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A Simple Mistake Can Land You in Jail

As you have no doubt noticed many retail stores nowadays offer customers a self-scan checkout option. I have never personally used one because it doesn't really seem like it would be much faster than having a clerk check me out, but also because I was concerned that I might do it wrong and something wouldn't get scanned properly.

I have had three clients this past year, none of whom had prior criminal records, who were handcuffed, arrested and paraded out of their local retail department store and into the back seat of a police cruiser; and charged with petit larceny for not scanning all their items at the self-scanner. Petit larceny in New York is an "A" misdemeanor punishable by up to one year in jail.

One former client so charged suffers from stage 4 colon cancer and takes a variety of pain and anti-anxiety medication and he forgot to scan one item at check out, even though he'd purchased at least seven other items. While making his getaway, he's not yet 50 but walks with a cane, he was stopped near the store exit by a loss prevention officer. He was escorted to a room at the back of the store and detained while waiting for police to arrive. He explained to the loss prevention officer that he takes a lot of medication for his illness and so he's sometimes a little foggy and that it was just an oversight, an innocent mistake, but the officer explained about their "zero tolerance" policy when it comes to theft. Essentially he was told – "tell it to the judge."

Mind you that in addition to being a very frail cancer patient my client had been shopping at this particular store for years and was on a first name basis with many of the staff. None of that mattered. Store personnel called police; he was handcuffed, arrested and booked into jail where he spent the night, without his medication, until he was arraigned the following morning and released on his own recognizance.

As most of us are aware, when charged with a crime in this country we enjoy a right to a presumption of innocence, but for all intents and purposes that presumption doesn't actually kick in until you get to court. Before that you're considered and treated as guilty by police, jailers and the media if your case comes up on their radar. Speaking of the presumption of innocence I remember very clearly the first conversation I had with the very insensitive assistant district attorney about the case. I carefully explained my client's version of events and detailed his serious medical condition and the variety of medications he takes on a daily basis – the first words out of her mouth were, "Well, it seems he's not too sick to steal." So much for even a little understanding and compassion.

Eventually I was able to get the charges dismissed for my client, but consider for a moment all he endured before he was exonerated – arrest, a night in jail without his medication, humiliation, embarrassment, several court appearances and legal fees.

Two more clients of mine now face similar charges – both professionals with no prior convictions of any sort. Actually one of them is a former police officer. They were shopping at a large national department store and used the self-scan checkout and an item didn't scan properly and so, despite their plausible explanation to store personnel they were arrested and charged with petit larceny. They were also told that the store has a "zero tolerance" policy for theft. I am confident that their charges will eventually be dismissed, but again, the humiliation of public arrest, court appearances, legal fees and the very real possibility that their careers may be adversely affected by the charges will haunt them for months if not years.

Many may think that keeping their receipt will protect them from false accusations. While it is certainly very helpful, but when using the self-scan check out you're still trusting your fate to the scanner technology. Suppose you hear the "item scanned" beep, but the item doesn't actually show up on your receipt. If it's only you involved in the check-out process then there's no else responsible but you. Remember store employees will almost never assume it was a technological glitch and your vehement protests of "Oh my God, this is ridiculous" will fall on deaf ears as you're being led out of the store in cuffs.

My advice, if you haven't already guessed it, is: Don't use the self-scan check-out lane. If you must – be very careful and take the time to double check to make certain that each and every item you intend to leave the store with is accounted for on your receipt. And remember that your constitutionally guaranteed presumption of innocence really only comes in to play at trial – before that pretty much everyone is sure you did it.

Steve Buitron, Esq.

Categories: Criminal Defense
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The Law Office of Steven C. Buitron, P.C. - Criminal Defense Attorney in Syracuse
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