Under California Vehicle Code § 2800.2, it’s a felony offense to intentionally flee a police officer driving a vehicle with the willful or wanton disregard for the safety of others. Reckless evading is a Felony but it also has the option of being charged as a misdemeanor.
The sentencing options for Felony or Misdemeanor Reckless Evading are below:
Misdemeanor
- Informal Probation up to 12 months
- 6 months to 1 year in County Jail
- Fines from $1,000 to $10,000
Felony
- Formal Probation up to 24 months
- 16 months, 2 years or 3 years in State Prison
- Fines from $1,000 to $10,000
What Does the Prosecution Need to Prove to Find You Guilty of Felony Reckless Evading Vehicle Code 2800.2?
The prosecution needs to prove the following elements beyond a reasonable doubt to find you guilty of Felony Reckless Evading according to Vehicle Code 2800.2?
- A Peace Officer was pursuing you in a motor vehicle;
- You were Driving a Motor Vehicle and Willfully fled from or attempted to elude the officer;
- During the Pursuit you drove with either:
- Willful or wanton disregard for the safety of others or property;
- You caused property damage while driving;
- You committed three or more traffic violations
- Law Enforcement vehicle needs to be Distinctively Marked meaning all the following are true:
- The front of the Police Vehicle had at least one visible lighted red lamp; and
- You either saw or reasonably should have seen the lamp; and
- The peace officer’s vehicle was sounding a siren as reasonably necessary; and
- The peace officer was wearing a distinctively marked uniform.
We will breakdown with which each of these elements mean.
1. A Peace Officer was pursuing you in a motor vehicle.
There must have been a real law enforcement officer in a police vehicle following you.
That means a police officer pursuing you in his family mini van will not work. The officer needs to be in an official police car with special markings. The extent of the markings on the police car you will see can be the bare minimum. We will discuss this more later in this article.
2. You were Driving a Motor Vehicle and Willfully fled from or attempted to elude the officer
“Willful” Intent means that you did an act on purpose and not as an accident.
“Driving” is defined as a person who has physical control of the vehicle and they caused the vehicle to move. There must be movement, but it can be very slight to apply.
3. During the Pursuit you drove with either:
- Willful or wanton disregard for the safety of others or property;
- You caused property damage while driving;
- You committed three or more traffic violations
These three factors are what makes the Evading a Reckless Felony Evading versus a simple evading. The prosecution only needs to prove one of these factors to find you guilty of Reckless Evading.
The most common that the Kolacia Law Firm sees in Felony Evading is the three are more traffic violations. The courts have found that the traffic violations do not have to be serious violations. The officer will typically note all the traffic violations while the vehicle is evading and then list all the violations making the case a Felony Evading.
4. Law Enforcement vehicle needs to be Distinctively Marked, meaning all the following are true:
- The front of the Police Vehicle had at least one visible lighted red lamp; and
- You either saw or reasonably should have seen the lamp; and
- The peace officer’s vehicle was sounding a siren as reasonably necessary; and
- The peace officer was wearing a distinctively marked uniform.
This element of the charge is the one most argued by criminal defense attorneys when the pursuit is by an undercover vehicle or the new CHP Stealth Vehicles on the freeways.
The Kolacia Law Firm had a case where the client was charged with Felony Evading. The defense in the case was the client was not aware there was a police vehicle behind him. When the Preliminary Hearing was held, the evidence showed the police officer was driving an undercover vehicle. The vehicle had a siren and a red light. But the officer never turned on the siren, and the red light flashed only moments before our client stopped his vehicle. Based on this evidence, the court ended up holding my client not criminally liable for Felony Evading.
What does a Distinctively Marked Police Vehicle Mean for Felony Evading?
Along with the siren and red lighted lamp on the front of the vehicle, the police vehicle must be distinctively marked. In a 2006 California Supreme Court case People v. Hudson, the court found that a distinctively marked vehicle means something more than a red light and siren BUT not much more.
In People v. Matthews the court said that a police vehicle does not even have to have police logos to be distinctively marked. The courts have held that the police vehicle should marked enough give reasonable notice to a fleeing motorist they are being pursued by the police.
For instance, in court cases the courts have found in addition to the red lamp and siren any one of the following were enough:
- Vehicle with the lights flashing in a “wigwag” patten
- California exempt plates on the police vehicle
- Large radio antenna on the police vehicle
The courts have found any one of those items on the vehicle were enough to call it distinctively marked.
