California Vehicle Code § 2800.2 VC sets forth the crime of felony reckless evading, which is evading the police in a vehicle while driving with a willful or wanton disregard for the safety of people or property.
In short, felony reckless evading takes place when you flee from a law enforcement officer in a car AND you drive in a dangerous and/or reckless fashion while doing so. 2
To prove the case, the prosecutor must show that:
- You specifically intend to evade the officer;
- 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
- The officer is in some form of distinctive uniform.3
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?
- 2. What are the penalties if convicted of 2800.2 VC?
- 3. How can I dispute the charges?
- 4. What crimes are related to felony evading?
There are two basic “elements” of the crime of felony reckless evading:
- That you evaded an officer while driving a motor vehicle, and
- That, in doing so, you drove with a willful or wanton disregard for the safety of other people or their property.4
“Evading an officer” is described in Vehicle Code 2800.1 VC, California’s misdemeanor evading an officer law.5
First, a peace officer in a motor vehicle must have been pursuing you. Second, you must have willfully fled from or tried to flee from them in a motor vehicle, specifically intending to evade them.
(“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.)
Finally, the officer and their vehicle must have been distinctively marked. This means that ALL of the following requirements need to have been met:
- There was at least one lighted red lamp visible from the front of the officer’s vehicle;
- You either saw or reasonably should have seen the lamp;
- The officer’s vehicle was sounding a siren as reasonably necessary;
- The officer’s vehicle was distinctively marked (apart from the lamp and siren); and
- 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).6
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; and/or
- “Wigwag” lights (flashing headlights).
Example: After observing Greg in a car with drugs, a police officer in a plain car turns on the red light, siren, and blinking blue light. If Greg does not pull over, prosecutors may be unable to prove beyond a reasonable doubt that the blinking blue light was visible to Greg. This means the plain car was not distinctively marked apart from the red light and siren—and that Greg is not guilty of felony reckless evading.7
The key factor distinguishing felony reckless evading from simple (misdemeanor) evading an officer is a requirement that you drove recklessly—with wanton disregard for the safety of people or property—while evading the officer.8
You act with a wanton disregard for safety if you:
- Are aware that your actions pose an unjustifiable risk of harm, and
- Intentionally ignore that risk.
You can act with a wanton disregard for safety even if you do not cause any damage and do not intend to cause any damage.9
Also, 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.10 This is true regardless of how dangerous those violations actually were under the circumstances.
Example: While evading police, Steven runs several stop signs, runs a red light, and drives 50-60 mph in a residential zone. Even though traffic is light and he is endangering no one, Steven is still guilty of reckless evading because he accumulated the necessary number of violations.11
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.12
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:
- The circumstances of the offense, and
- Your criminal history.
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).
The felony evading sentence is more serious:
- 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).
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.13
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;14 and
- Suspend your driver’s license for a period of time as a condition of your probation.15
Additionally, if you hold a commercial driver’s license and violate VC 2800.2, then your right to operate a commercial vehicle will be suspended for one (1) year.16 This becomes a lifelong suspension if you pick up any more VC 2800.2 violations while driving a commercial vehicle17
Here at Shouse Law Group, we have represented literally thousands of people accused of traffic crimes such as felony reckless evading. In our experience, the following five defenses have proven very effective with judges, juries, and prosecutors.
- You did not 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;18
- The initial traffic stop was illegal (such as due to racial profiling), and the police had no reasonable suspicion;19 or
- You were intoxicated and therefore could not form the specific intent to evade the police.20
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 you have driven with a wanton disregard for safety.
Misdemeanor evading an officer is what is known as a “lesser included offense” of felony reckless evading.
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).21
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.
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.
Though 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.22
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).23
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.
Though 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 more information on California driving laws, refer to the following:
- California DMV – Government website with information about driving regulations and how to apply for/renew your license
- California Highway Patrol – The police who patrol traffic on highways as well as roads outside of city limits
- California Department of Transportation (Caltrans) – Government agency that provides various services, including information on road conditions
- California Driver’s Handbook – Provided by the DMV, this handbook outlines all the important traffic laws motorists need to know
- If you are stopped by police – Information page by the ACLU of Southern California about what to do during a traffic stop
- Vehicle Code 2800.2 VC – Flight from pursuing peace officer. (“(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.”). See also People v. Fuentes (Cal. App. 4th Dist. 2022) 78 Cal. App. 5th 670.
