Fleeing & Eluding

Strong Criminal Defense Lawyer in St. Petersburg

Fleeing and Eluding is a unique traffic offense in that all degrees and variations constitute a felony and the court has no discretion but to impose a conviction after a plea of guilty or no contest is entered, or there has been a finding of guilt by the judge or jury. In many instances, and particularly for first offenders, the court has broad discretion to withhold adjudication, but not here. The conviction would prevent the person from sealing or expunging his or her record. Also, the court is required to suspend the person's driver's license for a period ranging from one to five years.

It was not always this way. Prior to July 1st, 2003, fleeing or eluding a police officer, where the officers lights and sirens were not activated, constituted a misdemeanor of the first degree. It was only where the lights and sirens were activated, with jurisdictional markings prominently displayed that the offense was elevated to a third degree felony. Today, either scenario constitutes a third degree felony. Prior to the amendment, the court had discretion as to whether the person's driver's license was to be suspended. Today, the suspension is mandatory and can be anywhere from one to five years. Also, the current version of the statute requires the imposition of minimum mandatory prison sentences in certain circumstances, which are set forth below. If you have been charged with Fleeing and Eluding, you should consult a experienced St. Petersburg, Clearwater, or Tampa area criminal defense attorney as soon as possible. There may be ways to avoid some of the penalties, depending on a number of factors and, as always, early intervention by a qualified criminal defense attorney is crucial.

Applicable Statute

Florida Statute § 316.1935 provides as follows:

• (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop by a law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
• (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with lights and sirens activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
• (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding: (a) drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; (b) drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person's vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding any other provision of law, the court shall sentence any person convicted of the offense described in this paragraph [(3)(b)] to a mandatory minimum of three years imprisonment. Nothing in this paragraph shall prevent a court from imposing a greater sentence of incarceration as authorized by law.
• (4) Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s. 316.027 or 316.061, having knowledge of an order to stop by a duly authorized law enforcement officer, willfully refuses or fails to stop in compliance with such an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to elude such officer and, as a result of such fleeing or eluding: (a) causes injury to another person or causes damage to any property belonging to another person, commits aggravated fleeing and eluding, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; (b) causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person's vehicle, commits aggravated fleeing or eluding with serious bodily injury or death, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The felony of aggravated fleeing and eluding and the felony of aggravated fleeing and eluding with serious bodily injury or death constitute separate offenses for which the person may be charged, in addition to the offenses under s. 316.027 and 316.061, relating to unlawfully leaving the scene of a crash, which the person had been in the course of committing or attempting to commit when the order to stop was given. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing aggravated fleeing or eluding with serious bodily injury or death to a mandatory minimum sentence of three years imprisonment. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as required by law.
• (5) The court shall revoke, for a period of not less than one year nor exceeding five years, the driver's license of any operator of a motor vehicle convicted in violation of subsection (1), subsection (2), subsection, (3), or subsection (4).
• (6) Notwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section. A person convicted and sentenced to a mandatory minimum term of incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory gain time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under 947.149, prior to serving the mandatory minimum sentence.
• (7) Any motor vehicle involved in a violation of Fla. Stat. § 316.1935 is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture under Fla. Stat. § 932.701, § 932.702, § 932.703 and § 932.704. Any vehicle not required to be titled under the laws of this state is presumed to be the property of the person in possession of the vehicle.

Applicable Jury Instructions

The following is a list of each element, of each variation, of fleeing and eluding offenses, which the state must prove as a condition precedent to a finding of guilt:

• Florida Standard Jury Instruction 28.6 (Fleeing to Elude a Law Enforcement Officer) provides as follows:

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the state must prove the following three elements beyond a reasonable doubt: (1) the defendant was operating a vehicle upon a street or highway in Florida; (2) a duly authorized law enforcement officer ordered the defendant to stop or remain stopped; and (3) the defendant, knowing he or she had been ordered to stop by a duly authorized law enforcement officer (a) willfully refused or failed to stop the vehicle in compliance with the order,or (b) having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.

• Florida Standard Jury Instruction 28.7 (Fleeing to Elude a Law Enforcement Officer with Lights and Sirens Activated) provides as follows:

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the state mist prove the following three elements beyond a reasonable doubt: (1) the defendant was operating a vehicle upon a street or highway in Florida; (2) the defendant, knowing he or she had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer; and (3) the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.

