Charged with evading a peace officer? We can help. As former cops and prosecutors, we know the most effective strategies for defending against bogus evading charges.
Below, our California criminal defense attorneys1 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Vehicle Code 2800.2 VC Felony Reckless Evading; Penal Code 148 PC Resisting Arrest; and California Legal Defenses.
1. The Legal Definition of Vehicle Code 2800.1 VC
California's "Evading an Officer" Law
Vehicle Code 2800.1 VC is commonly referred to as misdemeanor evading, which distinguishes it from Vehicle Code 2800.2 VC felony reckless evading. And while both are closely related to Penal Code 148 PC California's "resisting arrest" law, they are all separate offenses.
Misdemeanor evading takes place when you evade or flee from an officer who is pursuing you either
- in a marked motor vehicle (which includes police cars and motorcycles), or
- on a bicycle.2
Since most evading cases occur when an individual allegedly flees from an officer driving a car or motorcycle, it's that offense on which we'll focus.
In order for prosecutors to convict you of evading a police officer, they must prove the following facts (otherwise known as "elements of the crime"):
- that while you were driving, 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, and
- the officer who was driving was wearing a distinctive uniform.3
Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definition.
You act willfully when you commit an act willingly or on purpose. It doesn't matter if you don't intend to break the law as long as the act is intentional.4
Specific intent to evade
Vehicle Code 2800.1 VC is a specific intent crime. Specific intent crimes are crimes where you specifically intend the prohibited result. In this case, it means that you specifically desire to "lose" the officer.
If prosecutors can't prove that you had this intent, they cannot convict you of this offense.
Example: You are pretty "high" while driving under the influence of marijuana5 and don't even realize that you are being pulled over. Under these circumstances, you don't specifically intend to evade the police officer and are therefore innocent of the Vehicle Code 2800.1 VC charge.
The officer displayed at least one lit red lamp
What's important to note about this element (which seems relatively straight-forward) is the fact that the light must be red. Flashing amber lights will not suffice, nor will general testimony that the police officer's "lights" were on.
As Rancho Cucamonga criminal defense attorney Michael Scafiddi6 explains, "This is an example of why it is critical to have an experienced attorney on your side. A savvy criminal defense lawyer can win the case just by addressing the fact that the prosecutor failed to elicit testimony that the officer activated one of his red lights (and instead only obtained testimony that he activated his overhead lights). It's technicalities like this that make the difference between a guilty verdict and a not guilty verdict".
But there is no requirement that the lights continuously remain on. As long as the officer alerts you to the fact that he/she is trying to pull you over...and does so for a reasonable amount of time... the lights/siren do not need to remain on during the entire pursuit.7
The officer's car was distinctively marked
For the purposes of California's evading a police officer law, 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".8
This definition makes it clear that having a red lamp and siren are not enough... there must be more to distinguish the vehicle as a distinctively marked car.9 This may include insignias, logos, or other physical characteristics that set the vehicle apart from one driven by a civilian.
The officer was wearing a distinctive uniform
In addition to the above elements, the peace officer must also be wearing a distinctive uniform. A distinctive uniform is one that sets it apart from typical "street clothes" such that it is clear that the individual trying to pull you over is an officer.10
Examples: Obviously, a full "police" uniform qualifies as a distinctive uniform. But courts have also held that a bullet-proof vest with the word "police" on it in conjunction with a gun belt is sufficient. Similarly, a cloth vest marked with the word "police" worn with a baseball cap with the same marking also qualifies.
However, wearing plain clothes and a badge is not enough to meet these criteria. That said, there is nothing in the law that requires that the uniform be of any particular level of formality or that it be complete.11
There are a variety of legal defenses to a Vehicle Code 2800.1 VC evading a police officer charge that your criminal defense lawyer could present on your behalf. The following are some of the most common.
You didn't willfully evade the officer
If you didn't willfully evade the peace officer, you aren't guilty of violating Vehicle Code 2800.1 VC California's "evading an officer" law. This defense could arise in a number of situations.
Perhaps you were so distracted that you didn't realize you were being pulled over. Perhaps you were scared to pull over because you were alone in the car, it was late at night, you were in a bad neighborhood, etc. and you were simply trying to drive to a safer location. Perhaps someone else was in your car forcing you to flee from the officers.
