Vehicle Code 2800.3 VC is the California statute that defines the crime of “evading a peace officer causing injury or death.”1
This offense is charged when:
- The defendant evades a law enforcement officer in a motor vehicle, as described in Vehicle Code 2800.1 misdemeanor evading an officer; and
- In doing so, s/he proximately causes the serious bodily injury or death of another person.2
(“Serious bodily injury” means something similar to the concept of “great bodily injury,” which plays a large role in California criminal law.3)
Evading an officer has a very specific definition in California. You are only guilty of that crime if:
- You specifically intend to evade a peace 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.4
- A highway patrol officer tries to stop a woman who is speeding. But she is afraid to pull over because she has drug paraphernalia in her car. So she drives away at an even faster speed and hits a jaywalking pedestrian. The pedestrian ends up in the hospital with two broken legs.
- A man whose driver's license is suspended because of a DUI conviction has to drive anyway to get to work. An officer tries to pull him over. Terrified of driving on a suspended license charges, the man speeds away, runs a red light, and causes a collision in which one person is killed.
If evading an officer causing injury or death charges are based on only an injury, then this crime is a wobbler—that is, a crime that may be charged as either a misdemeanor OR a felony.5
Charged as a misdemeanor, VC 2800.3 causing injury can lead to up to (1) year in county jail.6
If it is charged as a felony, evading an officer causing injury carries a California state prison sentence of three (3), five (5) or seven (7) years.7
And evading an officer causing death is always a felony in California law. It carries a state prison sentence of four (4), six (6) or ten (10) years.8
Finally, all forms of this section carry a potential fine of at least two thousand dollars ($2,000) and no more than ten thousand dollars ($10,000).9
These are harsh penalties—particularly considering that you can be charged with evading an officer causing death or injury even if you never intended to harm anyone.
But with the help of a criminal defense lawyer, you 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;
- Your driving wasn't the proximate cause of death or injury; and
- The injury was not actually “serious.”
In order to help you better understand the law, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of evading an officer causing death or injury revolves around the following two “elements of the crime”:
- You evaded a peace officer while driving a motor vehicle, and
- By evading an officer, you caused the serious bodily injury or death of someone else.10
These elements are the key facts that the prosecution must prove in order for you to be guilty under Vehicle Code 2800.3 VC.
The legal definition of “evading an officer” is set out in Vehicle Code 2800.1 VC, California's misdemeanor evading an officer law.11
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.12
Second, you must have willfully fled from or tried to flee from him/her in a motor vehicle, specifically intending to evade him/her.13
(“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.14)
Example: While driving home from a party at night, Kirsten gets lost in an unfamiliar neighborhood, which she knows is a high-crime area.
A dark sedan pulls up behind Kirsten's car and begins flashing a red light and running a siren. But the car is not like marked like a police car.
Kirsten, who is already nervous about being in this neighborhood, is terrified that the driver behind her is only pretending to be a law enforcement officer. She does not pull over and instead increases her speed and tries to find her way back to the freeway.
Disoriented by her fear and the poor lighting, Kirsten hits a homeless man who wanders into the street. He ends up in the hospital with serious lacerations and a concussion.
Kirsten did not specifically intend to evade an officer; she drove the way she did because she feared for her safety.
As a result, she probably is not guilty of evading a peace officer—or of evading a peace officer causing serious injury.
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:
- 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).15
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;16 and/or
- “Wigwag” lights (flashing headlights).17
You are only guilty of evading a peace officer causing death or injury if the act of evading an officer causes death or serious bodily injury.
This means that both of the following must be true:
- The death or injury was the direct, natural, and probable consequence of your actions; and
- The death or injury would not have happened if you had not evaded the officer.18
A natural and probable consequence is one that a reasonable person would know is likely to happen, considering all the circumstances.19
Example: Scott is driving a shipment of cocaine in his truck when a police officer tries to pull him over.
Scott does not want to face transportation of a controlled substance charges, so he speeds away and leads the officer—and eventually several other police cars—on a high-speed chase.
The chase passes the home of Mickey, an elderly man, while Mickey is watering his front yard. Mickey is upset to see this kind of thing happening in his neighborhood, and as the police cars pass by he has a heart attack that eventually kills him.
Mickey's death was caused by Scott's act of evading an officer. But it was not a natural and probable consequence of Scott's activities. So Scott may be guilty of evading an officer—but he is not guilty of 2800.3 VC evading causing injury or death.
