A person commits the offense of theft of service when he or she, with the intent to avoid payment for a service that is provided only for compensation: (1) intentionally or knowingly secures the performance of the service by deception, threat, or false token; (2) intentionally or knowingly diverts the service to his or her own use; (3) holds personal property beyond the expiration of a rental period; or (4) intentionally or knowingly obtains the performance of the service by agreeing to provide compensation and fails to make payment after receiving notice of a demand for payment.
The word “service” for purposes of the offense of theft of service means labor and professional service; telecommunication, public utility, or transportation service; lodging, entertainment, or restaurant service; or the use of a motor vehicle or other property. The word “service” usually involves a combination of labor and property. Where labor and property is combined, the theft of the entire process constitutes a theft of service. Where labor and property can be separated, a theft of the labor must be prosecuted separately from a theft of the property.
The essential element for the offense of theft of service is an intent to avoid payment for the service. A mere failure to pay for the service does not constitute theft of service. There must be an initial intent to avoid payment. Otherwise, a person could be prosecuted for merely failing to pay a debt.
An indictment for the offense of theft of service must allege the elements of the offense, that is, an intent to avoid payment for a service that is provided for compensation. The indictment should describe the nature of the service, such as a restaurant bill, a hotel bill, or an automobile rental. The indictment should also allege from whom the service was taken and to whom payment should have been made.
An intent to avoid payment is presumed when a defendant absconds from an establishment and refuses to pay for a service, such as a restaurant or a hotel bill. The defendant absconds from the establishment when he or she flees or leaves in a clandestine manner. An intent to avoid payment is also presumed when the defendant fails to return property under a rental agreement after receiving notice of a demand for payment. The notice must be in writing and must sent by registered or certified mail. An intent to avoid payment is further presumed when the defendant returns property after a rental agreement has expired and fails to pay the additional rental amount.
The offense of theft of service by deception requires more than a mere failure to perform a promise that induced a person to provide the service. Evidence of a defendant’s intent to deceive must be proven. One example of an intent to deceive is a defendant’s promise to pay for a service and the defendant’s payment for the service with a bad or worthless check. However, the bad or worthless check must be presented prior to the rendering of the service. It is the presentation of the bad or the worthless check prior to the rendering of the service that induces the rendering of the service by deception. If the check is presented after the rendering of the service, there is no theft of service. The defendant can nevertheless be prosecuted for issuing a bad or a worthless check.
The offense of theft of service is punished in accordance with the value of the service that is stolen. If the value of the service is less than a certain statutory amount, the offense is punished as a misdemeanor. If the value of the service is greater than a certain statutory amount, the offense is punished as a felony. Value of the service means the fair market value of the service at the time of the offense.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.