Kevin Kohlert
Welcome to episode five of the Kelly & Kelly Law Podcast. I’m Kevin from Borealis Digital Marketing, and as part of our ongoing legal education series, I’ll be sitting down with attorney Mike Kelly, head of the Criminal Defense Department at Kelly & Kelly, PC.
How are you doing, Mike?
Mike Kelly
Good, Kevin, good to see you. Thanks for having me on again.
Kevin
Likewise, thanks for making time. Today’s topic is theft and retail fraud, or what many people refer, casually refer to as shoplifting. I feel there’s a lot of confusion surrounding retail fraud. It goes by many names, different theft offenses, theft, larceny, shoplifting, et cetera, et cetera.
So I want to get your legal expertise to shed some light on this. And I guess let’s just start by defining it. What is retail fraud? Particularly in the state of Michigan?
Mike
Yeah, thanks, Kevin. So most offenses that are considered retail fraud fall under that basic shoplifting terminology. And really in Michigan, it’s divided up in consequence by the dollar amount that’s involved in the offense. So for example, if you’re involved in a theft from a store, a building, a place that’s open for business, this is different than if you break into the store at night.
So that’s one of the elements. Was the business open to the general public? The second criteria is were there items offered for sale in that business? And the third, did you take those items or conceal them or manipulate the item or what we call price tag swapping sometimes, did you change the quality of the item some way with the purpose and intention of permanently depriving ownership of that item from the business that offered them for sale?
So I just listed a couple of ways. It’s not so simple as you just, you take this pen and you put it in your pocket and you walk out. Sometimes what people do is they switch the price tag from one item that may be more expensive, put a price tag of lesser value on that item. They conceal it, they put the clothing garment on and walk onto the store. The element for permanent deprivation of ownership occurs when you pass all points of purchase. Meaning when you’ve walked past the cash register, you’ve walked through the security gate or whatever, you walked out the front door. That is your last chance when you walk out those front doors to say, “oh shoot, I forgot, I wanted to pay for this. I just forgot”, turn back and make an effort to pay.
If you keep walking, you walk out those stores, that’s that final element for the permanent deprivation of ownership that the store is looking for. And then what they’re gonna focus on from there is the dollar amount of those items involved. If the dollar amount is under $200, you’re looking at third degree retail fraud. This is a misdemeanor offense, punishable up to 93 days in jail or up to a $500 fine. If the dollar amount is between 200 to $1,000, you’re looking at second degree retail fraud, still a misdemeanor offense, much more serious and probably a steeper penalty from the court. And then more than that, if you’re over $1,000 or more of goods that are offered for sale, and that’s, I mean, the value of it is $1,000 or more, that’s first degree, now you’re getting into a felony range.
So we start with the lowest level being a misdemeanor and it can go all the way up to a felony.
Kevin
Well, these are important distinctions. I know it also is referred to as petty theft and that’s interesting with how at night, I guess that would be more of breaking and entering if it wasn’t open for business. So those are interesting distinctions. What happens after, let’s say like an adolescent offender was stole like a pack of gum or something, what happens after they’re caught?
Mike
So there’s a couple of different ways that you’re gonna have subsequent contact. It might be immediate where you’re detained by what’s called a loss prevention officer, an LPO or a store security personnel. Now they’re not always dressed up and identified. In fact, they’re usually plain clothes dressed, but they should identify you as having some legal connection, some legal representation to the business. And then they’ll take you in for some immediate questioning while still on the premises of the store. You may also, a second kind of contract could be just simply notified. They may be reviewing security video later and they may submit that case to the police department or submit it to the prosecutor and you may get a ticket in the mail or you may get notified that you have a warrant out for your arrest.
So don’t think that just because you walked out of the store, or they let you go, or that you didn’t receive a ticket onsite, that that means that this is the end of your legal problem. And the third kind could be the immediate involvement of law enforcement. Frequently we see, at least in our area, I’ve seen that there’s sometimes police cars that are sitting right out front from the stores. They’re ready and available to take you in and for you to be that initial contact with an actual law enforcement personnel. What they’ll likely do in most scenarios is simply issue a ticket and then let you go on your way.
