Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-1805 "Shoplifting" occurs when a person enters a shop, and while inside the shop, a person removes goods from the immediate display or any other place within the establishment without paying for the items and with the "intent to deprive" the store of payment. In addition, charging the items to a fictitious person's account constitutes Shoplifting. Also, paying less than the purchase price of the goods by altering the price tag, or transferring the goods from one container to another, or simply concealing the goods all qualify as "Shoplifting". The statute creates a rebuttable presumption that if you conceal the items on yourself or another person, it will be presumed you were intending on stealing the items. If the merchant or his employee has "reasonable cause", they may detain a person in a reasonable manner for a reasonable amount of time for questioning or summonsing of law enforcement. This is called "shopkeepers privilege". A person cannot sue the store if they had reasonable cause (even if they were wrong about whether a person was shoplifting or not).
If the item shoplifted has a value of more than $2000.00 (or the aggregate value during a single criminal episode has a value or more than $2000.00) then the Defendant can be charged with a class five (5) felony. A first offense class five (5) felony carries the punishment of probation with zero (0) days in jail up to one (1) year in jail; or prison of six (6) months to two and one half (2.5) years of incarceration. If the person has one (1) allegeable historical felony prior conviction, then the "prison only" range is one (1) year to three and three quarters (3.75) years of incarceration. If the person has two (2) allegeable historical felony prior convictions then the "prison only" range can is three (3) years to seven and one half (7.5) years of incarceration.
If the value of the item shoplifted is more than $250.00 but less than $2000.00, then the Defendant can be charged with a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical felony prior conviction, then the "prison only" range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical felony prior convictions, then the "prison only" range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
For purpose of the statute a "continuing criminal episode" means theft committed from at least three (3) separate retail establishments within a period of three (3) consecutive days. In addition, if the Defendant has been previously convicted twice within the past five (5) years of Burglary, Shoplifting, Robbery, or Theft and they entered the store with a container or some other device designed to facilitate a Shoplift, then they will be charged with a class four (4) felony. If the person has one (1) allegeable historical prior felony conviction, then the "prison only" range is two and one quarter (2.25) years to seven and one half (7.5) years of incarceration. If the person has two (2) allegeable historical prior felony convictions, then the "prison only" range is six (6) years to fifteen (15) years of incarceration. This particular statute was designed for "professional" or "career" shoplifters.
If the property shoplifted has a value of less than $250.00, then it can be charged as a class one (1) misdemeanor. The range of punishment for a class 1 misdemeanor is anywhere from zero (0) days in jail up to six (6) months in jail and a fine of up to $2500.00 and 80% surcharge. The one exception to the misdemeanor rule is that if the item stolen was a gun (even though it was worth less than $250.00), then it would be charged as a class six (6) felony.
The defense most often seen to Shoplifting is "Lack of Intent". This occurs most often when a shopper has her hands full and momentarily and inadvertently places something in her pocket while juggling other items. This is also seen when the shopper inadvertently walks out of the store while holding the item, completely unaware that they are doing so. It is important to show that the shopper is paying for multiple items that are worth far more than the item alleged to have been stolen. This normally would indicate that the person has the means to pay, therefore, it makes no sense to take one (1) small item while paying for many numerous larger items.
Another defense would involve "Lack of Knowledge". This occurs when somebody else has switched the price tags on an item, or placed a different item in another container without the Defendant's knowledge. It could have been a previous person who was attempting to shoplift but left the store without doing so, and has now left this "problem" behind for somebody else to find. It can also occur when professional shoplifters place stolen items in unsuspecting shoppers bags, only with the intent of "pick-pocketing" those items out of the bag once the unsuspecting shopper gets out of the store. It is important to interview all of the parties present, review all video tapes which may have been in the store, and also point out to the Prosecutor the Defendant's "good character".
The "Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a "Voluntariness" standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, "Denial of Right to Counsel" is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / "cloning hard drive" procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®), with the most Certified Criminal Law Specialists of any AV® rated Arizona Law Firm, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it's lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.
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