Vehicle Code § 2800.1 VC – Evading a Police Officer in a Vehicle

Vehicle Code § 2800.1 VC makes it a crime to flee from or try to elude a peace officer when you’re driving a vehicle, and the officer pursuing you is in a vehicle or on a bicycle. Doing so is a misdemeanor offense that carries up to one year in county jail.

2800.1 VC states that “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…”

Examples

• while speeding, and with marijuana in her car, Nia drives off even faster after seeing a police vehicle in her rear-view mirror with sirens and flashing lights on.
• a police car tries to pull Peggy over for a broken taillight (a minor traffic violation), but instead of making the traffic stop, she flees from the car since she is driving on a suspended license.
• Maria notices a cop car speed behind her after she blows throw a stop sign, so she hits the gas and speeds off.

Defenses

There are several legal defenses that we can raise on your behalf if accused of evading an officer. These include showing that:

• you had no intent to evade and/or
• the police car did not have its flashing lights on

Penalties

A violation of this section is charged as a misdemeanor (as opposed to a felony or an infraction).

The crime is punishable under California law by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $1,000.

In lieu of jail time, we can ask the judge to grant you misdemeanor (or summary probation).

Also note that, if you are convicted of an offense under this statute, this conviction will generally have no:

• negative immigration consequences (if applicable), or
• impact on your gun rights.

You can also seek to have it expunged once you successfully complete:

• probation (if imposed), or
• any jail time (if imposed).

Our California criminal defense attorneys will explain the following in this article:

• 1. When is it a crime to evade a police officer?
• 2. Are there defenses to 2800.1 VC?
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can I get a conviction expunged?
• 6. Does a conviction affect my gun rights?
• 7. Related Crimes
• Additional Reading

1. When is it a crime to evade a police officer?

Vehicle Code 2800.1 VC is the California statute that makes it a crime to evade the police in a vehicle willfully.¹

A prosecutor must prove three things to convict you under this statute. These are:

1. a police officer driving a motor vehicle was pursuing you,
2. you were also driving a motor vehicle and willfully fled from, or tried to elude, the officer, intending to evade the officer, and
3. all of the following were true:
   1. there was at least one lighted red lamp visible from the front of the peace officer’s vehicle,
   2. you either saw or reasonably should have seen the lamp,
   3. the peace officer’s vehicle was sounding a siren as reasonably necessary,
   4. the peace officer’s vehicle was distinctively marked, and
   5. the peace officer was wearing a distinctive police uniform.²

Note that the determination as to whether or not a police officer was “pursuing you” is ultimately decided by a judge or jury examining all of the facts in a case.³

The same is true as to the determination of whether you had the specific intent to evade an officer.⁴

Questions often arise under this statute on the meaning of:

• willfully, and
• distinctively marked and distinctive uniform.

Willfully

Under this code section, you commit an act “willfully” when you do it willingly or on purpose.⁵

It is not required that you intended to:

• break the law,
• hurt someone else, or
• gain any advantage.⁶

Distinctively marked and distinctive uniform

2800.1 VC requires that the pursuing police car be distinctively marked and the pursuing cop to be wearing a distinctive uniform.

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.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.⁸

2. Are there defenses to 2800.1 VC?

Here at Shouse Law Group, we have represented literally thousands of people facing criminal charges such as evading police. In our experience, the following two defenses have proven very effective with prosecutors, judges, and juries.

You had no intent to evade

Recall that you are only guilty under this code section if you flee from a pursuing officer with the specific intent to evade, or escape or avoid, that officer or of evading arrest. This means it is always a legal defense for you to show that you did not act with this requisite intent.

Claiming you had no criminal intent is one of our strongest defenses because prosecutors have no way of getting inside of your head at the time of the alleged evasion. Perhaps you honestly did not see the police, or perhaps you were trying to avoid a crash.

Evasion charges cannot be sustained as long as there is some reasonable doubt as to your intentions. If we can convince the prosecutors that their evidence is too weak to support a conviction, they may drop the case.

There were no flashing lights on

Also recall that you are only guilty under this statute if the pursuing officer had at least one flashing red light on during the pursuit. Therefore, you can try to challenge an accusation by saying that no flashing light was on.

In these cases, we look for any available surveillance video, mobile phone video, or eyewitness accounts that indicate the police forgot to put on the lights. Prosecutors may then be forced to dismiss the charges once they realize the police – and not you – were in the wrong.

3. What are the penalties?

A violation of this statute is charged as a misdemeanor.⁹

The crime is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $1,000.¹⁰

4. Are there immigration consequences?

A conviction under this statute does not have negative immigration consequences.

Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

However, a VC 2800.1 guilty charge is not one of these types of convictions.

5. Can I get a conviction expunged?

Yes. Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹¹

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided you:

1. successfully completed probation (either felony probation or misdemeanor probation), and
2. are not currently charged with a criminal offense, on probation, or in jail.¹²

This means that once you have successfully completed probation for evading police or serving a jail term for the same, you may begin trying to get the crime expunged.

6. Does a conviction affect my gun rights?

A conviction under VC 2800.1 does not have an effect on your gun rights.

Note that some felony and misdemeanor convictions will result in you losing your right to own a gun in California.

Also note that some misdemeanors carry a 10-year firearm ban.

A conviction for evading police in a vehicle will not result in you losing ownership of your gun or being banned from the gun for a period of time.

7. Related Crimes

The following chart compares the elements and penalties of California’s reckless evading crimes.

Reckless Evading Crime	Elements of California Jury Instructions	Incarceration	Fines
Misdemeanor Reckless Evading (VC 2800.1)	Willfully fleeing a police car or bicycle with intent to evade	Misdemeanor: Up to 1 year in jail	Up to $1,000
Felony Reckless Evading (VC 2800.2)	Willfully fleeing a police car or bicycle with intent to evade and driving with willful or wanton disregard for people and property	Misdemeanor: 6 months to 1 year in jail or Felony: 16 months, 2 years, or 3 years in prison	$1,000 to $10,000
Reckless Evading with Serious Bodily Injury or Death (VC 2800.3)	Causing injury or death by willfully fleeing a police car or bicycle with intent to evade	If serious bodily injury results: Misdemeanor: Up to 1 year in jail or Felony: 3, 5, or 7 years in prison If death results: Felony: 4, 6, or 10 years in prison	$2,000 to $10,000
Reckless Evading while Driving Against Traffic (VC 2800.4)	Willfully fleeing a police car or bicycle with intent to evade and driving against traffic	Misdemeanor: 6 months to 1 year in jail or Felony: 16 months, 2 years, or 3 years in prison	$1,000 to $10,000

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Swimming against the Tide: The Eighth Circuit Holds That Fleeing a Police Officer in a Motor Vehicle is Not a Crime of Violence – Missouri Law Review.
• The Policeman’s Privilege to Shoot a Fleeing Suspect: Constitutional Limits on the Use of Deadly Force – American Criminal Law Review.
• To Flee or Not to Flee – That Is the Question: Flight as Furtive Gesture – Idaho Law Review.
• Not by Flight Alone: When Should Police Stop Fleeing Citizens – Maryland Journal of Contemporary Legal Issues.
• Per Se Reasonable Suspicion: Police Authority to Stop Those Who Flee from Road Checkpoints – Duke Law Journal.

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