Shoplifting and Civil Demand letters – Audio Podcast

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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: 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


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


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


Speedy trial rights – 10 day trailing period

What are the rules for a speedy trial in California?


There are actually a couple of different speedy trial rules.

The first question is whether you are charged with a felony or a misdemeanor. If it is a misdemeanor, you have a right to a trial within 30 days of your arraignment (initial not guilty plea) if you were in custody at the time of arraignment or 45 days if you was out of custody. Those time frames apply based on whether you were in custody at the time of the arraignment, even if you later bailed out or were taken into custody for some reason.

If you were charged with a felony, you had a preliminary hearing first, then were arraigned on the information (the charging document filed after prelim). You then have a right to a trial within 60 calendar days of the arraignment on the information.

For either a felony or misdemeanor, if you waived your right to a trial within those time frames, you then have a new trial date set on a specific date. The trial must begin on that day or within 10 days after. The day trial is set is “day zero” and the next day is “day one”, etc.

If the prosecutor is unable to proceed to trial in the appropriate time frames, the case will be dismissed. There are a few exceptions for an additional trailing period for a very few types of cases.

That’s the 10 day rule in a nutshell.


To discuss your Orange County criminal case, give me a call or send an email.

Joe Dane, Orange County Defense Attorney



For more information, see the following posts:

What happens at your first court date (arraignment)?

What is a preliminary hearing?

What are the stages of a felony case?

If you consent to a police search, can you limit where they can search? Orange County criminal defense attorney

If the police ask if they can search, can you put limits on where or how they can search?


The answer is yes… and no.

If the police search is based on consent, the person giving consent can set limits as to the scope of the search. For example, you could give consent for the police to search for a stolen washing machine, but that would not allow them to look in places were a washing machine could not be found. You can also limit the areas. You could allow a search of your garage, but not the main house or vice versa. You can put whatever limits on the consent you give. It could be by location, for particular items, time, etc.  You could (for example) allow the police to search your car’s passenger compartment but not the trunk. You could allow a five minute search. Whatever the terms are must be adhered to by the police or they are exceeding the scope of consent.

If the police exceed the scope of consent, unless they have probable cause or a warrant or other independent grounds to have legal access to search any evidence found is subject to being suppressed in court.

Once given, consent can also be withdrawn. Once consent is withdrawn unless the police have independent grounds to search, the search is over and anything found after consent is withdrawn is subject to being excluded.

That’s the “yes” part of the answer.

The “no” part comes from whether or not the scope of consent is clear or whether or not during the authorized search the police develop independent grounds to either continue searching, freeze the location and get a warrant or do other things that lead to unintended results. So if in your limited consent search, if the police gather enough information to have probable cause to search, they could (potentially) continue to search beyond where you tried to limit them or they could get a warrant and come back to continue the search.

Granting consent for any portion of a search can snowball with unintended results.

Can you fight a “consent search” in court?

Keep in mind that just because you gave consent or the police say you gave consent to search, it doesn’t necessarily mean game over.  Consent must be freely and voluntarily given in order to be valid.  Many police departments have their officers wear recording devices, so every word said by both the officer and you can be examined.

If you’re facing criminal charges based on a search that you may or may not have consented to, give me a call or send an email.  I practice in all Orange County courthouses.


Joe Dane



For more information about searches and suppressing evidence, see these links:  How is evidence suppressed in court? and Search and Seizure