Criminal Mischief

The mens rea or mental state is the pivot point of the case. Most statutes distinguish between intentional damage (doing it on purpose) and reckless damage (doing something dangerous that results in damage).

For example, throwing a brick through a window is intentional. Throwing a brick at a wall and missing so it hits a window is reckless. We argue that accidents do not constitute criminal mischief. If a client tripped and fell into a display case, there is no criminal intent. We work to downgrade charges by proving that the conduct was at most negligent (a civil matter) rather than reckless or intentional (a criminal matter).

Damage does not always mean total destruction. It can mean diminishing the value of the property or interfering with its use. Letting the air out of tires is criminal mischief even if the tires are not slashed because it interferes with the owner’s use of the vehicle.

However, the damage must be tangible or measurable. We frequently litigate cases where the alleged damage is superficial or easily cleanable (such as using chalk on a sidewalk). We argue that if the utility of the property was not impaired and the value was not diminished, the elements of the crime are not met.

A person cannot generally be convicted of damaging their own property. However, this becomes complex in domestic situations. If a husband smashes a television that he purchased but is used by the family, is it criminal mischief?

In many jurisdictions (specifically community property states), damaging marital property can legally constitute criminal mischief against the spouse’s interest in that property. We analyze the title and ownership documents carefully. If we can prove the client had a superior right of possession or sole ownership, it serves as a complete defense to the charge.

When the damage is below a statutory threshold (often $500 or $1,000 depending on the state), the offense is a misdemeanor. While this avoids prison time in most cases, it carries significant stigma. 

Penalties often include:

• Probation for up to one year
• Mandatory community service (often cleaning graffiti)
• Suspension of driver’s license (common in graffiti cases)
• Fines and court fees

We negotiate for diversion programs in these cases. By agreeing to pay restitution upfront and perform community service, we can often get the charges dismissed and expunged, ensuring the client’s record remains clean.

If the damage exceeds the statutory limit, the charge becomes a felony. This exposes the defendant to state prison time and the loss of civil rights such as voting and gun ownership. Felony charges are also triggered regardless of value if the damage involves critical infrastructure.

This includes tampering with public utilities, damaging places of worship or disrupting public transportation. We treat these cases with extreme urgency. We hire independent appraisers to provide counter-valuations. If the prosecution claims the damage is $1,500 and our expert proves it can be repaired for $900, we can force a reduction of the charge from a felony to a misdemeanor.

If the vandalism targeted a specific group based on race, religion or sexual orientation, the penalties skyrocket. A simple act of graffiti becomes a hate crime felony.

We scrutinize the evidence for bias. The prosecution must prove that the motivation was hate (not just that the victim belonged to a protected class). We defend against these enhancements by demonstrating that the vandalism was random or motivated by a personal dispute rather than bias, preventing the imposition of draconian hate crime sentencing enhancements.

The most common felony mischief cases occur during breakups or divorces. Slashing tires, breaking phones or cutting clothes are standard allegations. These are often charged alongside domestic violence counts.

In these cases, the credibility of the complaining witness is paramount. We investigate the relationship history to find evidence of fabrication or exaggeration. We also leverage the ownership defense (arguing that the property was purchased with the defendant’s own funds). Our goal is to decouple the property charge from the emotional narrative of the relationship.

Modern statutes have evolved to include cyber crimes. Deleting files, introducing viruses or altering data on a server constitutes criminal mischief. These cases are technically complex.

The prosecution must prove that the defendant was the specific person behind the keyboard. We employ digital forensic experts to challenge the IP address evidence and login logs. We often argue that the defendant had authorization to access and modify the files as part of their employment, negating the element of unlawful tampering.

Law enforcement often tracks tagging crews for months to build a massive restitution case. They will try to link a single defendant to hundreds of tags across the city based on a similar style or moniker.

We challenge the handwriting analysis and the link between the specific tags. Just because a notebook with sketches was found in a client’s room does not prove they committed every crime associated with that tag. We force the state to prove each count individually rather than allowing them to bundle speculative charges.

Victims often demand the replacement cost of a brand new item. However, the law generally entitles them only to the fair market value of the used item at the time it was destroyed.

If a client destroys a ten-year-old television, they should pay for a ten-year-old television (not a brand new 4K model). We challenge inflated claims by presenting evidence of depreciation. We argue that the victim is not entitled to a betterment or an upgrade at the defendant’s expense.

In addition to the criminal case, the victim can sue in civil court. Many states have statutes that allow for treble damages (triple the actual damages) in cases of intentional vandalism.

This is a massive financial risk. A criminal conviction serves as proof of liability in the civil case. By settling the criminal case through a civil compromise (where the victim is compensated and agrees to drop charges), we can often resolve both the criminal and civil liability simultaneously, protecting the client from future lawsuits.

The most effective defense is often that the damage was an accident. Without the intent to damage property, there is no crime.

We look for evidence that supports a lack of malice. Was the client trying to fix the item? Did they slip? Was it dark? We present a narrative that portrays the event as a clumsy mistake rather than a malicious act. This effectively removes the criminal element and leaves the matter as a civil dispute.

Vandalism often happens at night or when no one is watching. Eyewitness identifications in these conditions are notoriously unreliable.

We challenge the identification procedures used by the police. We also present alibi evidence (cell phone tower data, credit card receipts or witness testimony) to prove our client was elsewhere when the damage occurred. If the prosecution cannot place the defendant at the scene with certainty, the case collapses.

In rare cases, damaging property is necessary to prevent a greater harm. Breaking a window to escape a fire or to rescue a child from a locked car is not criminal mischief.

We assert the defense of necessity. We must prove that the defendant reasonably believed there was an immediate threat of injury and that damaging the property was the only way to avoid it. This turns the act of destruction into an act of heroism or survival.