I understand PC 490.5 allows them to collect but to threaten with criminal charges seems a bit over the line. She and a friend purchased over $600 in merchandise and a pair of $13 sandals was missed in the bottom of a stroller. The LP followed her out and used the typical "come back in the store" tactics. My wife was scared and embarrassed and complied fully to quickly end the situation. We're received the second of two demand letters (we've never received the first) that wants payment in 10 days or the matter will be turned over to PD. What fight are we in for if we choose to not pay? They received their merchandise back in perfect condition.
I have never heard of a civil demand letter coming with a threat of turning over to the police department if payment not made. Technically, that is a form of extortion and I would think that the sender of that letter could find themselves in legal trouble.
Most criminal defense attorneys would advise their clients never to pay the civil demand. The reason being is that really the only way they can effectively collect it, is if you voluntarily pay it. They count on most folks being too scared to do otherwise. While they are legally entitled to the civil penalty (regardless of whether the merchandise was recovered in perfect condition) the reality is that it is too costly for them to pursue a judgment to be able to collect it from you involuntarily.
I guess the question is whether they are bluffing as to their threats. If not, then your wife could find herself being charged with theft and having a criminal record (even if it is in the end only for the arrest and charge because the case is subsequently dismissed or she is found not guilty). She certainly doesn't wish to have to face charges, but that does not mean that you should feel compelled to pay the fine. She certainly has a valid defense (although many people with valid defenses prefer to take advantage of diversion programs just to avoid having to deal with the court ordeal), and there is always a chance that the DA will decline to prosecute even if the matter were referred to law enforcement. You did not state whether she made any verbal or written admissions to the theft, in which case her defense is minimized.
These are very common tactics and the #! question asked on Avvo. Just ignore the letters and do not pay. They will not pursue the matter in civil court as it's not worth their time or expense. Paying a civil demand has no impact whether or not criminal charges are filed. I am not aware of them ever threatening criminal charges..which is highly improper, if not illegal. However, if she receives a notice to appear from the court, she will need to appear.
Most of us advise our clients not to pay civil demand letters. They are typically all bark and no bite. Contact a consumer advocate to see if the threat of a criminal legal action is unlawful. If charged with theft, hire an attorney.
Answers provided by attorney Matt Williams to questions on Avvo DO NOT form an attorney client relationship. Mr. Williams is available to represent persons charged with crimes in Ohio for a fee. Only after Mr. Williams is retained, or agrees to discuss a matter privately, shall Mr. Williams be deemed your attorney. Mr. Williams answers questions on Avvo only to provide general advice based upon the limited information in the question.
This is a recurring theme and question on AVVO. If the demand is not paid, the only way they can collect is by suing and getting a judgment. These demand letters are authorized in shoplifting cases, and the increased damage sums are also so authorized.
Threat of criminal prosecution should not be used to try to get a civil advantage, but prosecutors never seem to pursue such matters. If a case is filed, hire an experienced criminal defense attorney to represent your wife. Keep all receipts from the day in question.
Unless the police department was present at Kohl's it is unlikely that it will do anything. The general rule is that you can safely ignore the civil demand letter.. The police are not going to do anything. Kohl's is not going to sue you. Forget about it.
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