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Evading Police

EVADING POLICE CHARGES IN CALIFORNIA 

California law requires a motorist to pull their vehicle to the side of the road whenever directed to do so by police. If a motorist refuses to pull over after being directed to do so, then the motorist may be guilty of evading a peace officer. Evading police can either be charged as a misdemeanor or a felony.

 

Misdemeanor evading is charged pursuant to Vehicle Code §2800.1, while felony evading is charged pursuant to Vehicle Code §2800.2. The charges are very similar in that both deal with motorists attempting to evade or elude police, however, felony evasion also requires that the motorist operate the vehicle with “willful and wanton disregard for the safety of persons or property.”

What does the prosecutor need to prove to convict you of Vehicle Code §2800.1?

To find you guilty of misdemeanor evading police pursuant to Vehicle Code §2800.1, a jury must find all of the following true beyond a reasonable doubt:

  1. A peace officer driving a motor vehicle was pursuing you;

  2. You willfully tried to elude or flee from the officer;

  3. There was at least one lighted red lamp visible from the front of the peace officer’s vehicle;

  4. You either saw or reasonably should have seen the lamp;

  5. The peace officer’s vehicle was sounding a siren as reasonably necessary;

  6. The peace officer’s vehicle was distinctively marked; AND

  7. The peace officer was wearing a distinctive uniform.

 

Marked Vehicle:  A vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers, including a red lamp, siren, and at least one other feature that makes it look different from vehicles that are not used for law enforcement

purposes.

 

Distinctive Uniform:  A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge, without more, is not enough.

 

Willfulness:  Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

What are the penalties if you are convicted of violating Vehicle Code §2800.1?

If convicted of Vehicle Code §2800.1, the defendant is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year. The defendant may also face up to a $1,000 fine and the vehicle used as the instrument in evading the police may be impounded for up to 30 days.

What does the prosecutor need to prove to convict you of Vehicle Code §2800.2?

To find you guilty of Vehicle Code §2800.2, a jury must find all of the following to be true beyond a reasonable doubt:

  1. You eluded police in violation of Vehicle Code §2800.1, discussed above; AND

  2. In doing so, you do one of the following:

  • Operated the vehicle in “willful and wanton disregard for the safety of persons or property”;

  • Caused property damage; OR

  • During the pursuit, you committed three or more traffic violations, each of which would make you eligible for a traffic violation point.

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Wanton Disregard:  A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm,  AND (2) he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.

What are the penalties if you are convicted of violating Vehicle Code §2800.2?

Although, Vehicle Code §2800.2 is commonly referred to as “felony evading”, it is actually a “wobbler” offense. A wobbler is a charge that grants the prosecutor discretion to charge the violation either as a misdemeanor or as a felony. Although prosecutors have that discretion, a violation of Vehicle Code §2800.2 will almost always be charged as a felony.

 

If convicted as a felony offense, the defendant faces the following punishment:

  1. Imprisonment in the state prison for 16 month, 2 years, or 3 years;

  2. A fine between $1,000 and $10,000;

  3. Or, both the fine and imprisonment.

 

If convicted as a misdemeanor offense, the defendant faces the following punishment:

  1. Confinement in the county jail for not less than 6 months nor more than one year.

  2. A fine between $1,000 and $10,000;

  3. Or, both the fine and confinement.
     

**Note: Although a prosecutor can elect to charge the defendant with a felony violation of Vehicle Code §2800.2, a judge has the ability to reduce the violation from a felony to a misdemeanor and any time of the proceedings. 

What are some defenses to evading police?

No Intent to Evade:  As mentioned above, the defendant must willfully intend to evade officers. Thus, if a defendant was simply trying to get to a safer location before pulling over, then it cannot be said that the defendant was “intending to evade police” when s/he failed to stop their vehicle.

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Vehicle Not Properly Marked:  If the officer’s vehicle does not look different than other regular vehicles, then you cannot be convicted of evading police. For example, if the vehicle was an undercover vehicle with no special features to distinguish it from other vehicles on the road, then the defendant cannot be convicted of evading.

 What should you do if charged will evading police?

 A violation of Vehicle Code §2800.1 or Vehicle Code §2800.2 are very serious offenses. It is always advised that you hire an attorney BEFORE going to court. By the time of your first court appearance, the district attorney assigned to prosecute you will already have prepared their case against you. It is important you hire an attorney before the hearing to get a head start on your defense.

 

Attorney John-Patrick Mullen-Lujan has extensive knowledge and experience handing criminal cases throughout Southern California. If you or someone you know has been charged with evading police, call Attorney Mullen-Lujan to schedule your free consultation today.

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