Being pulled over by a law enforcement officer can be incredibly stressful. From the moment those lights flash behind them, a driver's mind starts to race through worries. Informed motorists know it's best to remain calm and simply look for a safe place to pull over. The same principle applies to other legitimate police commands outside a vehicle as well. When police officers ask people to do something (or stop doing something), it is in their best interest to follow orders.
Sometimes drivers do not pull over for police in spite of sirens and flashing lights. This greatly increases the danger to everyone involved. Whether it is the long, slow police chase in Los Angeles of O.J. Simpson and Al Cowlings in the Ford Bronco or the teen driver who thinks they can outrun the cops, fleeing from the police raises the stakes.
People who don't follow through after a lawful order to stop can face criminal charges for evading, fleeing, or eluding a law enforcement officer. These are state law criminal charges, which could be prosecuted as a misdemeanor or a felony depending on the jurisdiction and circumstances of the incident.
This article provides an overview of state laws that criminalize evading or fleeing the police. It covers the elements of the crime. It also discusses possible penalties and legal defenses.
Evading the Police: Criminal Elements and Penalties
To prove a charge of evading or eluding police, the prosecution must establish several different facts about the incident. State laws may have different requirements. For example, in some states, the prosecutor might be required to show that the police car in pursuit was distinctively marked or that the officer was in full uniform. Similarly, it might be required that the officer's vehicle had used some particular combination of lights and sirens as part of the demand to stop.
If vehicles are not involved, the officer must signal an order either verbally, via a hand gesture, or through some other means that is clear to the individual being pursued. These factors can make a tremendous difference in the outcome of the case.
The prosecution must establish beyond a reasonable doubt all the “elements" of the crime. Sometimes a state may have criminal violations in both the penal code and the transportation or traffic code.
Texas provides a good example. The Texas Transportation Code outlines the crime of fleeing or attempting to elude police. To prove this crime, the state must show all of the following:
- The defendant was operating a motor vehicle.
- The defendant willfully failed or refused to bring a vehicle to a stop; fled; or attempted to elude a pursuing police vehicle.
- The defendant was given a visual or audible signal (by hand, voice, emergency light, or siren) by a peace officer for the traffic stop.
- The officer was in uniform, with their badge displayed prominently.
- The police vehicle bore the insignia of the law enforcement agency.
This traffic offense is normally a Class B misdemeanor. It subjects an offender to up to 180 days in jail and/or a $2,000 fine.
The offense becomes a Class A misdemeanor if the offender recklessly places another person in imminent danger of serious bodily injury. The law presumes that an offender who is driving under the influence (DUI) has recklessly caused imminent danger of such harm. For a Class A misdemeanor, the offender can face up to one year in jail and/or a $4,000 fine.
Yet the Texas Penal Code also lists an offense called evading arrest or detention. This similar crime contains the following elements:
- The defendant intentionally flees.
- They are fleeing from a known peace officer or federal special investigator.
- The official is attempting to arrest or detain the defendant.
This crime is a Class A misdemeanor in most cases. Misdemeanor evading elevates to a felony under certain circumstances under these conditions:
- The offense is a state jail felony if the defendant has a prior conviction or uses a watercraft to flee.
- It's a third-degree felony if the defendant uses a vehicle to flee; if someone else is seriously injured as a direct result of the officer's attempt to apprehend the fleeing defendant; or if the defendant uses a tire deflation device against the officer while in flight.
- The crime rises to a second-degree felony if someone else dies as a result of the officer's efforts to capture the defendant or is seriously hurt by a tire deflation device that the defendant deployed against the officer.
This law provides that someone fleeing an arrest can face more serious penalties based on the conduct involved in the incident. While fleeing on foot can lead to a misdemeanor, fleeing after a prior conviction or by using a vehicle or watercraft elevates the offense to a felony. A state jail felony subjects an offender to six months to two years in jail, a $10,000 fine, or both. A third-degree felony can result in 2-10 years in state prison, a $10,000 fine, or both. A second-degree felony may net 2-20 years in prison, a $10,000 fine, or both.
