Vehicle Code 2800.2 VC – Felony Reckless Evading

California Vehicle Code 2800.2 VC sets forth the crime of felony reckless evading. This is defined as evading the police in a vehicle while driving with a willful or wanton disregard for the safety of people or property. The offense can be charged as a misdemeanor or a felony and is punishable by up to 3 years in jail or prison.

In other words, reckless evading takes place when someone flees from a law enforcement officer in a car—AND that person drives in a dangerous and/or reckless fashion while doing so. ^{1 2}

There is a very specific legal definition of evading an officer. You are only guilty of that crime if:

1. You specifically intend to evade the officer;
2. The officer’s car is distinctively marked, with a lighted red lamp in the front, a siren, and at least one other feature identifying it as a law enforcement vehicle; and
3. The officer is in some form of distinctive uniform.³

Examples

Here are a few examples of situations in which felony evading might be filed:

• A man is driving a stolen car. When a police officer tries to pull him over, he speeds away and proceeds to run several red lights and stop signs. When he is caught he may be charged with both grand theft auto and felony reckless evading.
• A woman whose license was suspended because of a DUI conviction has to drive anyway to get to work. An officer tries to pull her over. She realizes that she might face driving on a suspended license charges. So she speeds away and drives substantially over the speed limit near a school, nearly hitting a crossing guard.

Penalties

Despite the name, felony reckless evading in California is actually a wobbler—that is, a crime that may be charged as either a misdemeanor OR a felony.⁴

Reckless evading charged as a misdemeanor carries the following penalties:

• At least six (6) months and no more than one (1) year in county jail; and/or
• A fine of one thousand dollars ($1,000).⁵

And if it is charged as a felony, then the penalties for reckless evading an officer are:

• Sixteen (16) months, two (2) years or three (3) years in jail or prison; and/or
• A fine of up to ten thousand dollars ($10,000).⁶

In addition, the vehicle in which you are alleged to have evaded an officer may be impounded for up to thirty (30) days.⁷

Legal defenses

If you are charged with felony reckless evading, you and your criminal defense lawyer may be able to use one or more of the following legal defenses to avoid a conviction:

• You didn’t intend to evade an officer;
• There is insufficient evidence that your behavior met the legal definition of evading an officer;
• There is insufficient evidence that you drove recklessly;
• The initial traffic stop was illegal; or
• The legal defense of voluntary intoxication—which may help show that you did not have the necessary intent for a felony reckless evading conviction.⁸

In order to help you better understand the law, our California criminal defense attorneys will address the following:

• 1. When is evading an officer a felony in California?
  • 1.1. Definition of “evading an officer”
  • 1.2. Willful or wanton disregard for safety
• 2. What are the penalties if convicted of 2800.2 VC?
• 3. How can a person dispute the charges?
• 4. What crimes are related to felony evading?
  • 4.1. VC 2800.1 misdemeanor evading an officer
  • 4.2. VC 2800.3 evading causing injury or death
  • 4.3. PC 415 disturbing the peace
  • 4.4. VC 23103 reckless driving

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. When is evading an officer a felony in California?

There are two basic “elements” of the crime of felony reckless evading:

1. That you evaded an officer while driving a motor vehicle, and
2. That, in doing so, you drove with a willful or wanton disregard for the safety of other people or their property.⁹

1.1. Definition of “evading an officer”

“Evading an officer” has a very specific legal definition in California. The crime is described in Vehicle Code 2800.1 VC, California’s misdemeanor evading an officer law.¹⁰

In order for you to have evaded an officer, all of the following must be true:

First, a peace officer in a motor vehicle must have been pursuing you.¹¹

Second, you must have willfully fled from or tried to flee from him/her in a motor vehicle, specifically intending to evade him/her.¹²

(“Willfully” means that you did so willingly or on purpose. You do NOT need to have intended to hurt someone else, or gain any advantage.¹³)

Example: Thomasina is an elderly driver who is developing dementia. Sometimes while driving she “zones out” and is not aware of her surroundings.

One day she is driving 55 mph in a 25 mph school zone. A police officer tries to pull her over.

But Thomasina doesn’t understand that the officer is flashing his lights and running his siren for her. She continues to drive at the same speed obliviously—and nearly runs over a group of children crossing the street.

Thomasina is probably not guilty of felony reckless evading because she did not evade the officer willfully.

Third, the officer and his/her vehicle must have been distinctively marked. This means that ALL of the following requirements need to have been met:

1. There was at least one lighted red lamp visible from the front of the officer’s vehicle;
2. You either saw or reasonably should have seen the lamp;
3. The officer’s vehicle was sounding a siren as reasonably necessary;
4. The officer’s vehicle was distinctively marked (apart from the lamp and siren); and
5. The officer was wearing a distinctive uniform (which has to be something more than a badge—but does not have to be a full law enforcement uniform).¹⁴

Ways in which an officer’s car may be distinctively marked include:

• The seal or name of a police or law enforcement department on the outside of the car;
• Flashing blue or clear lights that are visible to the driver of the car being pursued;¹⁵ and/or
• “Wigwag” lights (flashing headlights).¹⁶

Example: A police officer named Lori is on patrol in a plain car equipped with a siren, a red light under the rearview mirror and a blue amber blinking light in the back.

