Evading a Police Officer – California Vehicle Code Sections 2800.1 and 2800.2
Joseph was riding his motorcycle on a city street and made an illegal turn. A nearby police officer observed the maneuver and activated his overhead lights to pull Joseph over. Joseph was afraid that if he got another ticket his drivers’ license might be suspended. So instead, Joseph accelerated and led the police on a chase through a number of city streets. Joseph reached the speed of 100 miles per hour and many police officers joined in on the pursuit. Joseph did lose the police officers at one point but once Joseph was located the pursuing police officer could identify Joseph based on the clothing that he was wearing. Eventually Joseph was caught and arrested.
Aside from some speeding tickets Joseph had a clean record and was making an effort to join the military. I took over this case when Joseph’s original attorney was unable to get the D.A. to reduce the charge from a felony to a misdemeanor. I was able to gather a number of letters of support for Joseph and demonstrate to the District Attorney that the incident was a one time lapse in judgement for Joseph. As a result, I was able to get the charge reduced to a misdemeanor with two years’ probation and some community service. When Joseph completes probation we will be able to get his record expunged.
WHAT IS EVADING AN OFFICER?
V.C. 2800.1, or evading a police officer, occurs when a person who is operating a motor vehicle intentionally flees or otherwise intentionally attempts to elude a pursuing police officer’s motor vehicle.
To prove that the defendant is guilty of evading a police officer under V.C. 2800.1, the prosecution must prove the following facts or elements:
- The officer’s vehicle exhibited at least one lighted red lamp visible from the front, and the fleeing individual either saw the red lamp or reasonably should have seen the lamp;
- The officer’s vehicle sounded a siren as may be reasonably necessary;
- The officer’s vehicle was distinctively marked; and
- The officer driving the pursuing vehicle is a peace officer (as defined by Chapter 4.5 of Title 3 of Part 2 of the Penal Code) who was wearing a distinctive uniform.
EXAMPLES OF EVADING AN OFFICER
- Shannon is driving to work one day when a uniformed police officer attempts to pull her over for her vehicle’s expired tabs. After seeing the marked police car turn on its lights behind her, Shannon becomes scared because she’s driving without car insurance. Not wanting to get into trouble, Shannon fails to pull over and attempts to lose the police officer by suddenly turning down a side street. Shannon can be charged with evading a police officer because she intentionally tried to escape from the police officer.
- Mark and Lucy are driving back from a concert one night when they notice a police car flashing its lights behind them in an attempt to pull their vehicle over for erratic driving. Convinced that he has done nothing illegal, Mark refuses to pull over and instead drives home with the police officer in pursuit. Mark’s refusal to pull over means that he can be charged under V.C. 2800.1 for intentionally fleeing from the pursuing police officer.
- Edward is driving home one night when a plain-clothes police officer attempts to pull him over for speeding. Focused on singing along to the radio, Edward fails to notice the unmarked police vehicle behind him and continues driving. Edward is not guilty under V.C. 2800.1 both because the police officer’s vehicle was not distinctively marked and because he did not intentionally try to evade the police.
PENALTIES FOR V.C. 2800.1
V.C. 2800.1 is a misdemeanor and can result in the following penalties:
- Misdemeanor summary probation, which can last between one to five years, and which may include your license being suspended as a condition of probation;
- Imprisonment up to one (1) year in a county jail;
- A maximum fine of $1,000; and/or
- Your vehicle being impounded for up to thirty (30) days.
Note, if a commercial driver’s license holder violates V.C. 2800.1 while driving a commercial vehicle, he may lose his commercial license for a year. Furthermore, the driver can lose his license permanently if he is convicted of multiple violations of V.C. 2800.1.
Penalties for V.C. 2800.1 can be increased or enhanced in certain situations. Most common among these include:
- Evading the police with “wanton disregard” for the safety of others and/or their property can result in the defendant being charged with the felony of recklessly evading an officer;
- If, in the process of violating 2800.1, the defendant causes serious bodily injury or death to another person, the defendant can be charged under V.C. 2800.3 and sentenced for up to ten (10) years in prison, depending on the severity of the injury.
COMMON DEFENSES FOR V.C. 2800.1
- The defendant did not intentionally flee from the police officer. This arises in situations such as when the defendant failed to realize she was being pursued, or when the defendant’s evasion was the result of an emergency.
- The defendant was voluntarily intoxicated, such that he was unable to form the specific intent required by V.C. 2800.1.
- The defendant could not pull over immediately because it was unsafe to do so.
- The officer was not wearing a distinctive uniform, or somehow failed to dress in a way that indicated that he was a police officer. Similarly, the defendant can raise the defense of the police vehicle not being distinctively marked (such as when the police officer is using an undercover vehicle).
FELONY EVADING – V.C. 2800.2
Under V.C. 2800.2, a defendant can be charged with felony evading a police officer if she evades a police officer in violation of 2800.1 and in the process of doing so, she drives with a willful or wanton disregard for the safety of others and/or their property. Willful or wanton negligence or disregard occurs when a person is aware that her actions present a substantial and unjustifiable risk or harm and yet she intentionally ignores that risk (even if she did not intend to cause damage).  Willful or wanton disregard also occurs when the defendant causes damage to property, or commits three or more violations that are all assigned a traffic violation point count under Section 12810.
Somewhat confusing, reckless evading is actually a wobbler crime, such that it can be charged as a misdemeanor or as a felony. If charged with a felony under V.C. 2800.2, the defendant can face penalties including: sixteen (16) months, two (2) years, or three (3) years of imprisonment in a state prison and/or a maximum fine of $10,000, as well as immediate license suspension.
It is worth noting that if a defendant causes the serious bodily injury or death of another person in the process of evading an officer, he can be charged under V.C. 2800.3 and have his license be immediately suspended pursuant to V.C. 13351, among other penalties.
Example of Felony Evading:
- Anne is driving home through a school zone after leaving a neighborhood bar one afternoon. Having recently consumed several alcoholic beverages, she belatedly realizes that the police car behind her is signaling for her to pull over. Not wanting to endanger her spotless driving record, she speeds up to about 60 miles per hour, and begins weaving around children who are in the midst of crossing the street. Considering that Anne has disregarded a clearly high risk of harm, she is likely to be charged with a felony under V.C. 2800.2, in addition to her other crimes.
HOW WE CAN HELP
 CALCRIM 2181. Evading Peace Officer: Reckless Driving. “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, and (2) he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.”
 Ibid. “Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point.”
 Vehicle Code Section 13350(a): “The department immediately shall revoke the privilege of a person to drive a motor vehicle upon receipt of a duly certified abstract of the record of a court showing that the person has been convicted of….(2) A felony in the commission of which a motor vehicle is used, except as provided in Section 13351, 13352, or 13357.”