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If you’ve been charged with a shoplifting crime, the authorities will try to make you believe that there’s nothing you can do. They will tell you that you’ve been caught “red-handed,” and that just going along with the charge is your best option.

This is not true. Remember that the authorities have a constitutional obligation to assume you are innocent until proven guilty, not the other way around. It is the prosecution’s job to prove beyond a reasonable doubt that you committed this crime. You have the right to be defended in court and to argue your innocence. No matter the circumstances of your arrest, evidence can be challenged, and innocence can be argued.

Shoplifting Law

Instead of lying down and accepting your charge, ask yourself: What, exactly, is shoplifting? The legal answer is more complicated than most people realize. It’s important to know exactly what you’re being accused of doing, so you can begin to consider how to argue against it.

One important aspect of a shoplifting accusation is concealment. The charge involves someone hiding an item out of sight from the retail staff, so they can leave with it. Another legal requirement of the charge is that the accused had no intention of returning the property. Shoplifting involves stealing something and keeping it for yourself.

Virginia’s Shoplifting Penalties

The state is hard on shoplifters. There are no “minor” shoplifting charges, no matter how cheap the stolen item was.

Virginia has four classes of misdemeanor. Class 4 is the lowest level, and Class 1 is the most severe. Shoplifting charges begin as a Class 1 misdemeanor in Virginia. Stealing a 50-cent item from a Walmart could land a person in jail for a year with a fine of $2,500. The state wants to send a message and disincentivize shoplifting as much as it can. Any item valued under $200 can cause someone to be penalized this harshly.

If the stolen item was worth more than $200, the charges and penalties climb even higher. Shoplifting merchandise at a value of $200+ is a felony. Incarceration can take place in prison, not jail. You could serve a sentence of 1 to 20 years. Fortunately, Virginia does give judges leeway to be lenient on a felony shoplifting charge. At the judge or jury’s discretion, convicted parties may be sentenced as if the crime were a misdemeanor, with jail time and fines.

Defenses Against a Shoplifting Charge

Challenge Intent

Above, we discussed how the prosecution must prove that you intended to conceal an item, and you intended to keep it. These actions are crucial to the prosecution’s case. Even if you concealed an item, did you mean to? Even if you left the store with the item, did you do so intentionally? The police and the prosecution cannot read your mind. You may be able to demonstrate that even if you did hide an item and walk out with it, you didn’t mean to.

You Took the Item by Accident

Life is distracting, and it’s easy to forget things. Imagine a single mother at the grocery store with her three kids. They’re misbehaving, and she’s so busy managing them, she forgets about the item she stuck in her back pocket. Think of the person who is trying on clothes in the changing room. They like the shirt they’ve tried on, and they pop out quickly to grab the same shirt in another color. Suddenly, they see something else that grabs their attention. In all this activity, they forget about the shirt they’re wearing, and walk out wearing it.

Situations like these happen every day. It’s easy to go home and unload your groceries only to realize you didn’t pay for one of the items in your bag. Prosecution must prove your intent to steal. If you paid for everything else in the shopping cart, you could easily argue that leaving with one unpaid item was an accident.

You Intended to Bring the Item Back

Let’s say an accident did occur. You left the store with something in your back pocket, forgetting you had it there. As you get to your car, you feel it in your pocket, realizing what happened. You’re just about to walk back to either pay or put it back when you’re stopped by security. In this situation, you may be able to show the court that you had every intention of brining the item back to the store.

Challenge Concealment

Was the item in question actually concealed? If you were holding it out in the open while leaving the store, you could argue that you weren’t shoplifting. Technicalities like these matter in a court of law. You could even use this scenario to argue an accident. It would be foolish, you could claim, for you to simply walk out, holding stolen merchandise. You were likely unaware that you were even holding it.

Challenge Evidence

Increasingly, lawyers and scholars are finding flaws in evidence methodology. Evidence that was once considered air-tight is now being questioned for its validity. Even DNA evidence, once thought to be impenetrable, is being challenged as unreliable.

If the only evidence the police have is security camera footage, can they really rely on that footage? Maybe they have video of someone putting something inside their long coat. Is it possible that, on a cold day, many people in the store were wearing long coats? Security cameras often have diagonal angles and poor resolution. If someone’s face isn’t clear, how can the police be sure they have the right suspect? You should always ask your lawyer to examine and question any evidence the police have. Poor, unreliable evidence is no justification for putting someone in jail.

Challenge Eyewitnesses

Just as evidence is unreliable, so are eyewitnesses. Who, exactly, saw you take the item? Did they get a good look at you? How many other people in the store looked like you? Just because police are given a description, they can’t be certain they have the right person. There may have been many people in the store who look like you.

Once your lawyer starts to investigate witness statements, they will be able to find inconsistencies and cross examine the testimony. The mind is fallible, and your lawyer can help expose that fact.

If you’re facing a shoplifting charge, call me today at (540) 386-0204, or contact me online. I am here to defend Virginians in court, and I will work hard to preserve your freedom.