And if there is more than one cause of death or serious bodily injury, then you will be guilty under Vehicle Code 2800.3 if your act of evading an officer was a “substantial factor” in causing the death or injury.20
This means that it needs to be more than a trivial or remote cause of the death or injury—but it does not need to be the only cause.21
Example: Alexandra is driving a stolen car when a highway patrol officer tries to pull her over. She does not want to face grand theft auto charges and so speeds away from the officer.
Alexandra runs through a yellow light just as it is turning red. The officer turns on his siren and proceeds slowly through the intersection on the red. But a driver fails to yield to the officer's siren and strikes his car, killing him.
Alexandra's evading the officer was only one factor causing his death. The negligence of the other driver also helped cause it.
But because Alexandra's actions were still a substantial factor in his death, she can be charged with evading a peace officer causing injury or death.
For purposes of Vehicle Code 2800.3 VC, “serious bodily injury” means a serious impairment of physical condition.22
Some examples of injuries that may count as serious bodily injuries include:
- Loss of consciousness,
- Bone fractures,
- Wounds requiring extensive suturing,
- Protracted loss or impairment of a body part or function, and/or
- Serious disfigurement.23
But note that injuries that are not on that list may still count as a serious bodily injury—and an injury on that list might not count, depending on the exact circumstances. Whether an injury is “serious” is a question for the jury to decide.
Example: Police spot Matthew engaging in a hand-to-hand methamphetamine transaction. When he realizes police are watching, Matthew jumps in his car and speeds off, and the police follow in their vehicle.
During the chase, Matthew runs a red light. Renee, a driver who has the right of way, has to brake suddenly to avoid hitting him. The car behind Renee's rear-ends her.
Renee has a stiff neck and minor back pain for several days after the accident, but she is able to go about her daily life as usual.
Matthew is probably not guilty of evading an officer causing injury or death—because Renee's injuries do not rise to the level of a serious bodily injury.
Example: After running the red light that causes Renee's injuries, Matthew continues to drive at a high speed to avoid the officers who are pursuing him.
The officer who is driving eventually loses control of his car trying to follow Matthew around a sharp curve at a high speed. The patrol car flips over.
One of the officers is hospitalized with several broken ribs, and the other suffers a concussion.
Matthew may well be guilty of Vehicle Code 2800.3 evading causing injury or death because of these injuries. A jury is likely to conclude that these injuries are “serious.”
It bears mentioning that the concept of “serious bodily injury” basically means the same thing as “great bodily injury.”24 (“Great bodily injury” is the basis for sentencing enhancements for a number of California crimes, such as Vehicle Code 23153 DUI causing injury and Penal Code 242 PC battery.)
The penalties for VC 2800.3 evading a law enforcement officer causing injury or death depend on whether the evading is alleged to have caused an injury or a death.25
Evading an officer causing injury
If the alleged victim suffered a serious injury, then the offense is 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
- The defendant's criminal history.26
If it is prosecuted as a misdemeanor, then the penalties for evading an officer causing injury can include:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of two thousand dollars ($2,000) to ten thousand dollars ($10,000).27
If it is prosecuted as a felony, then the potential penalties include:
- Felony (formal) probation;
- Three (3), five (5) or seven (7) years in state prison; and/or
- A fine of two thousand dollars ($2,000) to ten thousand dollars ($10,000).28
Evading an officer causing death
If your evading an officer is alleged to have killed someone, then Vehicle Code 2800.3 will always be charged as a felony.29
The potential state prison sentence will be increased to four (4), six (6) or ten (10) years.30
And, if you are convicted of evading an officer causing either injury or death as a felony, then after you complete your sentence you will be banned from owning firearms in California under California's felon with a firearm laws.31
Vehicle impoundment; driver's license suspension
If you are convicted of evading an officer causing injury or death, then the judge will most likely:
- Impound the vehicle in which you fled from an officer, for up to thirty (30) days;32 and
- Suspend your driver's license for a period of time as a condition of your probation.33
Additionally, if you hold a commercial driver's license and commit the crime of Vehicle Code 2800.3 evading an officer causing injury or death, then your right to operate a commercial vehicle will be suspended for one (1) year.34
And your commercial driver's license will be taken away for the rest of your life if you accumulate more than one conviction for evading an officer—including misdemeanor evading under VC 2800.1 and reckless evading under VC 2800.2— all of which occurred while you were operating a commercial vehicle.35
The penalties for evading an officer causing injury or death are severe—particularly for a crime that does not require you to have actually intended to hurt anyone.
With the help of an experienced criminal defense attorney, you may be able to argue one of several legal defenses that can help you get your charges reduced or dismissed.
