Retail Theft: Charges, Penalties and Defenses

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 What is Retail Theft?

In a criminal law context, retail theft charges can generally be defined as a crime wherein an individual unlawfully takes possession of, carries away, or transfers any retail goods or merchandise offered for sale by a retail establishment. However, the exact definition of retail theft will vary from state to state. 

Depending on the jurisdiction, a state may incorporate other elements that may satisfy the elements of retail theft. Some other acts that may constitute an instance of retail theft include:

  • Altering, removing, or switching a specific item’s label, tag, or packaging, so that a customer does not end up paying less money than what an object is worth;
  • Manipulating coupons, gift certificates, receipts, and/or other documents for the purposes of compromising either the amount that must be paid to the store or refunded to the customer; and
  • Consuming goods inside a store and then leaving without purchasing those items (e.g., loose candy in a candy store, food in a grocery store, drinks in a convenience store, etc.).

Some states have even enacted statutes that seek to punish and deter organized retail theft rings. In particular, these laws aim to curb crime rings that target retail establishments with the intent to steal items that are then later resold online. 

Is Retail Theft the Same as Shoplifting?

For the most part, the terms “retail theft” and “shoplifting” are basically synonymous and thus are often used interchangeably. However, there are in fact a few significant differences between the two crimes. For one, retail theft may apply to a broad range of theft crimes, whereas shoplifting exclusively applies to a narrow scope of crimes defined by a state statute.

Second, in many jurisdictions, the crime of shoplifting is only intended to cover customers who steal merchandise from a retail establishment. In contrast, retail theft may include both customers and employees who steal from a retail establishment with the intent to deprive them of their merchandise or goods.

Consider the following examples, which demonstrate the discrepancies between these two crimes:

  • Simple shoplifting usually entails pocketing goods from a store, such as a pack of gum or an item of clothing, and then leaving without paying for those items. This crime is typically carried out by a customer, not an employee. 
  • Retail theft, on the other hand, may include stealing anything from a pack of gum to committing a more serious crime like “under-ringing.” Under-ringing refers to the criminal act of manipulating a cash register or some other sales device in order to force it to reflect an amount that is less than the full price of an item. In most cases, this crime is usually committed by a retail employee, but sometimes, it may be perpetrated by both a retail employee and a customer of the establishment. 

What Happens if I am Arrested for Retail Theft?

Depending on the seriousness of the charges, the value of the items stolen, and the laws of the jurisdiction where the crime occurred and is being prosecuted, the case will either settle at the plea deal stage (if there is one). Alternatively, if an agreement cannot be reached, then the case will advance to trial. However, if the case does go to trial, then the prosecutor will be required to prove that the defendant committed retail theft. 

Again, while the elements to prove the crime of retail theft will vary by state, a prosecutor will generally need to demonstrate the following factors beyond a reasonable doubt:

  • That the defendant stole merchandise from a store that was intended for profit;
  • The defendant failed to pay the total retail value of the merchandise (e.g., in part or in full); and
  • The defendant’s failure to pay for that merchandise deprived the store of income they would have received from the sale, along with any other benefits that were destroyed when the defendant gained possession of the item.

If the prosecutor is able to prove the elements of retail theft in accordance with state laws and prevails on the case, the defendant will need to attend a sentencing hearing where they may face a number of different criminal penalties. 

What Are the Penalties for Retail Theft?

As previously mentioned, the penalties for retail theft will depend on the facts of a specific case, the seriousness of the crime, and the laws of the jurisdiction where the case is being decided. Some other factors that the court and/or prosecutor may consider when proposing a punishment include the value of the stolen goods, the defendant’s criminal history, and whether the offense amounts to a felony or is only being charged as a misdemeanor. 

In many instances, if the total value of stolen merchandise is less than $500, then a first-time theft charge will most likely result in a misdemeanor offense and thus the defendant will face less severe criminal penalties if convicted. A defendant who is convicted of misdemeanor retail theft may need to pay criminal fines of up to no more than $1,000, and/or may receive a jail sentence for one year or less. 

In contrast, a defendant who has a prior criminal record and is considered a repeat offender may be charged with the crime of retail theft felony. A defendant who is convicted of retail theft felony charges will face more severe punishments, such as criminal fines that exceed $1,000 and/or a prison sentence for one full year or longer. 

Additionally, if the crime involved theft of an automobile or a firearm, then the defendant will most likely be facing felony charges, regardless of whether the incident was a first-time offense or not. 

Are There any Defenses to Retail Theft?

A defendant who is charged with retail theft may be able to raise several defenses against their charges. As with any case that is primarily governed by state law, the defenses available will largely depend on the circumstances surrounding a specific matter as well as on the laws of the jurisdiction hearing the case. 

In general, some potential defenses to retail theft charges include:

  • Lack of criminal intent;
  • Insanity;
  • Intoxication;
  • Mistake of fact or law;
  • Mistaken identity; and/or
  • Authority or permission to possess the item in question. 

The above list provides the most common examples of defenses raised in retail theft cases. However, there may be many others that are specific to a certain state or the facts of a particular case. 

Thus, a defendant may want to contact a retail theft lawyer in their area to learn more about the potential defenses that may be available to them. A retail theft lawyer may also be able to tailor a custom defensive argument that precisely matches the facts of an individual’s case.

Do I Need to Hire an Attorney for Retail Theft Charges?

As discussed above, the laws on retail theft crimes can vary widely by state and typically result in various penalties that hinge on both the circumstances surrounding a specific case and the laws of particular jurisdiction. Thus, in order to increase your chances of having your charges dropped or receiving a lesser criminal sentence, it may be in your best interest to hire a local criminal defense attorney if you are facing retail theft charges.

An experienced criminal defense attorney will be able to assess the strength of the prosecutor’s evidence and can provide advice about how you may want to proceed based on that analysis. Your lawyer can also discuss the benefits and risks of taking a plea deal, as opposed to going to trial. If you decide to proceed with a trial, however, your lawyer can help you prepare a solid defensive argument and can provide representation in court.

Alternatively, if you opt to take a plea deal instead, your lawyer may also accompany you to those conferences where they can negotiate for a better or fairer agreement on your behalf. 

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