Lori sees Greg hand something to another man in exchange for some cash.

Lori then follows Greg when he drives off in his car. She turns on her red light, siren, and blinking blue light. Greg does not pull over and instead runs multiple stop signs to try to get away from her.

Eventually Lori catches up to Greg. She finds drugs in his car and charge him with both transportation of a controlled substance and VC 2800.2.

But the prosecutors are unable to prove beyond a reasonable doubt that the blinking blue light was visible to Greg. This means Lori’s car was not distinctively marked apart from the red light and siren—and that Greg is not guilty of felony reckless evading.¹⁷

1.2. Willful or wanton disregard for safety

The key factor distinguishing felony reckless evading from simple (misdemeanor) evading an officer is a requirement that the defendant drove recklessly—with wanton disregard for the safety of people or property—while evading the officer.¹⁸

You act with a wanton disregard for safety if you:

1. Are aware that your actions pose an unjustifiable risk of harm, and
2. Intentionally ignore that risk.¹⁹

You can act with a wanton disregard for safety even if you don’t cause any damage—and even if you don’t intend to cause any damage.²⁰

Example: In order to evade police officers who are chasing her car, Eva makes an illegal U-turn, drives the wrong way down a one-way street, and drives substantially over the speed limit.

But when she encounters a group of pedestrians crossing the street, she brakes sharply to avoid hitting them. This allows the police to catch her.

It is clear that Eva did not intend to hurt anyone or cause any property damage—and she did not actually cause any.

But she could still be guilty of felony reckless evading, if the jury determines that her actions still posed an unjustifiable risk of injury or property damage.

Also, under Vehicle Code 2800.2, if you commit three (3) or more traffic violations that are assigned a violation point count under the California Vehicle Code, then you are considered to have driven with a wanton disregard for safety.²¹

This is true regardless of how dangerous those violations actually were under the circumstances.

Example: When police officers try to pull Steven over, he speeds away.

Steven proceeds to run several stop signs, run a red light, and drive 50-60 mph in a residential zone before the officers finally corner him at a dead end. During the chase he accumulates more than 3 traffic violations that would earn him driver’s license points.

All this happens on a Sunday when traffic is extremely light. Steven’s driving never causes him to come close to hitting another vehicle, and it never causes another driver to take evasive action. And the entire chase lasts only two minutes.

But Steven is still guilty of reckless evading because he accumulated the necessary number of violations. It doesn’t matter that the circumstances of the chase may have meant that his driving was not actually that reckless.²²

It is important to note, though, that just evading an officer while driving under the influence will not necessarily be considered reckless evading. Your driving needs to have involved a wanton disregard for safety in addition to the fact that you were driving intoxicated.²³

2. What are the penalties if convicted of 2800.2 VC?

Felony reckless evading is—despite its name—actually a wobbler in California law. This means that prosecutors may choose to charge it as either a felony or a misdemeanor, depending on:

1. The circumstances of the offense, and
2. The defendant’s criminal history.²⁴

In practice, though, California prosecutors usually choose to charge VC 2800.2 as a felony.

If it is prosecuted as a misdemeanor, then reckless evading an officer carries the following penalties:

• Misdemeanor (summary) probation;
• At least six (6) months and up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).²⁵

The felony evading sentence is more serious. A person convicted as a felony will gace:

• Felony (formal) probation;
• Sixteen (16) months, two (2) years or three (3) years in state prison; and/or
• A fine of up to ten thousand dollars ($10,000).²⁶

You will be charged with only one count of reckless evading for each chase that led to the charges—regardless of how many officers or law enforcement vehicles pursued you.²⁷

Vehicle impoundment; driver’s license suspension

Regardless of whether it is charged as a misdemeanor or a felony, if you are convicted of reckless evading, then the judge will most likely:

• Impound the vehicle in which you fled from an officer, for up to thirty (30) days;²⁸ and
• Suspend your driver’s license for a period of time as a condition of your probation.²⁹

Additionally, if you hold a commercial driver’s license and commit the crime of Vehicle Code 2800.2 reckless evading in a commercial vehicle, then your right to operate a commercial vehicle will be suspended for one (1) year.³⁰

And your commercial driver’s license will be taken away for the rest of your life if you are convicted of more than one violation of Vehicle Code 2800.2 VC, all of which occurred while you were operating a commercial vehicle.³¹

3. How can a person dispute the charges?

There are several common legal defenses that can be useful for fighting felony reckless evading charges. An experienced California criminal defense attorney can help you determine which of these would make the most sense for your case.

They include:

Lack of specific intent

You are not guilty under Vehicle Code 2800.2 unless you specifically intended to evade a law enforcement officer.³²

According to Oakland criminal defense attorney Reve Bautista³³:

“Sometimes people get pulled over in neighborhoods where they fear for their safety. And they may not be 100% sure that the person pulling them over is actually a police officer—particularly if the officer’s car isn’t clearly marked or it’s dark outside. If you were actually trying to escape from what you saw as a potentially dangerous situation—or if you were just trying to get to a safer location before pulling over—then you aren’t guilty of evading an officer.”