You didn't intend to evade an officer
All "evading an officer" crimes are specific intent crimes—which means that you are only guilty if you specifically intended to evade an officer.36
Sometimes people don't realize an officer is pursuing them. Or maybe they get pulled over in neighborhoods where they fear for their safety—and they aren't 100% sure that the person trying to pull them over is a law enforcement officer.
In this kind of scenario, you should be able to challenge the prosecution's claim that you specifically intended to evade an officer.
There is insufficient evidence that you evaded an officer
According to Santa Ana criminal defense attorney John Murray37:
“California evading an officer law—including Vehicle Code 2800.3—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. 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.”
If, for example, the police officer pursuing you was not in a distinctive uniform—or the prosecution can't prove that the car had a lighted red light visible to you—then you are not guilty of evading a peace officer causing injury or death.
Your driving wasn't a proximate cause of a death or injury
Often police and prosecutors will try to turn a simple evading an officer case into something bigger—by fabricating a connection to a death or injury where in reality there is none.
Let's say that a police chase happened to take place near a traffic accident in which someone was injured or even killed. That doesn't necessarily mean that the defendant is guilty of evading an officer causing injury or death.
If the prosecutor cannot show that the injury or death would not have occurred had you not evaded an officer—AND that the injury or death was a likely consequence of your behavior—then you should not be found guilty under Vehicle Code 2800.3.38
(You may, however, still face the lighter penalties associated with simple misdemeanor evading an officer under Vehicle Code 2800.1 VC, or felony reckless evading under Vehicle Code 2800.2 VC.39)
The injury was not “serious”
In a similar vein, prosecutors will often try to turn a misdemeanor or reckless evading an officer case into something bigger by seizing on a minor injury that occurred in connection with the chase—and trying to claim that it is a “serious injury.”
To fight this claim, your criminal defense attorney may hire medical expert witnesses to help probe the true extent of the “victim's” injuries.
If the prosecutor cannot convince the jury that the injury was serious, then you may only be convicted of misdemeanor or reckless evading an officer.40
The California Vehicle and Penal Codes contain several other offenses that may be charged instead of—or along with—evading an officer causing injury or death.
Misdemeanor evading an officer under Vehicle Code 2800.1 is the most basic “evading an officer” offense in California. If you evade an officer without driving recklessly or causing a serious injury or death, you will be charged with this offense.41
Misdemeanor evading an officer is what is known as a “lesser included offense” of evading an officer causing serious injury or death.42
This means that the jury may convict you of misdemeanor evading instead, if they determine that you evaded an officer but did not actually cause a serious bodily injury or death by 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
If you evade an officer in a vehicle—and in doing so you drive with a willful and wanton disregard for the safety of persons or property—then you may be charged under Vehicle Code 2800.2, California's felony reckless evading an officer law.44
Despite the name, felony reckless evading is actually a wobbler, though California prosecutors usually choose to charge it as a felony.45
The penalties for felony reckless evading are less severe than those for felony evading an officer causing injury or death. The former crime carries a potential state prison sentence of sixteen (16) months, two (2) years or three (3) years.46
If you are charged with Vehicle Code 2800.3 evading an officer causing death or injury for an incident in which someone was killed, then you may also face charges under Penal Code 192(c) PC, California's vehicular manslaughter law.
The crime of vehicular manslaughter is defined as:
- committing an unlawful act such as evading an officer, or a lawful act that may cause death, while driving a vehicle,
- with either negligence or “gross negligence,”
- as a result of which someone is killed.47
So, in other words, if you drive negligently while evading an officer and cause an accident in which someone was killed—you be convicted of both VC 2800.3 and PC 192(c).
If you are alleged to have driven with only simple negligence, then vehicular manslaughter is a misdemeanor. But if you are alleged to have driven with “gross” negligence, then it is a wobbler, with a potential felony state prison sentence of two (2), four (4) or six (6) years.48
That said, prosecutors could conceivably charge you with both evading an officer causing injury or death AND California second-degree murder—if they believe they can prove that your driving while evading an officer was reckless enough to constitute “malice aforethought.”50
In order to convict you of murder in connection with an evading an officer causing death charge, the jury would need to conclude that you knowingly drove in a dangerous fashion, with a conscious disregard for human life.51
Call us for help…
For questions about Vehicle Code 2800.3 evading an officer causing death or serious injury, 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 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.
1 Vehicle Code 2800.3 VC – Evading an officer causing death or serious bodily injury. (“(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 Section 2800.1 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.”)
3 People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375. (“The terms ‘serious bodily injury' [used in Vehicle Code 2800.3] and ‘great bodily injury' have substantially the same meaning.”)
