Evading Police

Evading Police under California Vehicle Code 2800.2

Most Americans will, at some point in their lives, be pulled over by police while driving. If, instead of pulling over, you drive away in order to avoid the police, you might be charged with a whole separate offense. Evading police is a crime under California Vehicle Code Section 2800.2 (“VC 2800.2”)

How can I be convicted of evading a police officer in California?

To convict a person of violating VC 2800.2, the prosecution has to prove, beyond a reasonable doubt, that

  1. The defendant was driving a motor vehicle
  2. The officer’s car is distinctly marked with a lighted red siren on the top or with some other marking showing to a reasonable person that it is a police vehicle, ordering you to stop
  3. The officer is in a distinctive uniform
  4. The defendant specifically intended to evade the officer AND
  5. The defendant drove with a reckless or wanton disregard for the safety of persons or property

The prosecution must prove ALL of these elements in order to convict someone of violating VC 2800.2. If, after hearing all of the evidence, the jury has any reasonable doubt as to any one of them, the jury will find the defendant “not guilty” of violating VC 2800.2. If, for example, the jury has reasonable doubt that the defendant specifically intended to evade the officer, then they will find the defendant “not guilty” even if they are otherwise convinced that the defendant was driving a motor vehicle away from a distinctly marked police vehicle with a lighted siren, driven by a uniformed officer.

Possible defenses to evading an officer

  • Specific intent

As mentioned above, the prosecution has to prove that the defendant “specifically intended” to evade the officer. It is not enough to show that the defendant drove foolishly or perhaps could have followed the officer’s orders more efficiently; they must show that the defendant actually wanted to evade the officer and avoid apprehension. This requires them to draw on circumstantial evidence of the defendant’s state of mind, and a successful defense of a VC 2800.2 charge should probe into innocent explanations for behavior that the prosecution might cast as incriminating. 

For example, suppose police turn on their sirens to pull the defendant over, but the defendant does not pull over immediately when some spots are available. If the defendant still pulls over in a safe spot sometime soon after the sirens light up, and only missed the previous spots because they were confused, then that defendant probably did not “specifically intend” to evade the police at any point in the short-lived chase.

To use another example, imagine a defendant who at first decides to try and evade an officer when first told to stop, but changes their mind after driving away for a few blocks and pulls over. In this case, the defendant still “specifically intended” to evade police at some point, and if the other elements are present during that part of the chase, then that defendant will probably be found guilty of evading police.

  • Officer or signal not distinctly marked

In some cases, a police officer does not so obviously appear to others as being “on duty.” Some officers work undercover or their vehicles do not look like traditional police cars. 

Suppose a uniformed officer drives an “unmarked” police vehicle and has a siren that they regularly attach to the roof of their car when they want to pull someone over or move through traffic in an emergency. If that officer decides to pursue someone, but they forget to attach their siren or their siren falls off, then the defendant may not be able to tell whether an officer is trying to pull them over, and in that case, the defendant should be found “not guilty” of evading an officer under VC 2800.2.

As another example, consider a case where police are in an obviously marked car and decide to follow the defendant without ever lighting their siren. The defendant, suspicious that they might be the subject of a “tail”, drives away from the police car. Even if that defendant is “specifically intending” to escape the police’s view, the defendant would be not guilty of evading police, at least for that span of time (if police later light their sirens to pull the defendant over, an evading charge might be proper if the defendant drives recklessly)

  • Did not drive in a reckless or wanton manner

Even where the defendant deliberately tries to drive away from police in order to avoid a stop, it is only a crime under VC 2800.2 if the defendant also drives in a reckless or wanton manner. The prosecution has to show that the defendant drove in a way that jeopardized the safety of other people or property.

Unlike the “specific intent” element of VC 2800.2, the prosecution does not have to prove that the defendant actually tried to hurt anyone to win a conviction for 2800.2. However, they still have to show that the defendant drove in some type of unsafe way while trying to evade police. This means that the prosecution has to show, beyond a reasonable doubt, that the defendant was aware of a serious risk to the safety of others or their property, and that the defendant intentionally ignored this risk.

Refusing to stop when ordered by police, while driving slowly over a low traffic country road, might not count as “reckless or wanton”, because while obnoxious, there probably is no great risk to anyone’s safety. However, car chases are still inherently dangerous, and so a faster chase might still be considered “reckless” towards the safety of the pursuing officers. 

Also note that the California legislature has determined that, if while driving, you commit 3 or more traffic offenses that would count as a “point” on your license, then you are considered to be driving with reckless or wanton disregard for the safety of others.

Possible punishment for evading an officer

Evading an officer under VC 2800.2 is a “wobbler” under California law, which means that it can be charged as either a felony or a misdemeanor.

As a misdemeanor, evading an officer can be punished by six months to one year of imprisonment in the county jail, a fine of up to $1000, or both. As a felony, evading an officer is treated as a much more serious offense and can be punished by state incarceration for 16 months, 2 years, or 3 years, a fine of up to $10,000, or both.