June 11, 2020 48299488 0 Comments

Misdemeanor Evading

A potentially very serious charge occurs when a driver fails to stop and yield to law enforcement (Vehicle Code section 2800.1).  The elements required to prove this charge are very clear and include:

  • patrol car is distinctively marked
  • exhibiting a solid/flashing red light (siren if needed)
  • driven by a law enforcement officer in uniform.          

Situations may exist where the driver could not properly observe the patrol car’s red light or was  distracted, or the officer’s car was plainly marked (“narc car”).  If so, a well-seasoned attorney may be able to use such circumstances to reflect a lack of intent to invade.  Additionally, if the distance that the defendant travelled (after being hailed to stop) was very short or negligible, this could also help in dismissing/reducing the evading charge, and minimizing the possible punishment.  

The penalties for this violation will include informal probation, fines/fees, up to 365 days in the county jail, two points on defendant’s driving record, and any other terms of probation that may be deemed appropriate and relevant (Cal-Trans, community service/labor).  In situations where the driver’s actions are aggravating, jeopardizing public safety, the charge may be filed as a felony.    

Felony Evading

Felony evading charges will be field in cases where, in addition to the elements described above, the defendant drives the car in a “wilful or wanton” disregard for the safety of others or property, or serious injury or death is caused as a result of the driver’s action (Vehicle Code section 2800.2 & 2800.3).  Needless to say, the penalties are much more punitive than a misdemeanor and can include probation and not less than 180 days in county jail, or in cases where probation is denied, a minimum of 16 months and up to 10 years in state prison.  

In cases of serious injury or death, a defendant can expect additional felony charges to be filed. In practical application, most prosecutor’s office’s treat this type of offense very seriously simply because of the risks and dangers imposed upon law enforcement officers in pursuit, as well as any innocent drivers or passerbys that happen to be in the path of evasion.  Consequently, it is not unheard of for even first offenders to be charged with a felony and receive an initial offer of 16 months state prison.  In any evading case, it is imperative that the defendant have counsel who can put together a meaningful “mitigation packet” (statement of remorse & awareness of dangers caused by his/her actions, counseling, etc.) that details the reasons why the client should garner consideration for a “probationary” offer instead.