• Florida Standard Jury Instruction 28.8 (Fleeing to Elude a Law Enforcement Officer Siren and Lights Activated with High Speed or Reckless Driving) provides as follows:

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the state mist prove the following four elements beyond a reasonable doubt: (1) the defendant was operating a vehicle upon a street or highway in Florida; (2) the defendant, knowing he or she had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer; (3) the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated; and (4) during the course of the fleeing or attempt to elude, the defendant drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.

• Florida Standard Jury Instruction 28.81 (Fleeing to Elude a Law Enforcement Officer Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) provides as follows:

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the state must prove the following five elements beyond a reasonable doubt: (1) the defendant was operating a vehicle upon a street or highway in Florida; (2) the defendant, knowing he or she had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer; (3) the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated; (4) during the course of the fleeing or attempt to elude, the defendant drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property; and (5) As a result of the defendant's fleeing or eluding at high speed or wanton disregard for safety, he or she caused the death of][serious bodily injury to][another person][a law enforcement officer involved in pursuing or otherwise attempting to stop his or her vehicle].

• Florida Standard Jury Instruction 28.82 (Aggravated Fleeing or Eluding: Leaving a Crash Involving Injury or Death then Causing Serious Bodily Injury or Death) provides as follows:

To prove the crime of Aggravated Fleeing or Eluding, the state must prove the following seven elements beyond a reasonable doubt: (1) the defendant was the driver of a vehicle involved in a crash; (2) the defendant knew or should have known that he or she was involved in a crash; (3) the defendant: (a) knew or should have known of the injury or death of the person and/or (b) knew or should have known of the injury to the person; (4) the defendant: (a) willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until he or she had given "identifying information" to the [injured person][driver][occupant][person attending the vehicle or other damaged property] and to any police officer investigating the scene of the crash, or (b) willfully failed to render "reasonable assistance" to the injured person if such treatment appeared to be necessary or was requested by the injured person; (5) a duly authorized law enforcement officer ordered the defendant to stop; (6) the defendant, knowing that he or she had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop his or her vehicle in compliance with the order to stop][and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer]; and (7) as a result of the defendant fleeing or eluding, he or she caused [serious bodily injury to][the death of] the victim.

• Florida Standard Jury Instruction 28.83 (Aggravated Fleeing or Eluding: Leaving a Crash Involving Damage to a Vehicle then Causing Serious Bodily Injury or Death) provides as follows:

To prove the crime of Aggravated Fleeing or Eluding, the state must prove the following seven elements beyond a reasonable doubt: (1) the defendant was the driver of a vehicle involved in a crash resulting only in damage [to a vehicle][to property other than a vehicle] which was driven or attended by a person; (2) the defendant knew or should have known that he or she was involved in a crash; (3) the defendant knew or should have known of the damage to [the vehicle][attended property]; (4) the defendant willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until he or she had given "identifying information" to the [driver][person attending the damaged property] and to any police officer investigating the crash; (5) a duly authorized law enforcement officer ordered the defendant to stop; (6) the defendant, knowing that he or she had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop his or her vehicle in compliance with the order to stop][and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer]; and (7) as a result of the defendant fleeing or eluding, he or she caused [serious bodily injury to][the death of] the victim.

In all instances, the following definitions apply:

1. "Identifying information" means the name, address, vehicle registration number, and if available and requested, the exhibition of the defendant's license or permit to drive.
2. "Operator" means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].
3. "Reasonable assistance" includes carrying or making arrangements to carry the injured person to a physician or hospital for medical treatment.
4. "Street or highway" means the entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposed of vehicular traffic.
5. "Willfully" means intentionally, knowingly,and purposely.

"Vehicle" means means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devises used exclusively upon stationary rails or tracks.

In Florida, fleeing and eluding a law enforcement officer is always a felony offense. Upon conviction, the court has no discretion to withhold adjudication of guilt, and must suspend the accused person's driver's license from one to five years. Diversion programs are not available. If you have been arrested for fleeing and eluding in the Tampa Bay area, immediate intervention by an experienced St. Petersburg criminal defense lawyer can have a significant impact on the outcome of your case

Defenses to Your St. Petersburg, Clearwater, or Tampa Area Fleeing and Eluding Charge

In many ways, this is a high stakes offense - especially for the first time offender. Pre-trial intervention is not an option and, upon conviction, an adjudication of guilt is mandatory. A person's prior record, or lack thereof, has nothing to do with the prescribed penalties for this particular crime. While DUI also requires a mandatory adjudication, most people arrested for DUI are facing a misdemeanor charge. Not so here. A felony conviction can utterly ruin a person's life.

