Evading a Police Officer Laws

Vehicle Code Section 2800.1

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Definition of Evading a Police Officer

The Vehicle Code 2800.1  defines the offense as: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle…” 1 Usually the pursuing peace officer’s “motor vehicle” is a car or motorcycle, although a person can violate this offense by evading a police officer who is on a bicycle.2

How Does the Prosecutor Prove Evading a Police Officer?

To prove that someone is guilty of this offense, the prosecutor has to prove the following facts or elements3):

  • A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle4;
  • The defendant intended to evade the peace officer;
  • While driving, the defendant “willfully” fled from, or tried to elude, the pursuing peace officer5
  • Note, that the prosecutor has to prove that you fled “willfully,” meaning that you intended to flee from the pursuing officer.  Because this is a “specific intent” offense, if it was not clear whether your intent was to flee from the pursuing officer, the prosecutor will not be able to charge you with the offense.

Example: If you saw the police officer behind you, but thought he/she was pursuing the car next to you and you sped up to get out of the way, you cannot be charged with the offense, because in speeding to get out of the way, your intent was not to flee the pursuing officer. AND All of the following were true:

  • There was at least one lit red lamp visible from the front of the peace officer’s vehicle;
  • The defendant either saw or reasonably should have seen the lamp;
  • The peace officer’s vehicle was sounding a siren as reasonably necessary;
  • The peace officer’s vehicle was distinctively marked6; AND
  • The peace officer was wearing a distinctive uniform7

Example: A police officer in a police uniform was on duty when he stopped a car that ran a stop sign.  The officer exited his distinctly marked police car and went to talk to the driver.  The driver rolled down his window, preparing to talk to the police officer.  However, before the officer reached the car, the driver suddenly took off quickly.  The officer ran back to his car and started pursuing the fleeing driver.  When the driver realized he was being pursued, he sped up and eventually entered a freeway.  Defendant can be charged with evading a vehicle operated by a pursuing peace officer under Vehicle Code 2008.1(a).  He may also be charged with “Unlawful Driving or Taking of a Vehicle” under Vehicle Code § 10851(a) in a situation where the car that the defendant drove away was stolen.

Legal Defenses

Lack of Intent to Evade:  

To convict you of the offense, the prosecutor will have to show that you had intent to flee the pursuing officer.  If you were speeding on the freeway and saw a police car behind you in the distance, but did not know that it was pursuing you, you may have a valid defense.

Similarly, if you were so drunk while driving that you did not realize that you were being pursued, your attorney can argue this defense.  Although the prosecutor may decide you should not be charged with this offense if you were so intoxicated that you could not form the intent to evade, you will still be charged with Driving Under the Influence (DUI) under Vehicle Code 23152(a) VC.

Penalties & Punishment for Evading a Police Officer

PenaltyMisdemeanor
FineMax fine of $1,000
Vehicle ImpoundedPossible for up to 30 Days
County JailUp to 1 year

Related Offenses and Aggravating Factors

  •  Resisting Arrest

Penal Code 148 PC California’s “resisting arrest” law a defendant who resists, obstructs, or delays a law enforcement officer in the performance of his/her duty, may be charged with the offense of Resisting Arrest under Penal Code section 148 Example:  Fleeing from a police officer while the officer is trying to arrest you. If convicted of this offense, a defendant can face being charged a fine not exceeding one thousand dollars ($1,000), and/or imprisonment in a county jail not to exceed one year.

  • Felony Reckless Evading: 

Under Vehicle Code 2800.2 California’s “Felony Reckless Evading” law If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle will be charged with the offense.8 .  If the fleeing person was intoxicated they may also be charged with driving under the influence.

Example:  Fleeing from the police right before you were about to be arrested and driving across town 70 miles per hour, including through streets that you know have a lot of pedestrians on foot.  Upon conviction, a defendant will be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.  The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.

