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| Sometimes even good people shoplift |
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In, State v. Hanson, 85 Wis. 2d 233, 245-46 (1978) the Wisconsin Supreme Court famously wrote that, "For the average law abiding American citizen, minor traffic offenses constitute the only contact such a person will have with the law enforcement and judicial systems." That may have been true in 1978; however, it is probably not true anymore that traffic offenses are the only contact that an average law-abiding citizem may have with law enforcement. In 2013, the category of retail theft-- or, "shoplifting"-- must definitely be included in the category of offenses committed by generally law abiding persons.
Why this is true may never be known. The difficult economy may contribute to a higher incidence of shoplifting. Another clear factor is that the merchants are making a much greater effort to stop retail theft, and they employ very sophisticated technology in doing so. Consequently, many people find themselves in the embarrassing situation of having to face a charge of retail theft.
The retail theft law has become one of the more complicated laws on the books. A person commits the crime in a number of ways besides simply walking out of the store with the merchandise. For example, altering the price tag on an item is retail theft. Similarly, even though you are still within the confines of the store, if you conceal the merchandise, you may be convicted of retail theft.
A charge of retail theft may be either a municipal ordinance violation, a misdemeanor criminal charge or, potentially, a felony criminal charge. Generally, a first offense shoplifting charge will be issued as a municipal ordinance violation. For such convictions, there is no possibility of a jail sentence. It is not a criminal offense. Rather, the court may impose only a civil forfeiture. These forfeitures, though, can be very hefty depending upon the municipality. The State may also charge a shoplifter criminally; that is, with an offense that may result in jail time. If the value of the merchandise is less than $500, the offense is a Class A misdemeanor, which carries with it a maximum of nine months in jail. The offense is a Class I felony if the value of the merchandise exceeds $500 but does not exceed $5,000, and this means as much as three years and six months in jail. The offense is a Class H felony if the value of the merchandise exceeds $5,000 but does not exceed $10,000, and this means a penalty of up to six years in prison. Finally, shoplifting is a A Class G felony if the value of the merchandise exceeds $10,000, which carries up to ten years in prison. Bear in mind that where a number of items are involved in the retail theft, it is the combined value of the items that determines the penalty. Also, if the State can prove that the defendant was involved in a number of retails thefts over a period of time, the offenses may be combined into one offense for the purpose of making the offense a felony. Therefore, it should be clear that shoplifting can very quickly and easily become a very serious matter.
Ifere are the top five things you should do if you find yourself facing a charge of retail theft:
Do not flee store security. Most times, the police are not involved in an initial arrest for shoplifting. Instead, the defendant is likely to first be confronted by unarmed private security officers. If one is guilty of shoplifting and is confronted by store security, there is a strong temptation to resist or to flee. This is a mistake. Firstly, if the detention is illegal, you have the right to challenge it in court. However, if you resist or run from the private security officers, this is strong evidence of guilt. Also, this sort of dangerous uncooperativeness makes an informal resolution of the case much more unlikely.
Do not make custodial statements to police Once you are turned over to police, you will feel compelled to offer an innocent explanation for this "big mistake." In almost every case, what the defendant thinks is an innocent explanation will turn out to be an admission of guilt. As set forth above, retail theft is committed in a number of ways. Thus, do not talk your way into a conviction. If the police attempt to question you, simply invoke your right to counsel. Once you do so, the law requires that all police questioning cease.
Hire an experienced criminal defense lawyer. As should be clear from the penalty structure set forth above, a charge of retail theft can be a serious criminal offense. You should be represented by counsel, and it should not be your general practice family lawyer. Given the potential consequences, you need to be represented by a criminal defense lawyer who is familiar with pretrial motions challenging the legality of the dention and other matters.
Make restitution. Many times if a person is arrested for shoplifting, this means that he or she did not get away with the merchandise. Under those circumstances, there may not be any restitution due; however, if the police tell you that the merchant is seeking restitution, you should make restitution immediately. Under Wisconsin victim's rights legislation, victims have input on whether charges are amended or dismissed. Once the merchant is made whole, he is much less likely to demand that the district attorney seek a criminal conviction or a jail sentence. Obviously, if you are innocent of the charge, and you intend to take the matter to trial, you should not make a restitution payment, though. If the merchant is a large retail store, there is a likelihood that you will receive a letter from some out-of-state law firm demanding $300 damages. This is a different issue from making restitution. Consult your lawyer about whether you should respond to the letter.
Make sure that you appear in court. Obviously, if the charge is criminal in nature, you must appear in court because if you fail to do so the judge will issue a warrant for your arrest. If you decide to plead guilty, make sure that your lawyer requests that the judge consider expunction if you successfully complete your sentence. If the charge is a municipal ordinance violation, you are not required to appear in court, but if you fail to do so, the judge will find you guilty by default. This, too, is a mistake. Many times, especially in municipal court, the prosecutor will offer the defendant deferred prosecution agreements which may allow you to avoid a conviction altogether. For example, the University of Wisconsin-Milwaukee has a retail theft program which, if completed by the defendant, may allow a city prosecutor to dismiss a shoplifting ticket.
Above all, resist the temptation to steal merchadise from a store. Your chances of being caught are greater now than they ever have been.
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