Those aren’t slightly different cases - they are direct examples of theft of services. Those cases involve eating the food and then not paying for it. I don’t think anyone is arguing that isn’t a theft of service. Ordering food at a drive up window and then deciding you don’t want it is not a theft of service. It might be illegal based on local statutes and if so they would almost surely be based on an intention to cause a loss, do mischief, not to commit a theft or receive a gain. The only thing the customer/suspect would be gaining is some entertainment or revenge, but they aren’t ending up with free food or services.
First, you can infer intent from conduct. If you were going to order 50 tacos, wouldn’t you make sure you had your wallet on you? If you forgot it, wouldn’t you go inside and tell the clerk that you forgot in and would be right back to pay? What about your guests that were waiting for the tacos? You just let them go hungry instead of going back?
In criminal law, those inferences can be made.
Second, sure there is no communication after the price is given because in a usual and reasonable transaction, the price given matches the price posted on the tote board. If the sign said “Hot Dogs—$1.00,” you ordered three, and the clerk said, that will be $77.84, what would a reasonable person do? Drive off? Or point out that the sign says $1 each?
Again, these inferences can be made, and unless the price quoted is not what is listed on the board, then the inference of acceptance can be made.
Even if true, and I doubt that, it would have no impact on state laws.
They did cook for you which is a service. Would you suggest that if they delivered the food, but you didn’t eat it that they didn’t do anything for you?
Taco Bell cooks more-or-less to order. How far along on the order (assuming drive-thru) could they have been before they noticed that no one had pulled up to the first window to pay for it?
That is exactly what I would suggest if the reason for deciding not to buy the food was legitimate and they didn’t make the order simply to cause the restaurant a loss. It is up to the restaurant to begin preparing the food in advance if they choose to take the risk that the person might change their order by the time they get to the window, examine the food and decide they don’t want it, decide the service wasn’t prompt enough and drive off, etc. As I noted already, some restaurants don’t cook the food to order. They have a bunch of food items already prepared and wrapped sitting under a heat lamp. At the end of the day, if they have some left over is anyone in the general public guilty of theft of service for not going there and buying the burgers the restaurant anticipated that they might? Some restaurants might cook one item to order but have a huge vat of french fries, frozen desserts, and other elements of the order already prepared in advance. Is only part of the order a theft of services if you get a phone call that you need to get back to work while you’re waiting in line and leave before getting your order?
I don’t think this is a case where those inferences could be made. You could also say “Nevermind” after the price is quoted. That wouldn’t be a crime. And what if order taker doesn’t hear it? Ordering the food in the first place can’t be construed to construct intent to criminally run away without paying afterwards. This is not the same as carrying burglary tools.
Serious, albeit tangential, question: If a restaurant has bagged up a customer’s order, but the customer hasn’t driven around to claim it, can they “re-use” the fries, frozen desserts, or whatever by giving them to a different customer, or do they have to dispose of them?
@TriPolar and Crazyhorse.
Everything that both of you said could be used in your defense to the charge of theft of services. Generally, the inference can be made that if you order food at a restaurant, you will wait to receive it. Especially a large order like in the OP.
Now, if you didn’t like the food you received, service was slow, you were called away in an emergency, you didn’t like the price even though it was posted, etc., those would be factors that someone along the line would listen to. The arresting officer, the prosecutor, the grand jury, the judge, and finally the jury are your safeguards to an unjust conviction on these facts.
But given the facts in the OP, I would guess that all of those above would agree that these are punk kids who tried to defraud the restaurant.
Duplicate.
For the record (about reclassifying fast food work as manufacturing):
http://www.cbsnews.com/stories/2004/02/20/politics/main601336.shtml
Did you read my last post? I thought it stated pretty clearly that the laws on theft of services tend to include a provision that intent is presumed if someone fails to pay for restaurant, hotel, or similar services. Facebook posts need never enter into it – the fact that someone acquired restaurant services and failed to pay is sufficient to prove intent according to the black-and-white letter of the law. That presumption may of course be rebutted.
I was using that example to comment on the issue of intent and how it is presumed to apply under certain statutes. It was obviously not a commentary on the facts of the case in the OP.
Please read the Texas statute I quoted early in this thread. I think I’ve been reasonably clear that the Texas statute seems to indicate that a perpetrator need not benefit from the theft under that statute (because it requires only that services be “secured,” as opposed to “delivered” or “enjoyed”) but that other states may have different definitions than Texas.
Isn’t this why so many drive thrus have two windows? You order, pull up to window 1 and pay, get the food at window 2.
No pay and there’s no food at window 2. 
Nothing wasted.
I did. The relevant (I think) part of the code you are citing says:
That just says if you accept a service and then leave without paying for it, it is assumed your intent is avoid paying. It doesn’t say anything about if you leave before the service is ever provided to you. The service being secured at a fast food restaurant is a bag full of food, not whatever preparations the restaurant makes in advance of receiving your payment. You are entitled to refuse the food and leave, with no food, and no payment, and no theft.
A reasonable view, but I disagree. I believe “secure” to mean something in the sense of to order, reserve, direct, or guarantee. I do not believe “secure” means to accept, receive, consume, or enjoy. That is why I have stated that I believe the Texas law to be of broader application than other theft of service laws that I have read.
If we accept that, which I really won’t fight too hard not to, the wording is subject to interpretation - it still goes back to what I originally said: it would be their intention that determined if it were a crime under this statute or just a consumers right to change their mind.
It says “intentionally or knowingly secures performance of the service by deception, threat, or** false token**;”
So assuming your interpretation of “secures” is correct, this still wouldn’t fit the statute if, for example, they made an order but honestly realized they had forgotten their wallet and just drove off. Nor if they saw a rat run through the restaurant while they were waiting in line and decided to take off, nor if they just had a change of heart and decided they wanted to go for pizza instead. Only if they came in with the specific INTENTION of making the order just to walk out on it would it be a crime under this statute which is what I speculated would be the case.
Some of the original “cone-ing” was kinda cute and funny and what’s mostly on YouTube is fine, but it devolved, as things like this are wont to do, and some folks thought it was even funnier to grab the cone and then drop it or fling it. Also “cup-ing” which was sort of funny and at most resulted in just some splashing, until that devolved (didn’t have far to go) as well, and drive-through operators started to get wet. I think a lot of those vids got pulled, but there are quite a few where it’s obvious that the operator is very wary of a car full of people ordering one or two small things only, and a video camera held by the passenger. I’ve seen a few vids where the drive-through person sees the camera and doesn’t want to hand the product over to the driver unless the driver swears he’s not going to do anything.
Of course, I can’t find any examples at this moment…
The law I quoted has in black and white text that if someone dashes from a restaurant, they are presumed to have the intent necessary to be found guilty.
If the teenagers can show sufficient evidence to rebut that presumption, of course they are not guilty.
After they eat, not after they place an order but haven’t yet received any food.
Well, if we are just going to have to repeat the same things over and over, there’s no point in continuing. The Texas law does not appear to require consumption of food, other states may do so.