Protecting Your Rights
Shoplifting is a form of larceny. Shoplifting an item worth $200 or more is grand larceny and so its a felony. Shoplifting an item worth less than $200 is petite larceny and it is a misdemeanor (unless it is a 3rd or subsequent petite larceny, then it is a felony).
Shoplifting is more than just taking something and walking out of the store. Va. Code 18.2-103 defines several alternative forms of shoplifting:
“Whoever, without authority, with the intention of converting goods or merchandise to his own or another’s use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.”
What Va. Code 18.2-103 says is that it is illegal to attempt to steal something by:
- concealing merchandise,
- taking possession of merchandise
- altering a price tags
- Moving merchandise from one packaging to another
- Help someone else do one the crimes mentioned above.
Some of the common ways that people violate Va. Code 18.2-103 include: Hiding merchandise in a bag or under your clothes. Taking something off the shelf and then admitting you were planning on stealing it. Switching the price tags on merchandise. Switching the packaging of a product. Acting as a “look-out” while someone does one of these things.
The value of the item and your prior record determine whether Va. Code 18.2-103 is felony larceny or misdemeanor larceny.
Even though shop lifting is simply a form of larceny, shoplifting comes with its own special laws and legal issues. Consequently, this chapter addresses the many questions people have when they have been charged with shoplifting.
Are Store Employees Allowed To Detain People?
Virginia law Va. Code 18.2-105.1 allows a store employee to detain someone if they have probable cause to believe that the person is shoplifting, concealing merchandize, or altering price tags.
How Can I See the Security Video?
Virginia law does not give a defendant or their attorney a right to see a security video in most situations, but that does not mean your attorney cannot get a copy.
However, some of tactics used to get a copy of a security tape can be fraught with danger. In many shoplifting cases the prosecution never gets a copy of the security camera tapes.
The prosecution typically relies on the store employees to bring a copy of the tapes with them to court and often the employee forgets or loses the tapes.
Additionally, some cases do not require the tapes and some cases do. Sometimes a prosecutor gets to court and then realize that they need the tapes but it is too late to get the tapes.
Attempting to get tapes through a discovery order or subpoena duces tencum can reduce the chance that a prosecutor doesn’t have the tapes at trial.
The best course of action is to consult with an attorney as soon as you are charged with shoplifting and then be as accurate as possible about what you actually did. Once your attorney knows what will be on the tape, they can decide how best to proceed.
But I Never Left The Store.
There are many types of shoplifting that do not require someone to leave the store to be guilty. Altering price tags or hiding merchandise that you plan on stealing is a crime regardless of whether you make it out of the store or not.
What If I offered to Pay for or Return the Items I Stole?
A person is guilty of shoplifting as soon as the crime is committed. Attempting to return or purchase the merchandise after the fact does not change the fact that the crime was committed.
Paying for an item or giving it back can effect whether or not you are ordered to pay restitution for the items stolen and it can affect the judge’s opinion of the defendant but it is not a defense.
My Friend Stole, But I Never Actually Took Anything
It is very common for one person in a group to steal and then all members of the group to be charged with shoplifting.
Helping or aiding a person who is stealing is a crime. Helping can take many forms: Concealing something they took off the self, being a look out, giving encouragement, driving the car to and from.
However, proving that a person aided in shop lifting requires that the court be able to prove that the aid was intentional. You must have known shoplifting was going on to prove that you aided others in shoplifting.
The Store Employee Made Me Sign A Confession?
In Virginia, store loss prevention officers are allowed to detain shoplifters for up to one hour if they have probable cause to believe that the person shoplifted.
During the detention the store employee will often try to get you to sign a confession.
Written confessions and spoken confession are admissible in court as long have a certain degree of reliability, there is some evidence that corroborates the confession and confession does not violate some constitutional right.
If you made a confession (written or spoken) it is very important to tell your attorney who was present, when it happened, what was said and whether you were subjected to coercion.
The Loss Prevention Officer Brought Me Back to the Store
The law allows store employees to detain someone for up to an hour while they wait for the police to arrive. This law does not give the store employee the right to force someone to return to the store.
I Was Detained More Than One Hour.
The law in Virginia allows a store employee to detain a shoplifter for up to one hour, pending the arrival of the police.
If the store employee detains someone and does not then immediately call the police or if the store employee detains them for more than one hour, they are in violation of this law.
