SHOPLIFTING

SHOPLIFTING

Shoplifting laws in Arizona are outlined in A.R.S. 13-1805, which states that a person commits shoplifting if they knowingly take goods from another “with the intent to deprive that person.”

There are five ways in which this can happen:

  • Taking goods without paying for them;

  • Taking goods by charging someone without their permission;

  • Paying less than the purchase price by altering price tags or labels;

  • Transferring goods from “one container to another”;

  • Concealing goods;

This statute also states that if the person knowingly conceals goods on himself/herself or another person, or if he or she uses an instrument for concealment, they are mentally aware enough of their actions to be subject to the statute’s terms. In other words, the statute contains a rebuttable presumption of intent if the person either uses an instrument, or engages in concealment.

Although there are conflicting views regarding what stores can do when approaching suspected shoplifters, A.R.S. 13-1805 states that any employee can detain someone in a reasonable way in order to question them or wait for law enforcement officials to arrive.

The statutes also outline the civil actions stores can take against alleged shoplifters – juveniles and adults – who injure employees during the shoplifting process.

Penalties for Shoplifting in Arizona

The State can charge an alleged shoplifting defendant with a misdemeanor, or a felony. A.R.S. 13-1805 provides that the value of the item dictates what can be charged.

Misdemeanor Shoplifting

Shoplifting any property less than $1,000 is a class 1 misdemeanor. A misdemeanor may be punished up to six months in the county jail, and a fine up to $2500 plus surcharges. A.R.S. 13-707 and 13-802.

Misdemeanor Deferred Judgment or Diversion

For first time offenders, jail is uncommon if the item taken is of low value. For certain misdemeanors, courts have the discretion to offer diversion or deferred judgment programs that afford an opportunity to avoid a criminal conviction. Diversion allows charges to be dismissed upon successful completion of a program; it typically entails probation, classes, community service, and fines. The cost of the diversion program is assessed to the defendant.

Felony Shoplifting

Shoplifting any property valued between $1,000 and $2,000 is a class 6 felony. However, shoplifting firearms, even if they are valued at less than $1,000, is a class 6 felony.

Penalties for a class 6 felony conviction can include probation and up to one year in jail, or between 4 months and 2 years in prison. This prison length range increases to 1 and 3.75 years with one prior felony conviction, and between 3 and 7.5 years for those with two previous felony convictions.

Shoplifting property over $2,000 is class 5 felony.

Penalties for a class 5 felony conviction can include probation and up to one year in jail, or between 6 months and 2.5 years in prison. This prison time extends up to 3.75 years for those with one prior felony conviction, and between 3 and 7.5 years for those with two previous felony convictions.

Additionally, any shoplifting of property done during a “continuing criminal episode,” or any shoplifting done in promotion or assistance of a street gang or crime

syndicate is a class 5 felony. The statute defines “continuing criminal episode” as three or more instances of theft in a 90-day time period where the property taken was valued at $1,500 or more each time.

Finally, shoplifting with the use of an instrument or device is a class 4 felony. Shoplifting with two or more similar convictions (burglary, theft, robbery, shoplifting or retail theft) within the past five years will also result in a class 4 felony.

Penalties for a class 4 felony can include probation, up to one year in jail or between 1 and 3.75 years in prison. With one prior felony conviction, this prison range increases to 2.25 and 7.75 years; with two prior felony convictions, the range increases to 6 and 15 years.

Juvenile Shoplifting in Arizona

While the penalties above refer to adults who are charged with shoplifting, we also handle many juvenile shoplifting cases.

Juvenile shoplifting cases are unique because of the emphasis on rehabilitation over incarceration.

Jury trial

Defendants are always entitled to a jury trial in shoplifting cases.

Arizona’s Shopkeeper’s Privilege

Store owners, and their employees, with reasonable cause, may detain suspected shoplifters in a reasonable manner, and for a reasonable time, in order to question them and summon the police. Constitutional issues do not typically apply to the actions of store employees; however, if they are acting under the direction of law enforcement, constitutional protections do apply.

Trespass on store property

Many stores have trespass forms that advise suspected shoplifters that they have trespassed on the property. Suspected shoplifters should take these serious. If you return to a store after being asked to not come back, the police may be summoned, and you will likely be arrested for criminal

trespass. Regardless of an investigation’s outcome, it is advisable to never return to that store.

Civil Liability to Stores per A.R.S. § 12-691 and A.R.S. § 12-692.

In addition to criminal penalties, shoplifters face potential civil law suits filed by the store. Shoplifting suspects often receive template mail from national law firms threating to file a lawsuit under Arizona’s shoplifting law. In most cases, the store’s attorneys rarely go forward in filing a lawsuit—they are usually empty threats. Before responding to these letters, it is best to consult with an experienced criminal defense attorney; responding to these letters may have negative legal implications—both civilly and criminally. In addition, in cases where merchandise was not fully recovered by the store, convicted shoplifters are responsible in paying back the store as part of their criminal sentence.

THE LAW ON CIVIL LIABILITY FOR SHOPLIFTING

A shoplifter is civilly liable to the store for a penalty in the amount of the retail value of obtained goods, plus an additional penalty of $250, plus the actual damages to the store. The parents or legal guardians of a shoplifting minor are civilly liable to the store for a penalty in the amount of the retail value of the obtained goods, plus an additional penalty of $100, plus the

actual damages to the store.

COMMON DEFENSES IN SHOPLIFTING CASES

Lack of Criminal Intent: Arizona shoplifting law requires that you intend to permanently deprive the owner of merchandise. Without proving that intent, you cannot be convicted. For instance, if you forget to pay for items, but purchased other items, the State would have to prove that you specifically intended to steal the items you forgot about. In other instances, you may have forgotten about an item in your purse or pocket. In some cases, you might simply forget to pay for something.

Lack of Knowledge or Mistake of Fact: You might not pay the full price of merchandise where another person adjusted or switched a price tag, or switched the contents of packaging. A defendant should not be held criminal liable for such a mistake.

Lack of Motive: Financial ability to pay for items, good character, and previous or contemporaneous purchases can all show the absurdity of a shoplifting allegation. In raising this defense, we typically present evidence that a client has no prior history of shoplifting or clearly had the ability to pay. This shows that the suspected activity was an accident and nothing more.

Unknowingly Passing a Point of Purchase. Suspected shoplifters will often be stopped by store employees simply for passing a register. With stores increasingly moving to automated check-outs and streamlined payment options, these types of mistakes are reasonable and increasingly common.

Value Defense: The prosecutor must prove the value of merchandise beyond a reasonable doubt. This defense is especially applicable to felony allegations where there is a threshold value of either $1,000 or $2,000. In can also be applicable in negotiations when a prosecuting agency sets a value in plea agreements. Finally, it may be a defense if the merchandise in question has no apparent value at all.

Constitutional Violations: Miranda, coerced confessions, unlawful detainment or seizure, lack of probable cause or reasonable suspicion, are common constitutional issues that arise in shoplifting cases. If there is any constitutional violation at the behest of law enforcement, motions may be filed in an effort to suppress evidence and dismiss charges.

For further information, or questions about Shoplifting, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.