been convicted in the past 5 years of two other offenses involving shoplifting, theft, burglary or robbery. If you are charged with a Class 4 Felony, you will be facing penalties that can vary from probation up to 3.75 years in prison. If you have a prior felony record, you can face up to 15 years in prison.

What are the Immigration Consequences?

Although a misdemeanor shoplifting charge sounds insignificant in criminal court, for immigration purposes it can have devastating consequences because it is considered to be a crime involving moral turpitude, also known as a CIMT. For example, if you are trying to obtain a green card through marriage to a U.S. citizen and you already have a misdemeanor on your record, then this additional crime can cost you your permanent residence.

A felony shoplifting charge can affect your immigration status even if you are already admitted to the U.S. as a green card holder. The ICE Attorney’s Office can remove you from the country for a CIMT conviction that occurs within 5 years of your admission for which a sentence of one year or more may be imposed. Additionally, when you leave the country to travel, you will likely have a difficult time re-entering because Customs and Border Patrol will see the conviction on your record and treat you as an arriving alien. This could mean being paroled in to the country and asked to appear for an interview to prove you are still admissible.

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