The Store Employee Used Violence or Intimidation
Store employees cannot use unreasonable force to detain a shoplifter. First they must have probable cause that someone was shoplifting and then they must use only an appropriate level of force to detain them.
If a store employee uses unnecessary force or force that is solely intended to humiliate or hurt that is a violation of the law.
Excessive intimidation tactics can also affect a case. If a store employee uses violence and sever intimidation tactics to extract confession that may affect the validity of that confession.
The Store Employee Made Me Sign A Promise to Pay Them Money?
Under Virginia law Va. Code 18.2-104.1 store owners are allowed to sue shoplifters. The stores are entitled to compensation for any goods they did not get back or that they were not able to resell.
Stores are also allowed to sure people to recover the cost of prosecuting the shoplifter. However, the cost of prosecution should not exceed $250.
Often, stores will try to get shoplifters to sign contracts, agreeing to pay this money, while the shoplifter is detained at the store.
If you were asked to sign one of these agreements or if you did sign one of these agreements, talk to an attorney. These contracts may or may not be enforceable.
They Told Me Everything Will Be Ok If I Admitted to Stealing.
Some, loss prevention officers will make promises in order to get people to make confessions. These fairytale promises that everything will be ok if you just tell us are obvious lies.
While such lies do not automatically make a confession inadmissible, they do cast a shadow on the credibility of the witness. If a person is willing to lie to get a confession are they willing to lie on the stand to get a conviction?
Whether such a lie is enough to help your case depends on many factors, so talk to your attorney is the store employees lied to you.
All I did was change the price tag.
Altering price tags is illegal, but only if the alteration was do with the intent of stealing the item. Altered price tags by themselves may not necessarily be enough to convict.
The shopper must do or say something that demonstrates that their purpose in altering the price tags was to steal or commit a fraud.
If you are accused of this crime it is extremely important to tell your attorney as much detail about what happened so that they can determine whether there is enough evidence to convict.
Will I Go To Jail?
Many factors determine whether you go to jail. In some jurisdictions, prosecutors and judges sentence almost everyone found guilty of stealing to at least one day in jail. In other jurisdictions, the courts are much more lenient.
If you want your attorney to give you an accurate prediction regarding your likely sentence, make sure you explain your entire criminal record and as many factors about the case as you can remember.
How Long Does Shoplifting Stay on My Record?
All adult criminal convictions in Virginia stay on your criminal record forever. There are no expungements for adult criminal convictions in Virginia.
For juveniles, a misdemeanor conviction is destroy when the defendant reaches 19 years old or after 5 years. Whichever is longer.
A juvenile offense that affects your DMV record stays on your record until you are 29 years old. And a juvenile felony conviction never disappears.
If an adult or juvenile beats the charges against them, an expungement is possible.
Shoplifting Can Result in Deportation.
If you are not a US citizen shoplifting can result in your deportation from the United States. In this situation, whether you are charged with misdemeanor or felony shoplifting can affect the odds of being deported.
Restitution and “NO TRESPASSING”
If you are convicted of shoplifting, most judges will order than you pay the store for any lost or damaged merchandise.
Restitution orders can take the form of a payment plan or a flat fee with a deadline. If there is going to be a restitution payment, you and your attorney and the judge must sign restitution plan and submit it to the judge on the day of your sentencing hearing or trial.
Additionally, most judges will order that you do not set foot in that store again. Violating this order can result in jail time in many instances.
Alternative Punishments For Shoplifting
In some of the jurisdictions of Virginia there are programs for people with good records who are guilty of certain shoplifting and theft offenses.
These programs are all slightly different depending on the jurisdiction. However, most of these programs involve an Suspended Imposition of Sentence (SIS).
An SIS is where a Defendant pleads guilty or loses at trial. But before the judge declares that the defendant is guilty, the judge continues the court date to a day far in the future.
The judge then orders that the Defendant do certain things: community service, stay out of trouble, complete a class, pay restitution, and/or pay court costs.
If the Defendant completes all of these requirements prior to the new court date then the judge will dismiss case or reduce the punishment.
An SIS is usually preferable to an actual conviction but not as good as a normal dismissal. On some applications employers or institutions will demand that applicants disclose an SIS the same way that they disclose criminal convictions.
In order to know whether your jurisdiction has a first offender program and whether you would qualify for such a program, talk to a shoplifting defense attorney.