What Is Retail Theft? – 720 ILCS 5/16-25

In short, retail theft is when you go pass the last point of sale with an item without paying for that item. The law for Retail Theft in Illinois is found at 720 ILCS 5/16-25. It states, “A person commits retail theft when he or she knowingly:
(1) Takes possession of, carries away, transfers or causes to be carried away or transferred any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise; or
(2) Alters, transfers, or removes any label, price tag, marking, indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment and attempts to purchase such merchandise at less than the full retail value with the intention of depriving the merchant of the full retail value of such merchandise; or
(3) Transfers any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment from the container in or on which such merchandise is displayed to any other container with the intention of depriving the merchant of the full retail value of such merchandise; or
(4) Under-rings with the intention of depriving the merchant of the full retail value of the merchandise; or
(5) Removes a shopping cart from the premises of a retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of depriving the merchant permanently of the possession, use or benefit of such cart; or
(6) Represents to a merchant that he, she, or another is the lawful owner of property, knowing that such representation is false, and conveys or attempts to convey that property to a merchant who is the owner of the property in exchange for money, merchandise credit or other property of the merchant; or
(7) Uses or possesses any theft detection shielding device or theft detection device remover with the intention of using such device to deprive the merchant permanently of the possession, use or benefit of any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment without paying the full retail value of such merchandise; or
(8) Obtains or exerts unauthorized control over property of the owner and thereby intends to deprive the owner permanently of the use or benefit of the property when a lessee of the personal property of another fails to return it to the owner, or if the lessee fails to pay the full retail value of such property to the lessor in satisfaction of any contractual provision requiring such, within 10 days after written demand from the owner for its return. A notice in writing, given after the expiration of the leasing agreement, by registered mail, to the lessee at the address given by the lessee and shown on the leasing agreement shall constitute proper demand.

Is Retail Theft a Misdemeanor or a Felony?

Generally, Retail Theft is a class A Misdemeanor. 730 ILCS 5/5-4.5-55. Misdemeanors are crimes that are punishable by less than 1 year of imprisonment in the county jail. However, this charge can be a felony if you have a prior conviction for:

• Any type of theft,
• Robbery,
• Armed robbery,
• Burglary,
• Residential burglary,
• Possession of burglary tools,
• Home invasion,
• Unlawful use of a credit card, or
• Forgery.

What is the sentencing range For Retail Theft In Illinois?

Generally, Retail Theft is a Class A Misdemeanor punishable by up to 364 days in the county jail. 730 ILCS 5/5-4.5-55(a). However, if you have previously been convicted of any type of theft, then Retail Theft becomes a Class 4 felony. If the amount that was stolen was over $300, then Retail Theft becomes a class 3 felony, punishable by 2 to 5 years in the Illinois Department of Corrections. 720 ILCS 5/16-25(f)(3).

Do I need a lawyer if I am charged with Retail Theft?

Yes, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people.

Are There Added Penalties If I Left Through An Emergency Exit 720 ILCS 5/16-25 (b)?

Yes. Theft by Emergency Exit increases the penalty of the Retail Theft by one level. As a result, what would normally be a Class A Misdemeanor is now a Class 4 felony because you left by an emergency exit. If you were subjected to the class 4 felony version of retail theft because of your prior convictions, then you would now be looking at a Class 3 felony because you left by an emergency exit. If you were facing a Class 3 Felony Retail Theft because the amount was over $300, then you would be looking at a class 2 felony if you left by an emergency exit.

Can You Get a Sentence of Probation on a Retail Theft?

Yes. If you are charged with Retail Theft, you are eligible for a sentence of probation of up to 24 months on a class A misdemeanor (730 ILCS 5/5-4.5-55(d)). For the class 3 and 4 felony versions of retail theft, you can be sentenced up to 30 months of probation. 730 ILCS 5/5-4.5-45(d). Not only are you eligible for probation, but Illinois law suggests it: “the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: his imprisonment or periodic imprisonment is necessary for the protection of the public; or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” 730 ILCS 5/5-6-1(a).