  • Evading a Peace or Police Officer Causing Serious Injury or Death:

Serious Injury:  Pursuant to Vehicle Code section 2008.3, whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 causes serious bodily injury to any person, the defendant can face imprisonment in the state prison for up to 3, 5, or 7 years, or imprisonment in a county jail for not more than 1 year, or a fine of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), or both that fine and imprisonment. Death: Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years.  Charges of gross vehicular manslaughter or negligent vehicular manslaughter whicle intoxicated may also be triggered in such a scenario if the driver was intoxicated. Unlawful 

  • Driving or Taking of a Vehicle:

Pursuant to Vehicle Code § 10851(a),9 any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing. 

Example: Fleeing from the police in a stolen car. If convicted of this offense, a defendant, will be guilty of a public offense and, upon conviction will be punished by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code, or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

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Footnotes

  1. Vehicle Code Section 2800.1 a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp .(2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. (3) The peace officer’s motor vehicle is distinctively marked. (4) The peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform. (b) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s bicycle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if the following conditions exist: (1) The peace officer’s bicycle is distinctively marked. (2) The peace officer’s bicycle is operated by a peace officer, as defined in paragraph (4) of subdivision (a), and that peace officer is wearing a distinctive uniform. (3) The peace officer gives a verbal command to stop. (4) The peace officer sounds a horn that produces a sound of at least 115 decibels. (5) The peace officer gives a hand signal commanding the person to stop. (6) The person is aware or reasonably should have been aware of the verbal command, horn, and hand signal, but refuses to comply with the command to stop. []
  2. Vehicle Code Section 2800.1. []
  3. California Vehicle Code Section 2800.1(a []
  4. To a peace officer ((A “peace officer” is anyone who is engaged in the duty of law enforcement, including but not limited to the following persons: CHP officer (California Highway Patrol), police officer, sheriff, marshal or deputy marshal of a superior court or county, port warden or port police officer, any inspector or investigator employed in such capacity in the office of a district attorney.  Pen. Code, § 830 et seq. []
  5. 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. []
  6. 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.  Distinctively Marked Vehicle. People v. Hudson (2006) 38 Cal.4th 1002, 1010–1011 [44 Cal.Rptr.3d 632, 136 P.3d 168]. []
  7. 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.  Distinctive Uniform. People v. Estrella (1995) 31 Cal.App.4th 716, 724 [37 Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75 Cal.Rptr.2d 289]. []
  8. If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine. (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs. []
  9. Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. (b) If the vehicle is (1) an ambulance, as defined in subdivision (a) of Section 165, (2) a distinctively marked vehicle of a law enforcement agency or fire department, taken while the ambulance or vehicle is on an emergency call and this fact is known to the person driving or taking, or any person who is party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, or (3) a vehicle which has been modified for the use of a disabled veteran or any other disabled person and which displays a distinguishing license plate or placard issued pursuant to Section 22511.5 or 22511.9 and this fact is known or should reasonably have been known to the person driving or taking, or any person who is party or an accessory in the driving or unauthorized taking or stealing, the offense is a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years or by a fine of not more than ten thousand dollars ($10,000), or by both the fine and imprisonment. (c) In any prosecution for a violation of subdivision (a) or (b), the consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of the owner’s consent on a previous occasion to the taking or driving of the vehicle by the same or a different person. (d) The existence of any fact which makes subdivision (b) applicable shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury. (e) Any person who has been convicted of one or more previous felony violations of this section, or felony grand theft of a vehicle in violation of subdivision (d) of Section 487 of the Penal Code, former subdivision (3) of Section 487 of the Penal Code, as that section read prior to being amended by Section 4 of Chapter 1125 of the Statutes of 1993, or Section 487h of the Penal Code, is punishable as set forth in Section 666.5 of the Penal Code. The existence of any fact that would bring a person under Section 666.5 of the Penal Code shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere, or by trial by the court sitting without a jury []

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