PRESUMPTIVE
EVIDENCE
Getting it on the Books
John Culwell
Security Section Leader
Arizona Public Service Company
We’ve All Seen This Before
Have a good case
 Secure the scene
 Call the police
 Await PD response
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Slam Dunk???
Police Arrive
“What do you have?”
 “What’s energy theft? (diversion)”
 “Sounds like a civil case.”
 “Theft? What’s the value?”
 Etc., etc., etc.
 Not being critical, just the facts of life in
Arizona
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Arizona Statutes, Title 13
13-1602; Tampering with the property of a
utility is a class 4 felony (8 to 12 years)
 13-1802; Obtains services known to be
available for compensation without paying,
or diverts another’s services to the
person’s own benefit is a felony if the
values of the service is $250 or more
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No Brainer???
What Do We Do?
Spend hours explaining “theft of service”
 Stop calling PD
 Pull our hair out
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Got Them Nailed???
Alternative - Providing Training
Meet with command staff (they enjoy
making contact with public/private
organizations)
 Volunteer to conduct training
 Attend squad meetings (all shifts)
 Provide material pertinent to the
jurisdiction
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Let’s Not Reinvent The Wheel
Diversion is theft
 Tampering results in theft
 Thieves are criminals
 Need statutes that enable law
enforcement to act
 Make theft of service and tampering a
crime
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It’s a Crime
$6 billion lost to thieves
 Loss of tax revenue to state
 Safety hazard for both the general public
and utility works
 Electricity, gas, water, cable TV and
telephonic communications affected
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“Presumptive Evidence?”
Based on the common-sense view that it
is only the person receiving service who
has any reason to cause the tampering
 Cable TV already has it!
 19 states have various forms of
presumptive evidence
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“Presumptive Evidence”
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Rebuttable presumption that the customer
intentionally obtained utilities fraudulently,
IF a meter is altered, tampered with or bypassed
resulting in inaccurate measurement of utilities,
OR a person is an occupant or has access to the
premises and receives a benefit from tampered
or bypassed equipment,
OR an instrument, apparatus or device is found
attached to the meter.
Background
2003 WSUTA Conference
 Sierra Pacific Resources corporate
counsel Kathleen Drakulich
 “Best time to attempt new legislation is
when you have a rate case pending”
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Arizona
Got executive management on-board
(we’re losing money)
 Got SRP, TEP, Arizona Electric
Cooperative to support
 Found a legislative sponsor – critical!
 Outline what you want in best of all
possible worlds; be willing to take less
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Own the Legislation – Work It
Be the source expert – meet with
members of the legislature
 Be consistent – write pertinent facts and
present pictures of thefts and diversions
 Be conscious of time – last year a total of
2,000 pieces of legislation were introduced
in Arizona; make your pitch and get out
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Testify
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Be willing to be sworn and testify to the facts of
the proposed bill
Know that some are opposed to the legislation
(ACLU)
Know that some feel they could be adversely
affected (more work for prosecutors, law
enforcement officers)
BE FLEXIBLE
Committees
Judiciary
 Rules
 Utilities and Municipalities
 Caucus
 Committee of the Whole
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Apparent Success?
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“Success has a 1,000 fathers, failure is an
orphan” (or something like that)
Everyone wants a piece of the pie, if it appears
the legislation will pass
Amendments, amendments, etc.
Each amendment requires a new vote
Have reasons ready why an amendment would
adversely affect the legislation
Passed House & Senate
To the Governor for signature
 Meet with Governor staff
 New set of questions (will this adversely
affect a group of voters, businesses, rural,
metro, etc.???)
 Staff recommendation
 Signed into law; effective 90-days later
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CELEBRATE
Survived 8 votes
 Governor’s signature
 Becomes law August 30, 2004
 Average of 1 in 4 bills that are introduced
become law (over 1,200 bills introduced,
about 300 signed into law)
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AZ Statute 13-3723
Class 6 felony
 Rebuttable presumption that the customer
intentionally violated any act if certain
conditions are met
 Includes agricultural improvement districts,
water companies, natural gas
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13-3723. Obtaining utility service
fraudulently; classification;
definitions
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A. IT IS UNLAWFUL FOR ANY CUSTOMER OR PERSON TO INTENTIONALLY DO ANY OF
THE FOLLOWING:
1. MAKE A CONNECTION OR RECONNECTION WITH PROPERTY THAT IS OWNED OR
USED BY A UTILITY TO PROVIDE UTILITY SERVICE WITHOUT THE AUTHORIZATION OR
CONSENT OF THE UTILITY.
2. PREVENT A UTILITY METER OR OTHER DEVICE THAT IS USED TO DETERMINE THE
CHARGE FOR UTILITY SERVICES FROM ACCURATELY PERFORMING ITS MEASURING
FUNCTION.