How long is the Mandatory Supervised Release or Parole Period for Retail Theft?

For Retail Theft cases, a person sentenced to the Illinois Department of Corrections will not have a mandatory supervised release period unless the Prisoner Review Board, based on a validated risk and needs assessment, determines it is necessary for an offender to serve a mandatory supervised release term. If the Prison Review Board decides to put you on Mandatory Supervised Release, the maximum period will be 1 year. 730 ILCS 5/5-8-1(d)(3).

Can I Get Court Supervision On A Retail Theft?

Yes, you can receive court supervision if you were charged with the Class A Misdemeanor. But if you were charged with a felony version of retail theft, court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c). TIP: Keep reading to find out about Second-Chance Probation.

Can I Possess A Gun If I Am Convicted Of Retail Theft?

Generally, a misdemeanor retail theft should not affect your gun privileges. A felony retail theft, however, will prevent you from possessing a firearm. See my Unlawful Possession of a Weapon by a Felon guide.

What Is The Extended Term Sentencing Range For Felony Retail Theft ? 730 ILCS 5/5-4.5-35

Under Illinois’ extended sentencing guidelines, if you have been convicted of a felony in the last 10 years, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled.  730 ILCS 5/5-5-3.2(b). That means that the extended sentencing range for a class 4 felony retail theft is 1 to 6 years IDOC (730 ILCS 5/5-4.5-45(a)). The extended sentencing range for a class 3 felony retail theft is 2 to 10 years IDOC (730 ILCS 5/5-4.5-40(a))

What Percentage of Your Sentence Will You Serve on a Felony Retail Theft 730 ILCS 5/3-6-3(a)(2.1)?

Retail Theft is a 50% sentence. Illinois Truth-In-Sentencing law states: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received the imprisonment term of 2 year in the Illinois Department of Corrections, the most you would actually serve is 1 year assuming you do not receive any other credits.

What Other Things Should I Know If I Suspect That Police Are Investigating Me for Retail Theft?

Police sometimes call suspects to ask them if they could come down to the police station and “answer some questions about an incident that happened.” This is an attempt to gather evidence against you. As with any ongoing criminal investigation, you have the right to a lawyer and the right to remain silent. DO NOT TALK TO ANYONE about an ongoing criminal investigation. #commonsense; #notlegaladvice.

Can A Lost Prevention Employee Detain Me If They Think I Committed A Retail Theft?

Yes! The law allows merchants to detain you if they have reasonable grounds to believe that you have committed a retail theft. Illinois Merchant’s Right to Detain Law specifically states that: “Any merchant who has reasonable grounds to believe that a person has committed retail theft may detain the person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time for all or any of the following purposes:
(1) To request identification;
(2) To verify such identification;
(3) To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise and to make reasonable investigation of the ownership of such merchandise;
(4) To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer;
(5) In the case of a minor, to immediately make a reasonable attempt to inform the parents, guardian or other private person interested in the welfare of that minor and, at the merchant’s discretion, a peace officer, of this detention and to surrender custody of such minor to such person.
A merchant may make a detention as permitted in this Section off the premises of a retail mercantile establishment only if such detention is pursuant to an immediate pursuit of such person.
A merchant shall be deemed to have reasonable grounds to make a detention for the purposes of this Section if the merchant detains a person because such person has in his or her possession either a theft detection shielding device or a theft detection device remover.
A detention as permitted in this Section does not constitute an arrest or an unlawful restraint, as defined in Section 10-3 of this Code, nor shall it render the merchant liable to the person so detained. 720 ILCS 5/16-26.

What If I Fought A Merchant Who Was Trying To Detain Me During The Retail Theft?

