Shoplifting and Theft Defenses

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


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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

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




Joe Dane, Orange County Defense Attorney

Shoplifting – Civil Demand Letters

Is Petty Theft a Big Deal?

Shoplifting and Loss Prevention Officers


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