While the elements listed above often refer to an officer in a vehicle, the same principles can apply to legitimate police commands that do not involve vehicles. In such cases, individuals who fail to heed a clear police command — whether verbal or otherwise made reasonably clear by a distinctively marked officer (wearing a police uniform, showing a badge) — may be charged with evading police.
In many states, the basic crime is a misdemeanor offense. Certain aggravating factors may elevate the crime to a felony. If the conduct caused or posed a significant risk of causing property damage or serious bodily injury, those elements may lead to felony charges.
In California, the state also addresses the issue of evading the police in both the traffic and criminal statutes. The California Vehicle Code sets forth the elements of the crime flight from a pursuing peace officer. A defendant, operating a motor vehicle with the intent to evade authorities, willfully flees or tries to elude a pursuing peace officer's motor vehicle. All these conditions must also exist:
- The officer's vehicle has at least one lighted red lamp visible from the front that the defendant sees or should see.
- The officer's vehicle is sounding a siren as necessary.
- The officer's vehicle is distinctly marked.
- A peace officer in uniform is operating the vehicle.
The crime is a misdemeanor and subjects an offender to up to one year in county jail.
A separate section sets forth the conditions needed for a charge of fleeing a peace officer on a bicycle. If the offender drives in a manner that shows a willful or wanton disregard for the safety of persons or property, the penalties increase. This offense is often called felony reckless evading. It yields a prison sentence of six months to a year in state prison or county jail and a possible fine of $1,000 to $10,000. The mandated prison sentence increases if the offender's conduct is the proximate cause of serious bodily injury or death to anyone.
Under California Penal Code 148, state law also provides the crime of resisting arrest. This offense prohibits a person from willfully resisting, delaying, or obstructing a peace officer or EMT from doing their job. That statute provides for penalties of up to one year in jail and/or a $1,000 fine. The punishments are elevated if the offender tries to remove a weapon from the officer. If the weapon is a firearm, the state must show the offender's specific intent to obtain the firearm from the officer.
A criminal charge of fleeing or evading the police may be either a misdemeanor or felony charge, depending on the circumstances. In either case, penalties depend on the severity of the crime. They may also include a driver's license suspension of one year or more.
Possible Defenses to Evading Police
Not every charge that arises from fleeing police will result in a conviction. There are several possible defenses for a criminal charge of evading or eluding police.
Lack of Intent
A prosecutor needs to prove intent — mens rea, in legal jargon. The prosecutor must show that the defendant intentionally committed the acts in question.
Mistaken Identity or Alibi
The prosecution needs to prove who was driving the vehicle. If the officer fails to identify the driver properly, or if the defendant has reliable evidence that they were somewhere else at the time, the prosecution's case can be defeated.
Duress or Threats
If a carjacking victim speeds away from police at the urging of a robber holding them at gunpoint, that person can likely assert the legal defense of duress even though they may have technically satisfied every element of the statute.
In some jurisdictions, a person rushing to the hospital because of a serious medical emergency could assert a legal defense for failing to stop at a police signal. Whether the defense was available or not, the judge or jury will likely weigh such a claim based on the circumstances presented. Even those found guilty of evading police may find that evidence they acted on a perceived necessity could reduce punishment as a mitigating factor.
Risk of Harm
A defense attorney may attack the state's evidence on whether traffic violations occurred that placed the safety of others into question. Depending on the facts, this may mean the difference between a misdemeanor and a felony offense.
Get Legal Help Defending Against Your Eluding Police Charges
Whenever you are facing criminal charges, it is wise to consult with a criminal defense lawyer. A charge of evading police can carry serious consequences. An experienced attorney can review the facts of the case in light of the law and seek a fair resolution on your behalf. This may include dismissal or an appropriate plea bargain. You can get legal help by finding an experienced criminal defense attorney near you.