September 28, 2023
Shoplifting is something that happens all the time in this country and costs retailers billions every year. In large part because of this, it is something that retailers and the justice system take very seriously. This is particularly true in recent years, as more and more businesses have been deciding to prosecute when shoplifters are caught.
A shoplifting charge can be very serious, carrying hefty penalties if convicted, and leaving you with a criminal record that will haunt you for the rest of your life. If you are facing a shoplifting charge, contact a Denver defense attorney to make sure your rights are protected and so you can start building the strongest possible defense for your case.
How Shoplifting Is Charged in Denver
In Colorado, if you are charged with shoplifting, you will be charged with theft. However, shoplifting, or retail theft, is generally charged as a misdemeanor or low-level felony, depending upon the value of the items in question and other factors such as prior convictions or the possession of tools used to aid in the shoplifting crime.
If the defendant possesses any tools – for example nail clippers or a pocket knife to remove tags from merchandise – he or she could be charged with a Class 5 felony. These are considered burglary tools, and lead to enhanced sentencing under Statute 18-4-205. This is a very serious enhancement.
Moreover, regardless of the level of offense, a shoplifting charge still leaves you with a permanent criminal record that will haunt you forever. This can impact college admissions, employment, military prospects, loans, housing, and more.
Strategies You Can Use to Battle Your Shoplifting Charge
Challenge the evidence of shoplifting. Businesses and prosecutors alike have increased efforts to catch and prosecute shoplifters. Although this is understandable, it also means that sometimes people are wrongfully accused. Shoplifting may be prosecuted too hastily, without sufficient evidence.
For a successful shoplifting conviction, the prosecution must prove that the defendant:
- Was witnessed approaching the item while in the store
- Physically handled the item
- Carried the item away and/or concealed it
- Was continuously seen by a staff member or other witness from the time he/she approached the item until leaving the store without paying for it
- Neglected to pay for the item
- Was approached outside of the store, not while still inside
A good defense attorney can look into each element of this in a retail theft case and potentially find ways to bring these things into question. This can lead to an acquittal, or to charges being dropped or reduced.
Challenge the assumption of intent. Shoplifting includes two elements:
(i) the intentional concealment or possession of merchandise offered for sale, and
(ii) the intent to permanently deprive the merchant of the merchandise without paying for it.
For both elements, the defendant’s intent is central to securing a conviction. Depending upon the circumstances, a defense attorney may be able to cast reasonable doubt on the intent, arguing that the client may not have meant to shoplift.
For example, the client may have inadvertently forgotten to pay, and would have tried to return the item upon realizing the mistake.
Plea bargaining and diversion programs. In many shoplifting cases, plea bargaining may be the most effective approach, especially for first-time or minor offenses. Frequently, store surveillance footage or other pieces of evidence at the time of detainment provide ample evidence that shoplifting occurred, and perhaps that the intent was to shoplift. In these cases, attempting to have the charges dropped or reduced by prosecution or potentially convincing the merchant not to prosecute may lead to the best outcome.
Further, shoplifting is also strongly correlated to mental illnesses such as depression and anxiety disorders, as the act of shoplifting provides a “rush” of dopamine that temporarily makes people happier. This can even become addictive, meaning that shoplifting becomes a chronic habit. Kleptomania, which is the compulsive urge to take things that are not one’s own, may be related to these issues.
If you have any history of mental illness or have seen a therapist or counselor for any reason, be sure to inform your defense attorney, as this can be used in your defense. Arguing that you literally could not help yourself may be very helpful in plea bargaining and potentially in getting charges dropped.
Pretrial diversion programs may also be an option for first-time or low-level offenders. These programs are intended to rehabilitate offenders, preventing the commission of future offenses. If the defendant completes the requirements of the program, which often include seeking treatment for underlying mental disorders, paying restitution and performing community service, criminal charges are dropped.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.