Vehicle Code Section 2800.2 defines the offense as fleeing or attempting to elude a pursuing peace officer, and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property…” 1
Fleeing from the police right before you were about to be arrested and driving across town 70 miles per hour, including through the streets that you know have a lot of pedestrians on foot.
To prove that someon is guilty of this offense, the prosecutor has to prove the following facts or elements2:
- A peace officer in a motor vehicle was pursuing the defendant, who was also driving a vehicle3;
- While driving, the defendant “willfully” ﬂed from, or tried to elude, the pursuing peace officer4;
- During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property5
AND All of the following were true:
- There was at least one lighted 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: Defendant carjacked a car and was trying to get rid of the pursuing police officers by driving at over 90 miles per hour on the freeway. Once he exited the freeway, he entered a residential area, where he continued to speed and run through several stop signs before he was caught. Defendant can be charged with felony recklss evading under vehicle code 2800.2, in addition to “Carjacking” pursuant to Penal Code 215 . The defendant can also be charged with “Unlawful Driving or Taking of a Vehicle” under Vehicle Code 10851(a). Moreover, if the pursuit results in serious bodily injury to a police officer, the defendant can also be charged with “Evading an Officer Causing Injury or Death” under Vehicle Code 2800.3 as well as in a situation where the car that the defendant drive away is stolen.
Lack of Intent to Evade: If you did not intend to evade the officer, you cannot be convicted of this offense.
- You were faced with an emergency
- 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 were so drunk while driving that you did not realize that you were being pursued, or that you are being pulled over for that matter
However, keep in mind that even if you cannot be found guilty of this offense due to lack of intent to evade, if you were driving while you were intoxicated, you may still be charged with “Driving Under the Influence” (DUI) under Vehicle Code 23152 VC.
Although this offense is typically charged as a felony, it can also be charged as a misdemeanor, depending on the seriousness of the offense and defendant’s criminal history.
Misdemeanor: If charged as a misdemeanor, the defendant may face imprisonment of 6 months to 1 year in a county jail, and a fine of $1,000 to $10,000.
Felony: If charged as a felony, the defendant may face 16 months, or 2 or 3 years in the California state prison and fine.
Your Right to Operate Commercial Vehicles:
- First Violation
Pursuant to California Vehicle Code §15300,8 a driver of a commercial vehicle, such as taxi, bus, or big rig, who commits a violation involving a commercial motor vehicle, including a felony, will not be allowed to operate a commercial motor vehicle for a period of 1 year if the driver is convicted of a first violation.
- Second Violation
Pursuant to California Vehicle Code §15302,9 a driver of a commercial vehicle who is convicted of more than one violation involving a commercial motor vehicle, including a felony, will not be allowed to operate a commercial motor vehicle for the rest of his or her life.
- Violation Involving Controlled Substances
Pursuant to California Vehicle Code §15304, “[a] driver may not operate a commercial motor vehicle for the rest of his or her life if he/she uses a motor vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance…” even if it is a first time offense.
Your Right to Own/Possess/Acquire/Receive Firearms
A conviction of Felony Reckless Evading charged as a felony, will result in you being prohibited to “…own, possess, acquire, or receive…” firearms for life pursuant to Penal Code 29800 ((Penal Code 29800 PC California’s felon with a firearm law. (“(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country.and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”)) – that sets out California’s law concerning “felons with a firearm.”
Resisting Arrest: Pursuant to the Penal Code section 148, 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 148 ((See also penal code 148 pc. Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment))
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.
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.
Unlawful Driving or Taking of a Vehicle: Pursuant to Vehicle Code 10851(a), 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.
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
Our attorneys have over 25 years of combined experience as both prosecutors and defense attorneys. We have successfully defended evading cases and we can help your case. If after reading this article you would like to discuss a pending case please contact the Aizman Law firm at 818-351-9555 for a free consultation.
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- Vehicle Code 2800.2 VC Felony reckless evading. (“(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. (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 [↩]
- Vehicle Code 2800.2 [↩]
- 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. [↩]
- 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. [↩]
- 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, (2) and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage. Willful or Wanton Disregard. People v. Schumacher (1961) 194 Cal.App.2d 335, 339–340 [14 Cal.Rptr. 924]. Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point. Three Violations or Property Damage as Wanton Disregard—Deﬁnitional. People v. Pinkston (2003) 112 Cal.App.4th 387, 392–393 [5 Cal.Rptr.3d 274]. [↩]
- 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]. [↩]
- 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]. [↩]
- California Vehicle Code 15300 VC — First time violations; hazardous material violations. (“(a) A driver of a commercial motor vehicle may not operate a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of any of the following.(10) A violation of Vehicle Code Section 2800.1, 2800.2 [California’s felony reckless evading law], or 2800.3 that involves a commercial motor vehicle.” [↩]
- California Vehicle Code 15302 VC — More than one violation. (“A driver of a commercial motor vehicle may not operate a commercial motor vehicle for the rest of his or her life if convicted of more than one violation of any of the following.(j) A violation of Section 2800.1, 2800.2, or 2800.3 that involves a commercial motor vehicle.” [↩]