We’ve all experienced it. A teacher or some other person in authority who demands that you obey their every command or face consequences. Well, that same demand for immediate compliance applies to law enforcement when an officer turns on those dreaded blue lights. You have to immediately pull over or you can be charged with a crime. That’s right, you can be charged with a crime if you don’t pull over fast enough for the officer. This crime of not pulling over as quickly as the officer believes you should is known as Fleeing or Attempting to Elude an Officer. Basically this charge is a trumped-up version of the crime of Resisting an Officer without Violence. As recently as the 1990s this charge was only a misdemeanor office, however, this is no longer the case. Now the same charge of Fleeing or Attempting to Elude is always a felony charge and can be either a third degree, second degree, or first-degree felony offense depending on the circumstances.
The crime of fleeing is covered in Florida Statute 316.1935 which states that in order to be charged with Fleeing or Attempting to Elude, a driver “must have knowledge that he or she has been ordered to stop, the order to stop may come in the form of sirens and lights activated, the officer’s vehicle must have an agency insignia and other jurisdictional markings prominently displayed on the vehicle”. Should all of these factors be present and a citizen still fails to stop, the charge of fleeing and attempting to elude is classified as a third-degree felony that is punishable by up to 5 years in prison as well as a driver’s license suspension for a period of one to five years.
A charge for fleeing or attempting to elude does not qualify for any withhold of adjudication, similar to DUI or drug trafficking charges, and even worse the car used in the chase may be considered to be contraband which makes it liable to being seized by law enforcement and subject to forfeiture. Yes, you read that right. Your vehicle can actually be confiscated just because an officer thinks that you didn’t pull over quickly enough.
It actually can get even worse. If the defendant attempts to flee at a high rate of speed or while driving recklessly, the charge becomes a second-degree felony that is punishable by up to 15 years in prison. However, if the chase causes serious bodily injury to any party, the charge becomes a first-degree felony which carries a minimum mandatory sentence of three years in prison. Now that you know the potential penalties, let’s take a look into potential defenses to this charge.
An example of this can be found in the case of Slack v. State, 30 So.3d 684 which was heard by the First District Court of Appeals in 2010. In this case, the defendant went on trial for a fleeing charge and was convicted by the court. When the case was appealed, the defense attorney in the case pointed out that the testimony of the officer failed to establish one of the elements of the crime. The officer had testified that he was driving a marked patrol car with lights on top. However, to satisfy the elements of this crime, the vehicle merely being marked is insufficient. This is because an essential element of the charge of fleeing or attempting to elude also requires that an agency insignia or other jurisdictional markings be prominently displayed on the vehicle. As the officer’s vehicle did not have these markings prominently displayed, Slack’s fleeing conviction was overturned.
A similar instance arose in the case of Gorsuch v. State, 797 So.2d 649, heard by the Third District Court of Appeals in 2001. In this case, the defendant was stopped during surveillance in regards to a suspected drug deal by officers who were wearing t-shirts that had police insignias. During the traffic stop, Mr. Gorsuch sped away against traffic and drove the wrong way down a one-way street, where he eventually crashed. The drug enforcement officers pursued in their unmarked police cars with the assistance of a third vehicle which had a 15-inch seal on the car’s door simply reading the City of Miami. The appellate court overturned Gorsuch’s conviction in this case, ruling that no sirens were activated during the pursuit and none of the involved vehicles had the proper agency insignia necessary to support the charge.
What happens when there is a necessity that makes it impossible for the defendant to stop for the police? In certain circumstances, necessity is a valid defense to a fleeing charge. One case in the state of Florida involved a woman who was pregnant and was rushing herself to the hospital because she was having complications and refused to stop for a police officer. The woman was arrested for fleeing but ultimately won her case on the basis of necessity due to the imminent risk to the health of her and her unborn child.
The defense of necessity requires six key elements. These include that the defendant must believe that an 1) emergency exists, 2) the emergency must threaten harm to the defendant or a third party, 3) the threat of harm must be real, imminent and impending, 4) the defendant must have no reasonable means of avoiding the emergency other than by committing the crime, 5)the crime must have been committed out of duress to avoid the emergency, and 6) the harm the defendant avoided must outweigh the harm caused by committing the crime of fleeing.
Imagine for a moment that you are the victim of an illegal traffic stop. For example, if a racist officer is patrolling an all-white section of town and he sees a black man with dreadlocks driving through his sector, and the officer decides to stop this individual who is doing nothing wrong. If in the course of this stop the officer smells weed, searches the vehicle, and proceeds to arrest the driver for possession. The contraband as well as the identity of the driver would be suppressed because the stop was illegal and unconstitutional, therefore such a case would be dismissed. However, what if the driver in this scenario didn’t stop for the officer, however they didn’t speed either. They simply declined to stop because they weren’t doing anything wrong.
This is what happened in the case of State v. Kirer, 120 So.3d 60, heard by the Fourth District Court of Appeals in 2013. In this case, officers tried to stop the defendant and Mr. Kirer, knowing that he had done nothing wrong, refused to stop for police. He didn’t speed, didn’t drive faster than 10 mph, and never ran any stop signs. He simply continued driving for around five minutes before being stopped. This is what caused problems for the defendant here. Had he simply stopped when officers first attempted to pull him over, the case would have been dismissed as unconstitutional because the traffic stop would have been illegal? However since Kirer didn’t immediately stop, the appellate court actually allowed him to be convicted of fleeing even though the traffic stop he allegedly fled was an illegal stop.
As you can see there are many factors to be considered in cases involving fleeing or attempting to elude. So if you or someone you know are facing this charge, call our office today at 407-278-7177. Our consultations are free so it won’t cost you anything to have us review your case and discuss your legal options.