You could be charged with an aggravated battery. Illinois offers extra protection to merchants by increasing the penalty from a misdemeanor to a felony for batteries to merchants. The law states that: “A person commits aggravated battery when, in committing a battery, other than by discharge of a firearm, he or she knows the individual battered to be … a merchant who detains the person for an alleged commission of retail theft under Section 16-26 of this Code and the person without legal justification by any means causes bodily harm to the merchant.” 720 ILCS 5/12-3.05(d)(9).

How To Keep A Retail Theft Case Off Your Record

There are several ways to keep a conviction for possession of a stolen motor vehicle case off your criminal record. Here are some of the ways:

Win the Retail Theft Case at Trial

Challenge that “YOU” committed the crime.

Many people are going to stores wearing masks because of the coronavirus pandemic. As a result, people who commit retail thefts have their faces covered. If you successfully left the store and were not stopped by the police, it may be very difficult for the police to say beyond a reasonable doubt that YOU committed the retail theft. If you lawyered up and did not confess to the crime, challenging the identification may be an awesome argument.

Challenge that you did not have “criminal intent.”

Retailers have moved to self-service checkouts as a way to save money. The public hates these checkout terminals because we are not employees of Walmart and Target, doing the work that they should be paying employees to do. A customer may innocently under-ring items because they did not hear a beep. Walmart must show that it was not an accident and that you intended to commit the crime. Pro tip: You should talk with your lawyer about a jury trial.

Win the Retail Theft Case at Motion

If the biggest piece of evidence against you was the surveillance video from the store, it better have been preserved. If the State failed to preserve the video, you could seek exclusion of any evidence that stems from that video, namely the entire case. This could result in a dismissal of your case. You should speak with your lawyer about filing the necessary motions.

Complete Second Chance Probation. What is Second Chance Probation? (730 ILCS 5/5-6-3.4)

People charged with Retail Theft who have no prior felony convictions are eligible for second chance probation. Second Chance Probation is a great way to keep a felony conviction off your criminal history. Here are the minimum requirements of the program:

• 24 Months of Probation;
• 30 hours of Community Service;
• Remaining free from controlled (non-prescribed) substances which is monitored by random drug testing; and
• Completion of a Drug Abuse Evaluation and following any recommended treatment.

Second Chance probation does require the prosecutor’s consent (so be nice to your assistant state’s attorney). A person can only get Second Chance Probation once every 4 years. 730 ILCS 5/5-6-3.4(h).

Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)

Under the Substance Use Disorder Act, a person can be sentenced to treatment as a condition of probation for a Retail Theft case. Although a conviction initially enters against you, the good news is that “upon successful fulfillment of the terms and conditions of probation the court shall discharge the person from probation. If the person has not previously been convicted of any felony offense and has not previously been granted a vacation of judgment under this Section, upon motion, the court shall vacate the judgment of conviction and dismiss the criminal proceedings against him or her.” 20 ILCS 301/40-10(e).

Diversion Programs

Many counties have diversion programs which are alternatives to the criminal justice system. Essentially, you and the prosecutor enter into an agreement that if you comply with the terms of the program (which usually include treatment, classes, and/or community service) the case that brought you to court would be dismissed. If the prosecutor is offering a diversion program, accepting and complying with the program is almost always the best possible result.

Plea Agreement (Reduction on the Charge)

Although rare, prosecutors sometimes clear backlogs and move cases by giving defendants “a bargain.” A reduction from a felony possession retail theft to a misdemeanor retail theft is a very good disposition.

Other Theft Crime Guides

If you are looking for information about:

• Possession of Stolen Motor Vehicle cases, then check out our guide to Possession of Stolen Motor Vehicle cases in Illinois.
• Burglary cases, then check out our guide to Burglary cases in Illinois.
• Robbery cases, then check out our guide to Robbery cases in Illinois.
• Residential Burglary cases, then check out our guide to Residential Burglary cases in Illinois.

Hire Illinois Retail Theft Lawyer Clyde Guilamo

Lastly, I hope this guide of free legal education was helpful. #notlegaladvice. If you found this article helpful, then consider giving us a review on Google! And if you have specific questions about your case, give me a call.