Under any of these scenarios, your act of evading wasn't willful and, as a result, you should not be convicted of the charge.
You didn't intend to evade the officer
Similarly, if you don't specifically intend to evade the police officer, you don't violate this law. The best example of this defense would be based on intoxication. If you are either voluntarily or involuntarily intoxicated, you may be unable to form the specific intent to commit a crime.12
If your lawyer can prove that you were so intoxicated that you didn't intend to flee the officer(s), or didn't even realize they were pursuing you, you should be acquitted of this charge. However, you will still likely face DUI charges for the incident.13
Finally, if even one of the above seven elements isn't satisfied beyond a reasonable doubt, you should be acquitted of this charge. This means if your criminal defense attorney can successfully challenge
- the claim that the officer displayed a red light,
- that he/she was in a distinctive uniform,
- that he/she was in a marked car, etc...any one of these facts...
then you aren't guilty as charged.
If convicted of violating Vehicle Code 2800.1 VC California's "evading a police officer" law, you face up to one year in a county jail and a maximum $1,000 fine.14 The court may additionally impound your car for up to 30 days and/or suspend or restrict your driver's license in accordance with California's probation laws.15
And these penalties remain the same regardless of how many officers are pursuing you. The act of evading a peace officer counts as a single act, which means that you can only be convicted of one count for this offense.16
If the prosecutor can prove all of the elements required under Vehicle Code 2800.1 VC and can additionally prove that you drove with "willful and wanton disregard for the safety of others", you face a conviction for Vehicle Code 2800.2 VC California's "felony reckless evading an officer" law.17
If, while you are evading an officer pursuant to VC 2800.1 you cause serious bodily injury or death to another person, you face prosecution under Vehicle Code 2800.3 VC. VC 2800.3 carries a three to ten-year California state prison sentence.18 These facts may also trigger vehicular manslaughter or, if you were intoxicated, possible DUI murder charges.19
If, while you are evading an officer in violation of California's misdemeanor evading law, you drive against oncoming traffic on the freeway, you face charges for Vehicle Code 2800.4 VC. Vehicle Code 2800.4 VC subjects you to
- a six-month to one-year county jail sentence, or to 16 months, or two or three years in the state prison, and
- between $1,000 and $10,000 in fines.20
If you are a commercial driver who was driving a commercial vehicle that gave rise to your misdemeanor evading conviction, you will lose your commercial driver's license for one year upon your first conviction.21 A second or subsequent conviction will result in a lifetime suspension of your commercial license.22
When the facts against you are simply too strong to overcome, your California criminal defense lawyer will try to negotiate a plea bargain for a lesser charge. With respect to Vehicle Code 2800.1 VC California's "evading an officer" law, a lesser charge may be
- an alternative misdemeanor offense that only carries a maximum six-month jail sentence (such as Penal Code 415 PC California's disturbing the peace law23),
- an alternative misdemeanor charge that carries less of a social stigma, or
- one or more infraction charges (such as speeding and/or failure to yield).
Call us for help...
For more information about California's evading laws, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's evading laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.24 For information about Nevada evading laws, go to our article on Nevada evading laws.
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Vehicle Code 2800.1 VC -- Evading an officer. ("(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.")
3California Jury Instructions – Criminal – CALJIC 16.890 -- California's "evading an officer" law.
4CALJIC 1.20 -- Willfully. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
5California Vehicle Code 23152(a) – Driving under the influence of drugs. To be convicted of driving under the influence of marijuana under Vehicle Code 23152(a) VC, you must be impaired to such a degree that you no longer have the "ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances".
6Rancho Cucamonga criminal defense attorney Michael Scafiddi defends clients in the San Gabriel Valley and Inland Empire, including Palm Springs, Hemet, Riverside, and San Bernardino.
7People v. Copass (2009) 180 Cal.App.4th 37, 41.
8Judicial Council Of California Criminal Jury Instruction -- CALCRIM 2181 -- California's "evading an officer" law.
9People v. Hudson (2006) 38 Cal.4th 1002, 1010.
