Law Offices of Elliott Kanter
What is the Legal Definition of “Evading an Officer”?
The California Vehicle Code (VC) Section 2800 explains your legal responsibility to comply with Peace Officer Orders. A violation of this code is commonly known as misdemeanor evading, which is a lesser charge than felony reckless evading. Although both “evading” charges are closely related to the “resisting arrest” law, they are separate offenses.
VC 2800 states:
It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace poliice is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code.
Who is considered a Peace Officer?
According to the California Penal Code mentioned above a peace office may be a
- deputy sheriff
- chief of police of a city
- chief, director, or chief executive officer of a consolidated
- municipal public safety agency that performs police functions,
- police officer
- police officers of the San Diego Unified Port District Harbor Police
- any marshal or deputy marshal of a superior court or county
- a port warden or port police police of the Harbor Department of the City of Los Angeles
- an inspector or investigator employed in that capacity in the office of a district attorney
Misdemeanor evading takes place when you evade or flee from a peace police who is pursuing you either In a marked motor vehicle (which includes police cars and motorcycles), or on a bicycle.
There are several elements of the crime that must be proven before you can be charged with evasion. The prosecutor must show that:
- you willfully fled or otherwise attempted to elude a peace officer
- you did so with the specific intent to evade that officer
- the officer’s vehicle exhibited at least one lit red lamp that was visible from the front
- you saw or reasonably should have seen the lit lamp
- the officer sounded his/her siren as reasonably necessary
- the officer’s vehicle was distinctively marked
- the officer who was driving was wearing a distinctive uniform.
If you have been charged with VC 2800 there are several defenses that can be used to argue your case. If you did not willfully or intentionally evade the officer, or if there is insufficient evidence of the elements listed above, you may be able to have the charges dropped.
However, if there was “willful or wanton disregard for the safety of others” while evading an officer, the violation will be considered a felony. It is commonly known as “felony reckless evading”; and if charged, this crime carries a mandatory jail or prison sentence.
California V C Section 2800.2 states:
2800.2. (a) 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.
If you are aware that your actions present a considerable and uncalled-for risk or harm, but you intentionally ignore that risk, you are acting with wanton disregard for the safety of others and property.
As stated below in VC 2800.2b , driving with a willful or wanton disregard for safety may include (but is not limited to):
- committing three or more traffic violations that are each assigned a traffic violation point by the DMV. (Failure to yield doesn’t count towards this minimum, as it is necessarily included in the act of evading)
- causing damage to property
VC 2800.2(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.
Your criminal defense lawyer could present the following defenses on your behalf:
- You didn’t intend to evade the officer.
- There was insufficient evidence for your arrest.
- The arrest was based on an illegal stop. There must be a reasonable suspicion that you are or were engaged in criminal activity.
What if There Was An Injury or Death While Evading An Officer?
In California, Vehicle Code 2800.3 defines the crime of causing serious bodily injury or death to another person while evading or attempting to evade an officer. The violation of VC 2800.3 is often a “wobbler”, which means that the prosecution can elect to file the charge as either a misdemeanor or a felony, depending on the specific facts of the case and one’s criminal history. If there is serious injury to another person, the charge may be prosecuted as either a misdemeanor or a felony. If the evading violation causes death to another person, the charge is an automatic felony.
The “Evading an Officer Causing Injury or Death” Law states in California Vehicle Code 2800.3:
2800.3. (a) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, five, or seven years, by imprisonment in a county jail for not more than one year, or by a fine of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment.
(b) Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately 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.
“Serious bodily injury” is defined in the California Penal Code Section 243.
It means that there is a serious impairment of one’s physical condition, including, but not limited to, the following:
- loss of consciousness
- bone fracture
- protracted loss or impairment of function of any bodily member or organ
- a wound requiring extensive suturing
- serious disfigurement
As stated in VC 2800.3 above, if you are convicted of injuring another person as a misdemeanor, you face up to one year in a county jail and $2,000 to $10,000 in fines. If you are convicted of injuring another person as a felony, you face three, five, or seven years in the California state prison. If you are convicted of evading an officer and killing another person, you face four, six, or ten years in the state prison.
Call our office today to speak with attorney Elliott N. Kanter. Mr. Kanter has over 30 years’ experience in Criminal Defense Law in San Diego and Southern California. Fill out the on line form or call for a free and confidential consultation.
This article is for education purposes only. It does not create a client-attorney relationship.