Shoplifting and Theft Defenses

Arrested for shoplifting?  What do you do if you didn’t mean to steal?

 

Please click to play the audio:

 

Transcript:

 

Hi – This is Orange County Defense attorney Joe Dane. I’ve posted many articles, podcasts and videos about theft and shoplifting allegations, but today, I’m going to talk specifically about defenses to shoplifting charges.

First, all theft crimes require a specific intent. By that, I mean that the prosecution must prove that you had a certain specific intent at the time you took the property. They must be able to prove beyond a reasonable doubt that you intended to steal the merchandise.

That leads me to a first possible defense – accident.

Things happen. Your kids distract you…. you’re on your cell phone… you’ve got your arms full of items you’re considering – some you want, some to return… Any number of scenarios could distract you to the point you don’t realize you’ve got merchandise you haven’t paid for as you step out. Many stores – but not all – have surveillance videos throughout the store and especially at the entrances. Assuming the police book the video into evidence, we are entitled to get a copy to try and show that this was an accident.

In a theft case, there must be taking of property with that intent I was just talking about and there must be a “carrying away” or “taking”. That means that they must prove that you did in fact have the intent to steal and you actually gained control of that property. Typically, the store personnel will stop you once you’ve exited the store. They assume that once you’ve stepped out of the store, there is no intention to pay for the things you have with you.

But… there are some situations where that doesn’t apply. Some stores have outdoor garden departments that still also have cash registers where you can pay for merchandise. I remember one case I had from a large department store in a mall – just outside the store in the mall was an escalator. My client had some clothing and wanted to go downstairs to continue shopping. She saw the escalator and without a second thought, walked out into the mall to take the escalator downstairs and back into the same department store. Once I pointed this out to the DA – and the video from the store showed that she wasn’t looking around suspiciously as she exited or anything – the case was dismissed. We were able to show the prosecutor that my client had absolutely no intent to steal and this was an honest mistake.

If you have been arrested for shoplifting or petty theft in Orange County, give me a call. Let’s discuss your case and see what defenses or other options you may have to try and avoid a conviction for theft. My phone number is 714 532 3600 and you can reach me by email at joe@joedane.com.

There are some additional links below to other articles about shoplifting and civil demand letters.

 

714.532.3600

 

Joe Dane, Orange County Defense Attorney

joe@joedane.com

Shoplifting – Civil Demand Letters

Is Petty Theft a Big Deal?

Shoplifting and Loss Prevention Officers

 

The police didn’t read me my rights! Now what? Miranda and the law

What happens if the police didn’t read you your rights?  Can your entire case be thrown out or dismissed?

 

Please click to play audio (approximately 4 minutes):

 

 

Transcript of audio:

 

Hi – it’s Orange County defense attorney Joe Dane.

 

Today, I’m going to talk about one of the most frequent complaints people have when they get arrested, and that is that “The officer never read them their rights – their Miranda rights” and follow up question is always, “Does this mean my case is gonna be thrown out?”

 

Well, let’s start off and talk about what the Miranda rights are and what can and can’t happen in your criminal case. First of all, the Miranda rights have been around for years. In 1966, the US Supreme Court came out with the famous Miranda decision which now requires peace officers to give people their rights when they’re arrested and being subject to questioning.

 

The Miranda rights are actually two different rights. The first is the Fifth Amendment right and that’s your right to remain silent or not become a witness against yourself and the other one is from the Sixth Amendment and that is your right to attorney at all critical stages of the proceedings, including police interrogation. Those are the rights that come from the Constitution and the Miranda warnings (or the Miranda advisement) comes into play if you are in custody and being subject to interrogation. Both of those things at the same time have to exist before the police are required to give you your rights. Both in custody and being questioned.

 

Custody is the functional equivalent of an arrest or a formal arrest. If they put the cuffs on you and tell you you’re under arrest, there’s no question you’re in custody. The second part is interrogation. They have to be asking you direct questions about the crime you’re suspected of or arrested for for it to be interrogation. Both of those at the same time.

 

This isn’t like TV or the movies – you’ll see, you know, detectives running down the street chasing after somebody. They’ll tackle them and as they’re putting the handcuffs on, one or the other of the partners will start reading the guy their rights. It’s not like that. In fact, there are many cases where the Miranda rights never come into play because after arrest, the individual is never questioned about the crime.

It’s if you’re arrested and being questioned – that’s when they have to give Miranda rights.

