presumptive evidence

PRESUMPTIVE EVIDENCE

Getting it on the BooksJohn CulwellSecurity Section LeaderArizona Public Service Company

We’ve All Seen This Before

Have a good case Secure the scene Call the police Await PD response

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

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

No Brainer???

What Do We Do?

Spend hours explaining “theft of service” Stop calling PD Pull our hair out

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

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.