California Evading Arrest
Vehicle Code 2800.1, “evading a peace officer,” makes it illegal to willfully attempt to flee from a police officer who is pursuing you in a car (or on a bicycle), while driving a motor vehicle.
The charges of evading a police officer will only hold if the district attorney can prove all of these elements:
California Evading Arrest
1. The police car had at least one red light on and it was visible from the front, and you saw or reasonably should have seen it
2. You purposely intended to evade the police
3. The police car had distinctively markings
4. The police car sounded a siren (as needed)
5. The police car was driven by a peace officer wearing a distinctive uniform.
Vehicle Code 2800.1 is known as “misdemeanor evading an officer”. It is similar to but less serious than Vehicle Code 2800.2 “felony reckless evading” and Vehicle Code 2800.3 “evading an officer causing injury or death.”
Here are a few examples that could result in misdemeanor evading an officer charges:
1. A man is speeding on the freeway with marijuana in his pocket. A CHP officer turns on his lights and siren and tries to pull him over. Knowing he has marijuana, he refuses to pull over and weaves through traffic in an attempt to get away.
2. A woman who had her license suspended following a DUI conviction drives anyway to get to school. A cop tries to pull her over for expired tags. She refuses to pull over, knowing her license is suspended, and leads the officer on a chase.
The penalties for a misdemeanor conviction for evading in California include:
1. Up to $1,000 fine
2. Up to 1 year in county jail
3. The vehicle used to allegedly evade the officer can be impounded up to 30 days.
Also see 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 [misdemeanor evading an officer], 2800.2, 2800.3, 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.”
With an experienced criminal defense attorney, you have some of the following options as legal defenses against charges of misdemeanor evading an officer:
1. There is insufficient evidence that your behavior met ALL the elements that legally define evading an officer
2. You did not have the intention to evade an officer;
3. Voluntary intoxication—which can help show that you did NOT have the intent. The prosecutor must prove intent to get a conviction for this crime.
Our California criminal defense attorneys will address the following to help you better understand misdemeanor evading an officer in California:
1. You were operating a motor vehicle and you intended to evade the officer by willfully eluding or trying to flee from the police
2. A law enforcement officer driving a motor vehicle was pursuing you
3. You saw OR reasonably should have seen the red light at the front of the officer’s vehicle
4. There was at least one red light on the officer’s vehicle, it was turned on, and it was visible from the front of the officer’s vehicle
5. The officer’s vehicle was sounding a siren (as reasonably necessary)
6. The officer’s vehicle had distinctive markings
7. The officer was wearing a distinctive uniform.
Vehicle Code 2800.1 basically states that it is against the law to flee from a distinctively marked police car. Evading an officer who is riding a bicycle is also a crime, but it is defined differently. Because that rarely happens, this page focuses on cases involving police cars.
“Willfully” means “on purpose.” The prosecutor must prove that you evaded on purpose. it does not matter if you intended or did not intend other things as well. You do NOT need to have intended to injure someone, or break a law.
For example, Robert is a senior citizen who is developing dementia. While driving, he “zones out” due to his condition and is not aware of his surroundings. He is driving 45 mph in a 25 mph zone. A police officer sees him and tries to pull him over.
But Robert does not recognize that the police officer is sounding the siren and flashing his lights at him. He continues driving at 45 mph without noticing.
Robert should be found not guilty of misdemeanor evading an officer because he was not intending to evade the officer.
Evading an officer is a crime requiring “specific intent.” You are only guilty if you specifically intended to evade a police officer. If you fled from the police officer in your car for any other reason, then this can provide a potent option to defend your actions.
For example, Sam’s pregnant wife, Tanya, is in labor. They get in their auto to drive to the hospital.
Tanya’s contractions are very close together, which makes Sam nervous. He drives over the speed limit to get to the hospital quickly.
A police officer in a patrol care tries to pull Sam over for speeding. But Sam is worried that Tanya will give birth at any moment and continues driving above the speed limit to the hospital. Sam finally stops in front of the hospital and the police officer arrests him.
Sam’s intent was to get Tanya to the hospital quickly. It was not his intent to evade the police officer. Because of this, Sam is not guilty of evading an officer.
For charges of VC 2800.1 to stick, the police car must have distinctive markings in addition to the red light and siren. Examples of “distinctive markings” include: blue or white lights that flash and are visible from the car being pursued, the name or seal of a law enforcement department marked on the outside of the car, and/or flashing headlights (sometimes called “wig-wag” lights). If the police car did not have a distinctive marking in addition to the red light and siren then you are not guilty of evading.
For example, Long Beach PD officers Victor and William are patrolling the streets in a plain car that has a siren hidden behind the grill, a red light inside the cabin under the rearview mirror and blue and amber blinking lights in the back. The officers see a woman named Zelda hand something to a man and exchange some money, and then the other man walks away quickly.
When Zelda drives off in her car, officers Victor and William follow her. They turn on their siren, red light, and blinking blue and amber lights. Zelda decides not to pull over and instead runs red lights at intersections to try to get away from the officer’s car.
Zelda is unable to loose the officers so she finally decides to pull over. They find marijuana in baggies in her car and charge her for the marijuana and VC 2800.1.