10People v. Mathews (1998) 64 Cal.App.4th 485, 490.("The Estrella court noted that a "uniform" is a "dress of a distinctive design or fashion adopted by or prescribed for members of a particular group and serving as a means of identification." ( Id. at p. 724, 37 Cal.Rptr.2d 383, citing Webster's Third New Internat. Dict. (1986) p. 2498.) A uniform "is distinctive if it serves to distinguish, or sets something apart from others, or if it is characteristic of or peculiar to its type." ( Ibid., citing Webster's Third New Internat. Dict., supra, p. 695.) Thus, a law enforcement officer's "distinctive uniform" is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.")
11See same. ("In Estrella, the officers were in plainclothes, but during the pursuit, one officer put on a gun belt and a bulletproof vest with a covering that bore the word "Police"; another officer had on a police department vest with a cloth badge and a baseball cap with the word "Police" on it in bright lettering. ( People v. Estrella, supra, 31 Cal.App.4th at pp. 719, 724, 37 Cal.Rptr.2d 383.) The Estrella court found the vests and cap "qualif[ied] as parts of police uniforms." ( Id. at p. 724, 37 Cal.Rptr.2d 383.) As Estrella noted, the statute does not specify a uniform must be of any degree of formality or completeness, stating, "the word ‘Police' and a badge are distinctive ways of identifying the wearers as police." ( Ibid.) However, a badge is not an article of clothing, and while it may help to distinguish a law enforcement officer, it does not constitute a "distinctive uniform." Since the officer here was in plainclothes, with only a badge to identify himself as a police officer, he was not wearing a "distinctive uniform" as required by Vehicle Code section 2800.1 [California's "evading an officer" law]. There is thus insufficient evidence to support a conviction for evading a police officer, and that conviction must be reversed.")
12California Penal Code 22 PC -- Voluntary intoxication. ("(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent...")
13California Vehicle Code 23152 VC -- Driving under the influence (DUI). ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")
14See Vehicle Code 2800.1 VC California's "evading an officer" law, endnote 2, above.
See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
15California Vehicle Code 14602.7 -- Fleeing or evading a peace officer; reckless driving; removal and impoundment. ("(a) A magistrate presented with the affidavit of a peace officer establishing reasonable cause to believe that a vehicle, described by vehicle type and license number, was an instrumentality used in the peace officer's presence in violation of Section 2800.1, 2800.2, 2800.3, or 23103, shall issue a warrant or order authorizing any peace officer to immediately seize and cause the removal of the vehicle. The warrant or court order may be entered into a computerized database. A vehicle so impounded may be impounded for a period not to exceed 30 days.")
See also California Penal Code 1203.1 PC, one of California's probation laws. ("(j) The court may impose...other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...")
16People v. Garcia (2003) 107 C.A.4th 1159, 1162
17California Vehicle Code 2800.2 VC -- Driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officer; penalties. ("(a) If a person flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1 [California's "evading an officer" law] 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.")
18California Vehicle Code 2800.3 VC -- Death or serious bodily injury proximately caused by flight from pursuing peace officer; punishment; "serious bodily injury" defined. ("(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 Vehicle Code Section 2800.1 [California's "evading an officer" law] 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. (c) Nothing in this section shall preclude the imposition of a greater sentence pursuant to Section 190 of the Penal Code or any other provisions of law applicable to punishment for an unlawful death. (d) For the purposes of this section, "serious bodily injury" has the same meaning as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code.")
19California Penal Code 192(c) PC -- Vehicular manslaughter.
20California Vehicle Code 2800.4 VC -- Willful driving of vehicle on highway in direction opposite lawful traffic during flight from pursuing peace officer; punishment. ("Whenever a person willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway, the person upon conviction is punishable by imprisonment for not less than six months nor more than one year in a county jail or by imprisonment in the state prison, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment.")
21California 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 [California's "evading an officer" law], 2800.2, or 2800.3 that involves a commercial motor vehicle...")
22California 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.")
23Penal Code 415 PC California's disturbing the peace law. ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.") Although this offense has little if anything to do with evading an officer, it carries a lesser sentence and a lesser stigma than many misdemeanor offenses and is commonly used as a plea bargaining tool.
24Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions about Nevada's evading laws. Their Nevada law offices are located in Reno and Las Vegas.