The Criminal Docket


December 2006

Volume I, Number 7

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Evading a Peace Officer

California statutory and case law have established black and white requirements to convict an individual of evading a peace officer.

Statutory Requirements:  Vehicle Code section 2800.1(a) states that it is a misdemeanor if one drives a motor vehicle, with the intent to evade or wilfully flee or attempt to evade a police officer’s vehicle if all of the following requirements are met: 1) the officer’s vehicle has activated at least one red light visible from the front that the driver either sees or can reasonably be expected to see; 2) the officer is sounding a siren as may be reasonably necessary;  3) the police vehicle is distinctively marked; and 4) the police vehicle is being operated by an officer wearing a distinctive uniform.  Section 2800.2(a) prohibits an individual from driving in violation of Section 2800.1 if the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.  “Willful or wanton,” according to subsection (b) includes an individual who evades a pursuing peace officer and commits at least three traffic violations or causes property damage.  Section 2800.3 provides punishment alternatives if a violation of section 2800.1 results in death or serious bodily injury.  “Serious bodily injury” is defined in Penal Code section 243(f)(4) as a serious impairment of physical condition, including loss of consciousness, bone fracture, protracted loss or impairment of any bodily member, and serious disfigurement.  Section 2800.1 is a lesser-included offense of Section 2800.2. (People v. Springfield (1993) 13 Cal App 4th 1674)

Red Light Requirement: Vehicle Code section 25252 requires that every emergency vehicle be equipped with a minimum of one steady burning red light visible from at least 1,000 feet to the front of the vehicle.  In addition, the emergency vehicle may display revolving, flashing or steady read lights positioned to the front, sides or rear of the vehicle.  There must be evidence presented by the police vehicle was equipped with a red light that met visibility requirements. (People v. Acevedo (2003) 105 Cal App 4th 195) In People v. Brown (1989) 216 Cal App 3rd 596, witnesses testified at the trial that they observed “flashing lights.”  While the defendant’s conviction was upheld for vehicular manslaughter, the evading charge was reversed since there was no testimony that a red light was visible.

Vehicle Distinctively Marked: In People v. Estrella (1995) 31 Cal App 4th 716 the police vehicle was found to be distinctively marked; the evidence showed it had a red light, siren, wigwag lights and flashing blue and clear lights.  There is no requirement that the police vehicle display a symbol on it.  The reason that the vehicle must be distinctively marked, as noted by the Supreme Court in People v. Hudson (2006) 38 Cal 4th 1002, fn2 is to protect the public at large from assault and other crimes of violence after yielding to a vehicle that merely flashed a red light or sounded a siren.

Distinctive Uniform: In Estrella, one officer was wearing a bullet-proof vest with the word “police” on it; the other officer wore a police department vest, a cloth badge, gunbelt and a dark blue baseball cap with the word “police” written on it in yellow letters.  They were determined to be wearing distinctive uniforms since reasonable people would consider these to be police uniforms.  Of note is that there is no statutory requirement that the person eluding the police actually see the distinctive uniform.  In People v. Mathews (1998) 64 Cal App 4th 485, an officer was in plain clothes and wearing only a badge to identify himself as a police officer.  As a uniform is a dress of distinctive design that distinguishes someone from others, he was not wearing a distinctive uniform, concluded Mathews, since a badge was not an article of clothing. 

Willful or Wanton: Section 2800.2 defines “willful or wanton” to include three traffic violations as well as causing property damage.  People v. Diaz (2005) 125 Cal App 4th 1484 holds that one of the three violations may not include a violation of Section 21806(a)(1)  (failure to yield to an emergency vehicle) since its violation is necessarily included in the defendant’s eluding the officer.  To conclude otherwise would to require only two violations, instead of the three specifically required by the Legislature.  This interpretation of “willful or wanton disregard for the safety of persons or property” has been held to be constitutional.  (People v. Pinkston (2003) 112 Cal App 4th 387; People v. Williams (2005) 130 Cal App 4th 1440)

Punishment: A violation of Vehicle Code section 2800.1 is a misdemeanor; it may not be punished as an infraction (Vehicle Code section 40000.7). It is punishable by imprisonment in the county jail for up to one year.  A violation of section 2800.2 carries possible punishment of state prison (16 months, two or three years) or by imprisonment in county jail for six to 12 months and a fine of $1,000 to $10,000.  Causing serious bodily injury to anybody, in violation of Section 2800.3, is a felony that authorizes punishment in state prison (three, five or seven years) or county jail imprisonment up to one year or a combination of imprisonment and a fine (between $2,000 and $10,000); causing death results in imprisonment in state prison for four, six or 10 years.  Being pursued by multiple police cars can yield only one conviction since there was but one course of conduct: “Defendant’s liability for felony evading should not have rested on how many police cars were dispatched by a watch commander.”  (People v. Garcia (2003) 107 Cal App 4th 1159)

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