What does a Distinctively Marked Uniform Mean for Felony Evading?
The officer involved with the felony evading pursuit must be wearing a distinctively marked uniform. The courts have held that this condition does not require the officer to be wearing a full-dress uniform. The uniform does not have to be complete but it needs to be enough to distinguish the officer as a member of law enforcement.
The officer can accomplish this purpose by wearing a patch on his shirt or coat. Some courts have found the duty belt with walkie talkie were enough.
What are the Penalties for Felony Reckless Evading in California Vehicle Code 2800.2?
Reckless Evading is a Felony offense. But despite the name the charge is considered a Wobbler. That means the District Attorney can file it as a Felony or a Misdemeanor.
In practice, the Prosecutor typically files Vehicle Code 2800.2 as a felony.
If Vehicle Code 2800.2 is prosecuted or reduced to a Misdemeanor then you face the following sentence:
- Misdemeanor Informal Probation
- 6 months to 1 year in jail
- A fine from $1,000 to $10,000
- Restitution to the victim if it applies
If Vehicle Code 2800.2 is prosecuted as a Felony, then you face the following sentence:
- Felony Formal Probation
- 16 months, 2 years, or 3 years in state prison
- A fine from $1,000 to $10,000
- Restitution to the victim if it applies
Additional Penalties
In addition to the sentence you receive above, regardless if it is a misdemeanor or felony, you will likely face additional penalties including:
- Loss of Driver’s License
- Impoundment of your vehicle
- Higher Insurance Rates
What are Some Defenses to Reckless Felony Evading?
At Kolacia Law Firm, we have represented a large number of people accused of traffic crimes, including Reckless Felony Evading. As a former prosecutor and defense attorney, Daniel Kolacia, has tried Felony Reckless Evading cases in court. Based on Kolacia Law Firm’s experience the following defenses have been proven effective in court with prosecutors, judges, and juries.
- You Didn’t Know the Police Were Following You
- You did not drive recklessly
- Mistaken Identity – Someone else was driving the vehicle
- Police did not have probable cause or reasonable suspicion to stop you
- The police vehicle was not distinctively marked or police officer not wearing a uniform
If none of the defenses work in your case and you have no criminal history usually the best course of action is to try to convince the prosecutor to reduce the charge to a misdemeanor. If the prosecutor is unwilling to reduce it to a misdemeanor, then your attorney can file a motion to the court to reduce the charge to a misdemeanor.
Related California Crimes to Felony Reckless Evading
Misdemeanor Evading Police – Vehicle Code 2800.1
- Definition: Willfully Fleeing the police with the intent to evade
- Penalties: Misdemeanor – up to 1 year in jail and fines up to $1,000
Reckless Evading with Serious Bodily Injury or Death – Vehicle Code 2800.3
- Definition: Willfully fleeing the police with the intent to evade causing injury or death
- Penalties: Misdemeanor – up to 1 year in jail and fines from $2,000 to $10,000
- Penalties: Felony – Causing Bodily Injury – 3, 4, 7 years in State Prison, fines from $2,000 to $10,000
- Penalties: Felony – Causing Death – 4, 6, or 10 years in State Prison, fines from $2,000 to $10,000
Reckless Evading While Driving Against Traffic – Vehicle Code 2800.4
- Definition: Willfully fleeing the police with the intent to evade and driving against traffic.
- Penalties: Misdemeanor – from 6 months to 1 year in jail, fines from $1,000 to $10,000
- Penalties: Felony – 16 months, 2 years or 3 years in State Prison, fines from $1,000 to $10,000
CRIMINAL DEFENSE FOR CALIFORNIA RECKLESS EVADING POLICE CHARGES
A conviction for felony reckless evading under California Vehicle Code 2800.2 carries harsh penalties such as the possibility of prison and loss of license.
At the Kolacia Law Firm, we have handled cases like this in Courts all over California. As a former prosecutor, Daniel Kolacia, will use his experience to review the details of your case in order to work out the best strategy for your case.
The Kolacia Law Firm is a top-ranked criminal defense firm representing people throughout Riverside, San Bernardino, and Orange Counties.
We are located at 8291 Utica Ave Ste 103, Rancho Cucamonga, California 91730. Contact our firm for a free case evaluation at (714) 725-7072.