But you are going to be detained if they suspect that you’ve committed retail fraud and that you will be detained, at least for some period of time for them to issue their ticket or to conduct an investigation by asking you questions about what happened.
Kevin
Okay, yeah, and it’s a big deal in that this can be on your record, right?
Mike
Absolutely, and these types of crimes that we’re talking are trustworthiness offenses. So these are crimes that suggest that you’re an untrustworthy person, something that’s gonna preclude you from working anywhere that handles cash or cash register or financial responsibilities. This could be something that could preclude you from having housing issues, suggesting you’re dishonest on any applications you apply to. This could have other meaningful collateral consequences in addition to the fact that this is a part of the criminal code. This is not a civil offense.
Now I wanna talk briefly on that because sometimes people will receive what’s called a civil demand letter in connection with their shoplifting case. Just by paying the civil demand letter that does not extinguish your responsibilities to the court or to respond to any criminal charges offered against you. You must consult with an attorney if you’re considering just paying a civil demand versus handling it in court or which one should be going first. You must talk with an attorney to best advise on what steps to take if you are presented with a civil demand letter that threatens a civil lawsuit in conjunction to the criminal consequences that are already going on.
So yes, a very big issue, immigration consequences, professional licensing problems. We talk about difficulty on applications, college applications, housing. And again, you could lose a position that you already have just based on the nature of this offense. It is something that goes on a criminal record. It is something that would come up on a public background check. You cannot take it lightly.
Kevin
Wow, well, yeah, that’s good advice, a simple background check that could really cause problems. What are the particular concerns regarding a juvenile offender committing shoplifting as opposed to adult?
Mike
Well, and I think that the big concern that I usually see here is that we consider shoplifting a relatively minor offense committed by young people who don’t simply don’t know any better. And maybe it’s no big deal. You know, they took a pack of gum or they did something here or there. They took some makeup from the store. Shame on them, you know, we can have this case process pretty quickly. It won’t result in them having a record and let’s move on wrong. With a juvenile, the concern that we see is that the court frequently sees repeat offenders who started with simple offenses like shoplifting. While most of us may say, “Hey, my kid’s never been in trouble before”. “This was an isolated incident.” The justice system, specifically the juvenile justice system, treats birth defender shoplifters very seriously because it is such a common starting place for careers in the criminal justice system. So I think it’s important that parents not take this charge lightly. Do not assume that your kid’s never been in trouble before. This will all work out.
You can run into juvenile court referees, judges and prosecutors that will be coming down particularly hard on these types of minor offenses because of what the blueprint suggests with that person’s relationship to re-offending later in time. So I think it’s super serious that parents need to respond with an attorney, get the right advice, do not take these lightly regardless if it’s your child’s first ever contact with the law enforcement system.
Kevin
So on that note, how can a criminal defense lawyer for retail fraud at Kelly & Kelly, PC help?
Mike
Yeah, I mean, I think it’s, part one is information gathering. Get some information from an attorney like me. Let me get the right information from you. Figure out what your concerns are, what your potential pitfalls could be, whether those are job prospects that it could be in jeopardy, college applications that you’re concerned about for your son or daughter, things of that nature and certainly making sure that there’s a plan in place that keeps you out of jail and potentially could set this up so it doesn’t have lasting long-term consequences. There are certain first offender programs that are out there. Not everyone qualifies, not every court offers them. You need in a seasoned attorney like the attorneys at Kelly & Kelly that are familiar with all the courts in this area and beyond who can say, “Yeah, I’ve got experience handling these types of cases “and these types of courts, and they do have a program, they don’t have a program,” or more importantly, what you need to do to qualify for any of that consideration.
Kevin
Well, this is great information. Thank you for sharing your legal expertise on the topic, Mike.
Mike
Absolutely, Kevin. Thanks again.
Kevin
Thanks again.
