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
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
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
What Do We Do? • Spend hours explaining “theft of service” • Stop calling PD • Pull our hair out
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
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
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
“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
“Presumptive Evidence” • 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”
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
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
Testify • 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
Apparent Success? • “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
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)
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
13-3723. Obtaining utility service fraudulently; classification; definitions • 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 • 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 • 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 • 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.