- Vehicle Code 2800.1 VC
- CALCRIM 2181 – Evading Peace Officer: Reckless Driving (Veh. Code, §§ 2800.1(a), 2800.2). (“The defendant is charged [in Count ] with evading a peace officer with wanton disregard for safety [in violation of Vehicle Code sections 2800.1(a) and 2800.2]. To prove that the defendant is guilty of this crime, the People must prove that: 1. A peace officer driving a motor vehicle was pursuing the defendant; 2. The defendant, who was also driving a motor vehicle, willfully ﬂed from, or tried to elude, the officer, intending to evade the officer; 3. During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property; AND 4. All of the following were true: a. There was at least one lighted red lamp visible from the front of the peace officer’s vehicle; b. The defendant either saw or reasonably should have seen the lamp; c. The peace officer’s vehicle was sounding a siren as reasonably necessary; d. The peace officer’s vehicle was distinctively marked; AND e. The peace officer was wearing a distinctive uniform. [A person employed as a police officer by <insert name of agency that employs police offıcer> is a peace officer.] [A person employed by <insert name of agency that employs peace offıcer, e.g., “the Department of Fish and Game”> is a peace officer if <insert description of facts necessary to make employee a peace offıcer, e.g., “designated by the director of the agency as a peace offıcer”>.]”)
- Vehicle Code 2800.1 VC – Flight from pursuing peace officer.
- CALCRIM 2181 – Evading Peace Officer: Reckless Driving (Veh. Code, §§ 2800.1(a), 2800.2).
- See People v. Estrella (1995) 31 Cal.App.4th 716.
- Compare Vehicle Code 2800.2 VC – Flight from pursuing peace officer, endnote 1, above, with Vehicle Code 2800.1 VC – Flight from pursuing peace officer.
- CALCRIM 2181 – (“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.”).
- Vehicle Code 2800.2 VC – Flight from pursuing peace officer.
- Based on People v. Pinkston (2003) 112 Cal.App.4th 387.
- People v. Schumacher (1961) 194 Cal.App.2d 335, 338-39. (“The driving of an automobile while under the influence of intoxicating liquor does not, in and of itself, constitute a willful or wanton disregard of the safety of persons or property.”).
- Vehicle Code 2800.2 VC – Flight from pursuing peace officer. See also Penal Code 672 PC. See also Penal Code 18 PC. People v. Torres (Cal. App. 2d Dist. 2022) 81 Cal. App. 5th 76. CALCRIM 2182 – Evading Peace Officer: Misdemeanor (Veh. Code, § 2800.1(a)), Related Issues. (“A defendant “may only be convicted of one count of section 2800.2 even though the pursuit involved multiple police officers in multiple police vehicles.” (People v. Garcia (2003) 107 Cal.App.4th 1159, 1163 [132 Cal.Rptr.2d 694].)”)
- Vehicle Code 14602.7. Fleeing or evading a peace officer; reckless driving; removal and impoundment.
- Penal Code 1203.1 PC – Probation.
- Vehicle Code 15300 VC – First time violations; hazardous material violations. (“(a) A driver shall 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 Section 2800.1, 2800.2 [felony reckless evading], or 2800.3 that involves a commercial motor vehicle.”)
- Vehicle Code 15302 VC.
- CALCRIM 2181.
- See Terry v. Ohio (1968) 392 U.S. 1.
- CALCRIM 2181 – Evading Peace Officer: Reckless Driving (Veh. Code, §§ 2800.1(a), 2800.2)), Bench Notes: Instructional Duty, endnote 8. See Penal Code 29.4 PC. Vehicle Code 23536 VC.
- Vehicle Code 2800.1 VC CALCRIM 2181 – Evading Peace Officer: Reckless Driving (Veh. Code, §§ 2800.1(a), 2800.2)), Lesser Included Offenses.
- Vehicle Code 2800.3 VC.
- Penal Code 415 PC – Fighting; noise; offensive words.