In this kind of scenario, you should be able to challenge the prosecution’s claim that you specifically intended to evade an officer.

Insufficient evidence that you evaded an officer

As we discussed above, California evading an officer law sets out very specific requirements for how the officer’s car and clothing need to have looked in order for a person to be convicted of reckless evading.³⁴

This means that the prosecution must be able to put forth evidence that all of these requirements are met. In a striking number of cases, they are not able to do this.

Insufficient evidence that you drove recklessly

Sometimes prosecutors try to turn an evading an officer case into a felony case without good cause to do so—by calling your driving “reckless” when in reality it was not.

In order for you to be convicted of reckless evading, you need to have driven in a way that created an unreasonable risk, or else violated a certain number of traffic laws.³⁵

But let’s say you drove in a slightly dangerous way but in a time and place where this was unlikely to lead to injury or damage—by speeding on an empty freeway, for example.

In that case, you may be able to convince the jury that you should not be convicted of felony reckless evading.

Instead, you may only be guilty of misdemeanor evading under Vehicle Code 2800.1 VC—which carries less severe penalties.³⁶

The arrest was based on an illegal stop

Before an officer can pull you over, s/he must have a reasonable suspicion that you are or were engaged in criminal activity.³⁷

This means that if the officer arbitrarily decided to pull you over without any cause to do so—and you didn’t stop because you were worried about police brutality or angry because you thought you were the victim of racial profiling—then you may not be guilty of reckless evading an officer. The illegal stop may override any wrongdoing on your part.

The legal defense of voluntary intoxication

The legal defense of voluntary intoxication can be used to fight felony reckless evading charges.³⁸

This defense may apply if both of the following are true:

1. When you evaded an officer, you were under the influence of an intoxicating substance (alcohol or drugs); and
2. Because you were intoxicated, you could not form the specific intent (to evade an officer) that is an element of VC 2800.2.³⁹

Of course, if you argue the voluntary intoxication legal defense, you could end up facing charges for California DUI or DUI of drugs. But this is probably preferable to facing a felony evading an officer conviction.

For example, a first-time DUI is a misdemeanor rather than a felony—and carries a lower potential jail sentence (up to six months) than even misdemeanor reckless evading.⁴⁰

Also, there may be less of a stigma associated with a DUI conviction on your record than with a conviction for felony reckless evading.

4. What crimes are related to felony evading?

The California Vehicle and Penal Codes contain several other offenses that may be charged instead of felony reckless evading.

These include:

4.1. VC 2800.1 misdemeanor evading an officer

Misdemeanor evading an officer under Vehicle Code 2800.1 has an identical legal definition to felony reckless evading—except that the former does not require that the defendant have driven with a wanton disregard for safety.⁴¹

Misdemeanor evading an officer is what is known as a “lesser included offense” of felony reckless evading.⁴²

This means that the jury may convict you of misdemeanor evading instead, if they determine that you evaded an officer but did not drive recklessly in doing so.

The maximum penalties for misdemeanor evading are up to one (1) year in county jail, and a fine of up to one thousand dollars ($1,000).⁴³

4.2. VC 2800.3 evading causing injury or death

If you evade an officer, and in the process, you cause the serious bodily injury or death of another person, then you will be charged with Vehicle Code 2800.3 evading an officer causing injury or death.⁴⁴

If the act of evading an officer causes only serious bodily injury, then this offense is a wobbler. The potential felony penalties include three (3), five (5) or seven (7) years in state prison.⁴⁵

But if you evade an officer and cause the death of another person, you will be charged with a felony and may receive four (4), six (6) or ten (10) years in state prison.⁴⁶

4.3. PC 415 disturbing the peace

If the prosecution’s evidence is weak—but they are not willing to dismiss the felony reckless evading charges altogether—then it may make sense to try to negotiate a plea bargain to the lesser charge of Penal Code 415 PC “disturbing the peace”.

Disturbing the peace is a misdemeanor that carries:

• a potential county jail sentence of up to ninety (90) days, and
• a potential fine of less than four hundred dollars ($400).⁴⁷

Not to mention that a disturbing the peace conviction carries much less of a stigma on a criminal record than a felony reckless evading conviction.

4.4. VC 23103 reckless driving

Vehicle Code 23103, California’s reckless driving law, can be a desirable plea bargain to reckless evading charges. VC 203103 is a California “wobbler” offense.

If charged as a felony, penalties are the same as for felony reckless evading.

But if charged as a misdemeanor reckless driving can be punished by as little as:

• Five (5) to ninety (90) days in county jail, and/or
• A fine of between $145 and $1,000.

For additional help…

For questions about Vehicle Code 2800.2 felony reckless evading, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group. We also invite you to see our video on felony reckless evading – Vehicle Code 2800.2.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on the crime of “evading police” in Nevada, please see our page on the crime of “evading police” in Nevada.

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