 

The most important thing about that though, is when Miranda rights are not required to be given. If you’re not in custody, they don’t have to give your rights. The best example of not being in custody but being temporarily detained is like a traffic stop. If the police pull you over for whatever violation and they start questioning you and let’s say they smell alcohol, for example. If they ask you questions like, “Have you been drinking?” If you say yes, you have absolutely incriminated yourself under the Fifth Amendment. But because you’re only being detained and you’re not formally arrested at that point, they don’t have to read you your rights and that statement that you make out on the side of the road is perfectly admissible against you. That applies to just about every sort of police investigation. If they are just doing general investigation questions of you but you’re not formally “in custody,” Miranda rights don’t come into play.

 

If there is a Miranda violation, for example you were in custody and you were being interrogated but the police didn’t read your rights; or if the Miranda rights weren’t given properly, or the waivers weren’t correct or something like that, what’s the remedy? I know a lot of people think that the entire case thrown out, but that’s not the situation. The remedy, if there is a Miranda violation, is the statement that’s taken in violation of Miranda is excluded. It’s not excluded necessarily for all purposes, but the prosecution can’t use it in their case against you to try and convict you.

 

Miranda situations, like many aspects the law, are very fact-dependent though – whether or not you are actually in custody… whether or not the way the police ask you questions or read you your rights was proper… whether the statement itself is coercive… the entire context has to be reviewed. If you have been arrested here in Orange County and you want to talk about your case, give me a call my phone number is 714) 532-3600 or send me an email: joe@joedane.com. The links are below.

 

Joe Dane, Orange County Defense Attorney

714.532.3600

joe@joedane.com

Shoplifting and Civil Demand letters – Audio Podcast

Please click to play:

 

Transcript of audio:

Hi. This is Orange County defense attorney Joe Dane.   Today I’m going to talk about shoplifting and civil demand letters.

 

If you were detained or accused of shoplifting in a store, one of two things may have happened: They could have called the police. If you were arrested or cited to appear in court based on a theft or shoplifting charge, you need to absolutely contact a criminal defense attorney to discuss your options and get representation in court. The other thing is – the store personnel may not have called the police, they may have said “We’ll let you go, but you have to pay a ‘fine’ to the store.”

 

Well, it really isn’t a fine – it’s a civil demand letter.

 

Penal Code section 490.5 allows a merchant either directly or through a law firm to send out these civil demand letters and demand up to $500 in a shoplifting incident. The letters sound very intimidating. They come from law firms on letterhead. They talk about paying immediately to avoid further legal action and pursuing their rights and things like that, and they’re designed to intimidate. The big question though is: do you actually have to pay what they’re asking for? Legally speaking, there’s no obligation to pay that – it’s just a letter. It’s like if I sent you a letter and said, “Hey, send me $500.” There’s no legal obligation to send that. It’s not a debt that you owe and it’s not a judgment that has to be paid. It is a demand letter. They are demanding that you pay them money.

 

So what happens if you don’t pay it? The law says they’re allowed to sue you in Small Claims court. But in California, lawyers can’t be involved in small claims cases, so they would have to go through the store personnel to go to court and put on testimony to prove that you owe them anything.

 

Typically, that merchandise is recovered and put right back on the shelf to be resold to the next customer, so the store hasn’t suffered a financial loss and the only thing they would be suing you for is the cost of investigation which typically couldn’t be more than a couple hundred bucks. It’s just not worth their time.

 

In almost 18 years of practicing law plus my time to as a Deputy Sheriff and participating in statewide and nationwide forums for other defense attorneys, I’ve never actually spoken to someone whose client has been sued for ignoring the civil demand letter. So if you ignore that letter, they may send a second one. The dollar amount they are asking for may go up. It may contain a little bit more threatening language. If they have your phone number, they might call you. If you continue to ignore them though, ultimately they have to make a choice: let it go or sue you in small claims. Like I said, I never heard it happening. I suppose it could, but I’ve never heard of it actually happening because somebody ignored the civil demand letter. Typically, they just let it go.

 

What happens if you do pay them? Does that make things somehow better? Well, if you do pay their civil demand letter, hopefully they’ll send you a release which indicates that they’re not going to sue you in small claims – something they wouldn’t do anyway – but they’ll give you a letter saying, “Okay now we’re not going to sue you,” but it will not do anything to any criminal investigation or criminal cases. Paying it will not stop prosecution in the criminal courts. The other side is true though – not paying it doesn’t mean the police will become involved if they weren’t, so if you ignore it, it doesn’t mean that suddenly they’re going to rush off to the police and file a report and have you criminally charged – they can’t do that.