3. TAMPER WITH PROPERTY THAT IS OWNED OR USED BY A UTILITY.
4. USE, RECEIVE OR OTHERWISE DIVERT UTILITY SERVICES WITHOUT THE
AUTHORIZATION OR CONSENT OF THE UTILITY IF THE CUSTOMER OR PERSON KNOWS
OR HAS REASON TO KNOW OF THE UNLAWFUL DIVERSION, TAMPERING OR
CONNECTION.
5. DIVERT OR CAUSE TO BE DIVERTED UTILITY SERVICES BY ANY MEANS.
13-3723 – page 2
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B. THERE IS A REBUTTABLE PRESUMPTION THAT THE CUSTOMER OR PERSON
INTENTIONALLY VIOLATED AN ACT SPECIFIED IN THIS SECTION IF ANY OF THE
FOLLOWING OCCURS:
1. AN INSTRUMENT, APPARATUS OR DEVICE THAT WAS INSTALLED TO OBTAIN UTILITY
SERVICE WITHOUT PAYING THE FULL CHARGE IS FOUND ATTACHED TO THE METER OR
OTHER DEVICE THAT IS USED TO PROVIDE THE UTILITY SERVICE ON THE PREMISES
CONTROLLED BY THE CUSTOMER OR BY THE PERSON WHO USES OR RECEIVES THE
UTILITY SERVICE.
2. A METER WAS ALTERED, TAMPERED WITH OR BYPASSED RESULTING IN NO
MEASUREMENT OR AN INACCURATE MEASUREMENT OF UTILITY SERVICES.
3. THE CUSTOMER, PERSON OR OWNER IS AN OCCUPANT OF THE PREMISES OR HAS
AN ACCESS TO THE SYSTEM FOR DELIVERY OF THE SERVICE TO THE PREMISES AND
RECEIVES A BENEFIT FROM TAMPERED OR BYPASSED EQUIPMENT.
C. THE PRESUMPTION PROVIDED IN SUBSECTION B SHIFTS THE BURDEN OF GOING
FORWARD WITH THE EVIDENCE AND DOES NOT SHIFT THE BURDEN OF PROOF TO THE
DEFENDANT.
D. OBTAINING UTILITY SERVICE FRAUDULENTLY IS A CLASS 6 FELONY.
13-3723 – page 3
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E. FOR THE PURPOSES OF THIS SECTION:
1. "CUSTOMER" MEANS THE PERSON IN WHOSE NAME A UTILITY SERVICE IS PROVIDED.
2. "DIVERT" MEANS TO CHANGE THE INTENDED COURSE OR PATH OF ELECTRICITY, GAS
OR WATER WITHOUT THE AUTHORIZATION OR CONSENT OF THE UTILITY.
3. "RECONNECTION" MEANS THE RESTORATION OF UTILITY SERVICE TO A CUSTOMER
OR PERSON AFTER SERVICE HAS BEEN LEGALLY DISCONNECTED BY THE UTILITY.
4. "TAMPER" MEANS TO REARRANGE, DAMAGE, ALTER, INTERFERE WITH OR
OTHERWISE PREVENT THE PERFORMANCE OF A NORMAL OR CUSTOMARY FUNCTION,
INCLUDING ANY OF THE FOLLOWING:
(a) CONNECTING ANY WIRE, CONDUIT OR DEVICE TO ANY SERVICE, DISTRIBUTION OR
TRANSMISSION LINE THAT IS OWNED OR USED BY A UTILITY.
(b) DEFACING, PUNCTURING, REMOVING, REVERSING OR ALTERING ANY METER OR ANY
CONNECTIONS TO SECURE UNAUTHORIZED OR UNMEASURED UTILITY SERVICE.
(c) PREVENTING ANY METER FROM PROPERLY MEASURING OR REGISTERING.
(d) KNOWINGLY TAKING, RECEIVING, USING OR CONVERTING TO PERSONAL USE OR
THE USE OF ANOTHER PERSON ANY UTILITY SERVICE WITHOUT AUTHORIZATION OR
CONSENT.
(e) CAUSING, PROCURING, PERMITTING, AIDING OR ABETTING ANY PERSON TO DO ANY
OF THE ACTS LISTED IN THIS PARAGRAPH.
13-3723 – page 4
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5. "UTILITY" MEANS ANY PUBLIC SERVICE CORPORATION, AGRICULTURAL
IMPROVEMENT DISTRICT OR OTHER PERSON THAT IS ENGAGED IN THE GENERATION,
TRANSMISSION OR DELIVERY OF ELECTRICITY, WATER OR NATURAL GAS, INCLUDING
THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE.
6. "UTILITY SERVICE" MEANS THE PROVISION OF SERVICES OR COMMODITIES BY THE
UTILITY FOR COMPENSATION.
QUESTIONS?
Thank you.