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Ohio Shoplifting Law


Please consider

Please consider that even if the facts are against you, having an attorney familiar with the system serves you well.  First, you don't have to present your case to the court.  Second, you had the facts examined.  Finally, there may be options other than a conviction.  Remember that you will likely face a civil lawsuit from the store should you not pay them as required by law.  More about that later.

Please see the "Set it for trial" section below!

The law

Shoplifting is theft.  If charged with misdemeanor shoplifting, the charging paperwork alleges that you "knowingly obtained control" over property.  Did you?

  • Leaving the store

    • Did you exit the store?  Did you pass the front registers?  The law states you must deprive the owner of the property.  If you intended to pay and did not pass the registers or exit the store, the law may not apply.

    • What happens when a subject inside the store hides an item in his or her pocket and is arrested prior to leaving the store?   That becomes the decision of the judge or the jury.  Did that person remove a security tag prior to putting it in his pocket?  Did he or she remove the packaging or price tag?  Intent can be shown prior to leaving the store.

  • Did they have video?  Did you see the video?  Store security can and do lie to obtain a confession.  Once they say they have video, they need to produce that video.  There is no requirement they show you.  Your attorney must force the state to show you that evidence through a process called discovery.  But if you then ask and they make excuses, that becomes part of your case.  Do not cave into unsupported allegations..  Please take a moment to read why your right to remain silent is so important.

Your right to remain silent - click here

  • Where were you stopped?

  • How were you stopped?

  • What did the security guard say?  What did he or she allege?

  • What did you say?  Did you admit?

  • What is the store security guard's name?

  • How crowded was the store?

  • Did you observe anything unusual at the time?

There are may be other questions depending on your set of facts.

Their right to detain

Stores have the right to stop and detain you if they have probable cause to believe a theft occurred and you committed that theft.  ORC Section 2935.041 gives shopkeepers that right.  But their right is limited.  They have to have probable cause.  Further, this law only applies to a merchant employed in a mercantile establishment; it only applies to the shopkeeper or his employees.

  • They cannot search you without your permission.

  • They can not use undue restraint.

  • They can only:

    • Recover their property.

    • Detain you for the real police.

    • Obtain a warrant for your arrest.

Can they come to my house and detain me?

In 2004 shoplifting laws were modified so that the right of the shopkeeper to detain a person is limited to "a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity."  They cannot arrest you at your home.  They do not have the right to force you off the road.  They do not have the right to tackle you if you are not resisting.  They do not have the right to use unnecessary force.  They must be in the vicinity of their store.

When shoplifting becomes robbery

Robbery occurs when force is used during a theft offense.  The shopkeeper who has probable cause to believe a theft occurred has the right to detain you.  Note first that without probable cause, there is no right to detain.

Any force used against the security guard might escalate the theft into a robbery.  Shoplifting property of less than $500.00 is a first degree misdemeanor.  It carries a maximum fine of $1,000.00 and not more than six months in jail.  Robbery involves prison.  If you were shoplifting and were charged with robbery, you need to talk to an attorney as soon as possible.  The actions of the shopkeeper or the guard must be critically examined to determine if they played a part in causing the crime to escalate.

When shoplifting becomes a felony

If more than $500.00 was allegedly stolen, the act becomes a felony.  The prices used by the shopkeeper must be retail prices and cannot include tax.  If an item is on sale, the sale price should be used.

Juveniles

Ohio Revised Code section 3109.09 allows a store to file a civil action against the parents of a juvenile to recover the costs of a theft offense or any damage caused during that theft.  This is limited to $10,000.00.

Civil Recovery

Should a person be stopped, charged or convicted for shoplifting, that person will likely be subject to a shoplifting demand letter.  Ohio Revised Code section 2307.61 allows a store to sue you to obtain damages resulting from a theft offense.

The store can demand from you:

  • Compensatory damages of

    • $50.00 if the value of the theft was under $50.00.

    • $100.00 if the value of the theft was between $50 and $100.

    • $150.00 if the value of the theft was over $150.00.

  • Liquidation damages of whichever is greater of

    • $200.00.

    • Three times the value of the property

  • In addition, if the store makes a proper demand and the person refuses to pay the money, the store can then sue you.  They will likely receive administrative costs and reasonable attorney fees involved in the lawsuit.  This can and will amount to a significant amount of money.

That being said, many counsel to ignore these demands as they are very rarely more than a empty, albeit nasty, demand.  In 2008 the Wall Street Journal did an article on these ploys which is available here and as a PDF here.

My advice?  I have no advice.  If they pursue you in a court of law, they may win and you will be required to defend yourself.  You could be forced to pay both the damage and the much higher legal fees.  Will they pursue?  It appears to be highly unlikely.

You need counsel

You need an attorney to examine the facts and determine if the charges against you are proper.  During my experience as a police officer I saw many shoplifting cases I would have been uncomfortable prosecuting.  For example:

  • A security guard who wants to charge a felony but uses state tax to inflate the dollar amount to get to the felony.

  • A security guard who states he saw a person take property and put it into his pocket.  He stopped the person then refused to see if the person had the property in his pocket.  The person was adamant that he did not steal and turned his pockets inside out.  Nothing was found.

  • Ongoing instances where a person triggered the alarm at the door even though that person paid for the item.

  • Security guards who have a record of robbery charges due to their placing themselves in danger.

  • Prosecuting an elderly, forgetful customer who paid for a good deal of merchandise but forgot a single candy bar which he had mistakenly placed in his pocket.

Even then

Even if the facts are against you, consider the advantage of having someone advocate your case.

The normal shoplifter was rarely a career criminal who makes their life stealing from stores.  The shoplifter was often an employed area resident who exhibited extremely bad judgment.  Those facts must be stressed.  There may be alternatives to a conviction.

For the most part, your attorney will speak for you.  Having examined the facts, he will be able to present what happened, how it happened, your circumstances and other facts in a way that might keep the judge from being as harsh as he or she might be if you simply pled guilty.

The initial consultation is free.  Call me.

SET IT FOR TRIAL!

Many cities have taken a "get tough" stand on shoplifting, especially those with shopping malls.  If the city refuses to discuss a more appropriate charge, it is OFTEN in your best interest to demand a trial to see if the store shows up.  Our Constitution requires that the state prove each and every element of the offense.  If the store does not show, the prosecutor will often request a continuance.  I will object.  I will strongly object.  Even then, the prosecutor will often get his or her continuance.  We will come back a second time and if the store does not appear, the City cannot prove your case.  The case should be dismissed.

Call me!