§708-839.5 Theft of utility services. (1) For purposes of this section:

"Customer" means the person in whose name the utility service is provided.

"Divert" means to change the intended course or path of utility services without the authorization or consent of the utility.

"Person" means any individual, partnership, firm, association, corporation, or other legal entity.

"Reconnection" means the reconnection of utility service by a customer or other person after service has been lawfully disconnected by the utility.

"Utility" means any public utility as defined in section 269-1, that provides electricity, gas, or water services.

"Utility service" means the provision of electricity, gas, water, or any other service provided by the utility for compensation.

(2) A person commits the offense of theft of utility services if the person, with intent to obtain utility services for the person's own or another's use without paying the full lawful charge therefor, or with intent to deprive any utility of any part of the full lawful charge for utility services it provides, commits, authorizes, solicits, aids, or abets any of the following:

(a) Diverts, or causes to be diverted utility services, by any means whatsoever;

(b) Prevents any utility meter, or other device used in determining the charge for utility services, from accurately performing its measuring function;

(c) Makes or causes to be made any connection or reconnection with property owned or used by the utility to provide utility services, without the authorization or consent of the utility; or

(d) Uses or receives the direct benefit of all or a portion of utility services with knowledge or reason to believe that a diversion, prevention of accurate measuring function, or unauthorized connection existed at the time of use or that the use or receipt was otherwise without the authorization or consent of the utility.

(3) In any prosecution under this section, the presence of any of the following objects, circumstances, or conditions on premises controlled by the customer, or by the person using or receiving the direct benefit of all or a portion of utility services obtained in violation of this section, shall create a rebuttable presumption that the customer or person intended to and did violate this section:

(a) Any instrument, apparatus, or device primarily designed to be used to obtain utility services without paying the full lawful charge therefor; or

(b) Any meter that has been diverted or prevented from accurately performing its measuring function so as to cause no measurement or inaccurate measurement of utility services.

(4) A person commits the offense of theft of utility services in the first degree in cases where the theft:

(a) Accrues to the benefit of any commercial trade or business, including any commercial trade or business operating in a residence, home, or dwelling;

(b) Is obtained through the services of a person hired to commit the theft of utility services; in which event, both the person hired and the person responsible for the hiring shall be punished under this section as a class C felony; or

(c) Accrues to the benefit of a residence, home, or dwelling where the value of the theft of utility services exceeds $750.

Theft of utility services in the first degree is a class C felony, and shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of at least $1,000 or two times the value of the theft, whichever is greater.

(5) A person commits theft of utility services in the second degree if the person commits theft of utility services other than as provided in subsection (4). Theft of utility services in the second degree is a misdemeanor and shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of $500, with an increase of $500 for each succeeding conviction under this subsection. [L 1996, c 256, §2; am L 2016, c 231, §41]

COMMENTARY ON §708-839.5

Act 256, Session Laws 1996, added this section, which establishes and defines the crime of theft of utility services. The legislature recognized that theft of utility services was widespread throughout the utility industry, that utility companies often spread the loss of revenues from the thefts to rate payers, and that attempting to steal utility services can pose a threat of physical injury to innocent persons and the thief. The legislature also acknowledged that current theft statutes do not specifically provide for thefts of utility services. The legislature found that a new type of theft needed to be established to deter the theft of utility services. House Standing Committee Report No. 1519-96, Senate Standing Committee Report No. 2062.

Act 231, Session Laws 2016, amended subsection (4) by raising the monetary threshold for the offense. The amendment implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).