Since the blinking blue and amber lights were on the back of the car, the district attorney is unable to prove beyond a reasonable doubt that those lights were visible to Zelda. This means the officers’ car did not have distinctive markings apart from the red light and siren and Zelda is not guilty of evading an officer.
It also important to note that there must be a RED light visible from the front of the officers’ vehicle. If there is no red light, the defendant is not guilty of evading an officer, even if there is every other kind of marking imaginable on the vehicle.
“Distinctive uniform” means clothing adopted by a law enforcement agency to distinguish its members from the general public. There is no requirement for how complete the uniform has to be or any requirement for formality to the uniform.
A vest with the word “Police” is sufficient enough to distinguish an officer for California’s evading an officer law. But, if he is wearing just a badge with plain, street clothing it is not considered distinguishing.
For example, officers obtained a warrant to arrest Adam and went looking for him. He spots the officers and drives away. Two officers in a car get right behind him and follow. One of those officers behind him was dressed in a bulletproof vest that had the word “Police” on it. The officer was also wearing a holster with a gun.
The other officer was in plain clothes but also wore an unmarked bulletproof vest, a holster with a gun, and a baseball cap that had the word “Police” written across the front.
Neither officer was in a full police uniform, but their outfits satisfy the requirements for Adam to be found guilty of evading an officer.
1. Up to one year in jail
2. Summary probation
3. The vehicle used to flee from an officer can be impounded for up to 30 days
4. A fine of up to $1,000
5. Driver’s license suspension during your time on probation
You can be charged with only one count of evading an officer for each event, it doesn’t matter how many officers you fled from.
Commercial driver’s license suspension
If you are in a commercial vehicle and have a commercial driver’s license and you evade the police, then your privilege to drive a commercial vehicle will be suspended for one year. Any subsequent violation of Vehicle Code 2800.1 VC while driving a commercial vehicle will result in a lifetime loss of the commercial driver’s license. If you have a commercial driver’s license you probably rely on it for work, so this would be a very serious penalty.
Lack of specific intent
To be found guilty of violating Vehicle Code 2800.1 you must have specifically intended to evade the officer pursuing you. This is a critical element.
There are many circumstances that can provide defenses to that element. Maybe you were preoccupied and didn’t realize the officer was trying to pull you over. Or maybe you feared for your safety because you were not completely sure it was a legitimate police car and were simply trying to get to a safer location where you could pull over. Any of these scenarios can provide a valid challenge to the district attorney’s claim that you specifically intended to evade an officer.
Vehicle Code 2800.1 VC specifies requirements for the appearance of the officer and his car in order to prove misdemeanor evading an officer charges. This means the district attorney must provide evidence that all of these requirements are met. In a surprising amount of cases they do not have that evidence. You are not guilty of evading an officer if there is not enough evidence to prove the officer’s car was clearly marked.
The legal defense of voluntary intoxication
Voluntary intoxication is also a defense option to charges of evading an officer. To use this defense the following must be true:
1. During the commission of the act you were under the influence of drugs or alcohol
2. The intoxication affected you so you could not make an intentional decision to evade the police
Of course, arguing this point may give the prosecutor evidence to use against you in a DUI charge. Depending on your situation, you may prefer to face DUI charges if the potential penalties would be less in your case than the potential penalties for evading. For example, a first-time DUI comes with potential jail time of up to 6 months but misdemeanor evading an officer can get you 1 year in jail.
Also, you may be more comfortable dealing with the stigma associated with a DUI conviction on your record than the stigma that comes with a conviction for evading the police.
Since it is a felony, 2800.2 can mean a state prison sentence. Technically, this crime is a California wobbler. A wobbler is a crime that be charged as a misdemeanor or felony at the discretion of the prosecutor. However, California prosecutors almost always charge it as a felony.
As a felony, reckless evading can be punished by up to three years in state prison, and a fine of up to $10,000.
Disturbing the Peace only carries a potential county jail sentence of up to 90 days and a fine of up to $400. This is a much lesser penalty. Plus, disturbing the peace carries much less of a stigma than evading an officer when someone sees it on your criminal record.
If, after reading this article, you would like more information, we invite you to contact us at the Law Offices of Marc Grossman.
Call us for help…
For questions about Vehicle Code 2800.1 evading an officer, or for a free confidential consultation with one of our California criminal defense attorneys, do not hesitate to contact us at the Law Offices of Marc Grossman.
We have local criminal law offices in and around San Diego, Los Angeles, Riverside, Orange County, Ventura, San Bernardino, and several nearby cities.
You may also find helpful information by searching for information on Vehicle Code 2800.2 Felony Reckless Evading Law; Legal Definition of a California Misdemeanor; California Marijuana Possession Health & Safety Code 11357 HS; Vehicle Code 2800.3 Evading an Officer Causing Injury or Death; California Driving on a Suspended License Charges; Penalties for a DUI Conviction in California; The Legal Defense of Voluntary Intoxication; Common Legal Defenses to California Crimes; Selling or Transportation of a Controlled Substance Health & Safety Code 11352 HS; California “Felon with a Firearm” Penal Code 29800 PC; Elderly Drivers and the California DMV; 20 Ways to Beat a California DUI; Misdemeanor (Summary) Probation in California; The Legal Definition of a California Wobbler; DUI of Drugs in California; Penal Code 415 PC “Disturbing the Peace”; and Legal Definition of a California Felony.