 

Typically, if you’re going to be charged with a crime, it is because the police were involved on the day they accused you of shoplifting and you would have been contacted right then and there by the police. So paying it doesn’t stop anything to do with the criminal prosecution, it just stops something from happening in Small Claims Court that was never going to happen the first place.

 

If you were arrested or cited and you have to appear in criminal court in Orange County or Southern California, give me a call. My phone number is 714-532-3600 or send me an email: joe@joedane.com. The contact links and information is below. I hope this helps, and if you have questions about the civil demand letter, talk to your attorney or contact me.

 

Good luck.

 

Joe Dane, Orange County Defense Attorney

714.532.3600

info@joedane.com

Bringing drugs into the jail (Penal Code 4573)

Simple possession + being arrested = Felony drug charges?!?

 

After the passage of Proposition 47 in November, 2014, simple possession of drugs for personal use is now a misdemeanor charge. But there’s a way for those drugs for personal use can still be charged against you as a felony.  Penal Code section 4573, smuggling drugs or alcohol into a jail, is a felony drug charge that was not affected by Proposition 47.  It’s a felony that cannot be reduced to a misdemeanor ever.

Here’s the scenario:  You get arrested for any reason.  The officers do a pat-down search just to make sure you don’t have any weapons.  No weapons?  You’re transported to jail. At the jail are the large signs warning a person that they are now entering a custody facility and that bringing drugs in is a felony charge.  Either you don’t see the signs or you decide to exercise your Fifth Amendment right to remain silent and say nothing.  Then, inside the jail facility, the officers do a complete search and find your drugs.  You’re now charged with a felony for smuggling drugs into a custody facility.  A felony that cannot be reduced to a misdemeanor and carries up to 4 years in custody.  It’s also not eligible for drug diversion or other treatment options.

 

Seem fair?

 

Your right to silence vs. protecting yourself

Ordinarily, in almost every circumstance, the single most given advice by criminal defense attorneys is to never talk to the police.  Any statement you make can and will be used against you.  So who in their right mind would advise anyone to admit they had drugs?  Well, this might be that very limited time.  If you speak up and tell them you’re holding a controlled substance for personal use BEFORE they take you into the jail facility, you’ve got a strong argument that you had absolutely NO intent to break that law and actively tried to stop it.  Dealing with a misdemeanor drug charge is much better than having to deal with a felony.

 

You got charged with Penal Code 4573 – now what?

If you were arrested and this scenario happened to you – being charged with “smuggling drugs” into a jail, give me a call.  I’ve been practicing criminal law since 1996, I teach search and seizure law at a police academy and can fight for your rights.

Joe Dane, Orange County Criminal Defense Attorney

714.532.3600

info@joedane.com

DUI Patrols and checkpoints – Super Bowl weekend Sunday 2015

Increased DUI patrols for Super Bowl weekend in Orange County

Like with every major holiday, big sporting events like the Super Bowl trigger increased DUI patrols. This year, the 2015 Super Bowl XLIX is no different.

This year, the Orange County Sheriff’s Department is initiating their campaign – “Fans Don’t Let Fans Drive Drunk”.  Instead of DUI checkpoints being announced, they will be conducting “roving patrols” in areas they have identified as high DUI frequency areas.  What does that mean?  They will add extra patrol units to cruise around and look for traffic violations and reasons to stop cars to investigate.  Remember – any traffic violation, no matter how small is enough for them to pull you over and detain you.  If they smell alcohol or if you admit to drinking, you could find yourself the target of a DUI investigation.

Keep your rights in mind if you’re stopped.

Just because you’re stopped by the police doesn’t mean you have to talk.  Specifically in a DUI investigation, any statement you make can come back to haunt you.  Even though they are not required to read you your Miranda rights during a traffic stop (detention), you still have the Fifth Amendment right to remain silent.

Same thing with field sobriety tests (FSTs)

If asked to perform roadside sobriety tests, they are NOT mandatory.  I’ve written an extensive article about that posted on the Forbes website:  What should you do if you get pulled over for Drunk Driving in California?

 

Obviously, the safest route is to not drink and drive.  Taxis, Uber and Lyft are all ultimately cheaper than a DUI arrest or conviction.  Sometimes, people misjudge their ability to drive and find themselves getting pulled over and investigated for DUI.

 

If you are arrested, you only have 10 days to contest an automatic suspension of your license by the DMV.  Give me a call so we can discuss your case and protect your license.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714.532.3600