Penal Code 243(f)(f) PC [definition of “serious bodily injury” for purposes of evading an officer causing injury or death law]. (“"Serious bodily injury" means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”)
4 Vehicle Code 2800.1 VC – Flight from pursuing peace 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.”)
5 Vehicle Code 2800.3 VC – Evading an officer causing death or serious bodily injury, endnote 1, above.
10 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2180 – Evading Peace Officer: Death or Serious Bodily Injury. (“The defendant is charged with evading a peace officer and causing (death/ [or] serious bodily injury). To prove that the defendant is guilty of this crime, the People must prove that: 1. A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle; 2. The defendant intended to evade the peace officer; 3. While driving, the defendant willfully fled from, or tried to elude, the pursuing peace officer; 4. The defendant's attempt to flee from, or elude, the pursuing peace officer caused (the death of/ [or] serious bodily injury to) someone else; AND 5. 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.”)
11 Vehicle Code 2800.1 VC – Flight from pursuing peace officer [a component of the crime of evading an officer causing death or injury], endnote 4, above.
12 CALCRIM 2180 – Evading Peace Officer: Death or Serious Bodily Injury, endnote 10, above.
14 Same. (“Someone commits an act [such as evading an officer causing death or injury] willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”)
15 Same. (“A vehicle is distinctively marked [for purposes of VC 2800.3] 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. 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.”)
16 See People v. Estrella (1995) 31 Cal.App.4th 716, 723. (“However, although we agree that a red light and siren alone do not distinctively mark a police vehicle, we conclude that under the circumstances presented here, the additional “devices” (see Webster's definition, supra) consisting of wigwag lights and the flashing blue and clear lights adequately identified Haskins's vehicle as a police vehicle [for purposes of California's evading an officer causing death or injury law].”)
17 See same.
18 CALCRIM 2180 (“[An act causes (death/ [or] serious bodily injury) if the (death/ [or] injury) is the direct, natural, and probable consequence of the act and the (death/ [or] injury) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.]”)
20 CALCRIM 2180 (“[There may be more than one cause of (death/ [or] serious bodily injury). An act causes (death/ [or] injury) only if it is a substantial factor in causing the (death/ [or] injury). A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the (death/ [or] injury).]”)
See also People v. Pike (1988) 197 Cal.App.3d 732, 748. (“Only when the defendant's grossly negligent conduct is a remote cause, and the negligent or reckless conduct of the victim or other party is the sole proximate cause of the death, will the defendant be relieved of culpability.”)
22 CALCRIM 2180 (“[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]”)
24 People v. Hawkins (1993) 15 Cal.App.4th 1373, endnote 3, above.
25 Vehicle Code 2800.3 VC
31 Penal Code 29800 PC – California's felon with a firearm law.
32 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 [evading a peace officer causing injury or death], 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.”)
33 Penal Code 1203.1 PC – Probation.
34 Vehicle Code 15300 VC – First time violations; hazardous material violations.
35 Vehicle Code 15302 VC –More than one violation.
36 CALCRIM 2180 – Evading Peace Officer: Death or Serious Bodily Injury, endnote 10, above.
37 Santa Ana criminal defense attorney John Murray is one of Southern California's leading experts on criminal offenses involving motor vehicles. He has considerable experience with evading an officer statutes and the interaction between those laws and other California motor vehicle laws, including DUI.
38 CALCRIM 2180 – Evading Peace Officer: Death or Serious Bodily Injury, endnote 18, above.
39 Vehicle Code 2800.1 VC
See also Vehicle Code 2800.2 VC
41 Vehicle Code 2800.1 VC
42 CALCRIM 2180 – Evading Peace Officer: Death or Serious Bodily Injury, Lesser Included Offenses.
43 Vehicle Code 2800.1 VC
44 Vehicle Code 2800.2 VC
See also Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail.
47 Penal Code 192(c) PC – Vehicular manslaughter
48 Penal Code 193 PC – Vehicular manslaughter; punishment. (“(c) Vehicular manslaughter is punishable as follows: (1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years. (2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year. (3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.”)
49 People v. Jones (2000) 82 Cal.App.4th 663, 669. (“There is no case law regarding the use of a violation of section 2800.3 as an underlying felony for felony murder. Here, the flight from officers was a felony only because it caused the death of a pedestrian. Absent resulting death or serious bodily injury, there is no felony and the underlying offense is a misdemeanor. Accordingly, absent the specific intent to inflict the harm required to elevate the offense to a felony, Jones had no "independent felonious purpose" for application of the felony-murder doctrine.”)
50 Penal Code 187 PC – Murder defined [could be charged along with evading an officer causing death or injury]. (“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)
51 California Jury Instructions, Criminal - CALJIC 8.11 - "Malice Aforethought"