This is also an offense that lends itself to an i.d. defense more easily than other types of crimes. Police officers may be less inclined to pursue a fleeing suspect for obvious public safety reasons. Where a stop is not conducted at the time of the purported offense, the matter is usually referred to the state attorney's office on a non-arrested basis. If the prosecutor believes (based on the evidence) that there is a reasonable likelihood of successful prosecution, the charge will be filed and a warrant will be issued for the accused person's arrest. Of course, where there are significant proof issues, and there is not reasonable likelihood of successful prosecution, the state will usually file what is called a "no-information".

As a Pinellas county state prosecutor, I would carefully scrutinize potential identification issues when fleeing and eluding charges were referred to me on a non-arrested basis. Just because a particular vehicle was involved does not mean that the vehicle's owner was. Is the vehicle registered to more than one person? Did the police officer have an opportunity to see the driver? If so, how, and for how long? Is the officer familiar with the vehicle and/or its owner based on a prior interaction? Was the offense committed at night? How well lit was the area? Were the windows tinted? If an arrest was made at or near the time of the offense, where was the accused person located (e.g. somewhere outside of the vehicle)? If that is the case, was there more than one occupant? If the accused admitted to driving, were proper protocols followed with regard to any questioning (i.e. the reading or Miranda Warnings)? As a St. Petersburg criminal defense attorney, this is the same line of questioning I run through when interviewing a prospective client who is (or may be) facing a fleeing and eluding charge.

If identification is not an issue, your attorney will next want to examine the underlying circumstances. Is a prosecution, as charged, really warranted, given the severity of the associated penalties? In many instances, where the person has little or no prior record, and there isn't anything particularly aggravating about the case, the prosecutor may consider an amendment in charge. The amended charge will not carry the same mandatory sentencing provisions upon conviction (i.e. an adjudication of guilt or loss of license).

In a recent case, my client was charged with fleeing and eluding after he allegedly refused to stop while being pursued by a police officer. Based the way the report read, it appeared that the "chase" went on for some time. Upon being retained, I went to my client's house, picked him up, and had him video tape the route he traveled from the moment he saw the officer until he pulled into his driveway (where he was arrested). Experienced in real time, the events were far more benign that they appeared on paper. There was nothing untruthful about what the officer had written, but a video recreation really put the situation into context. Based on that, the state agreed to amend the charge to a misdemeanor obstruction without violence. This was of tremendous benefit to my client. He was a young man, with a good job and a lot of ambition to do well in life. A felony conviction would have completely derailed his plans for the future. With just a little leg work, that situation was avoided.

In another case, my client was arrested for fleeing and eluding, and the matter was referred for prosecution. My client was a young man with some significant learning disabilities. The officer attempted to stop him for a minor traffic infraction and, once he saw the flashing lights, he experienced a severe anxiety attack and did not pull over. He was arrested at his home a short while later. His parents were absolutely devastated over the prospect of a felony conviction and the loss of his driver's license. Based on my client's lack of prior contacts with the criminal justice system, documented mental health issues, and his genuine sense of remorse for not pulling over, the state elected not to pursue the fleeing and eluding charge.

Thus, even where there is no identity issue, and the state can prosecute as charged, the assigned prosecutor still has discretion and the vast majority are very fair, and very reasonable people. If mitigating circumstances can be presented effectively, the otherwise draconian sentencing provisions in fleeing and eluding cases may be avoided.

This is but a brief overview of the available defenses in these types of cases. There are many more potential defenses, the viability of which are often determined by the underlying facts of the case. If you have been arrested for fleeing and eluding in the Tampa Bay area, or think you might be, an experienced St. Petersburg criminal defense attorney can help.

Resources

The following is a list of links to outside sources, prior blog posts, and other website sections on topics related to fleeing and eluding offenses:

Links

1. HG. Org: St. Petersburg Fleeing and Eluding Defense Attorney
2. HG. Org: St. Petersburg Leaving the Scene of an Accident Defense Attorney

Blog Posts

1. Do I Need a St. Petersburg Criminal Defense Attorney?
2. They Never Read Me My Rights - Can My Charge Be Dismissed?
3. Speedy Trial in Florida: An Overview

The Bottom Line

Fleeing and Eluding is a very serious traffic crime in that it always constitutes a felony offense, and there is no provision to avert an adjudication of guilt. For a first time offender, the results can be devastating. The penalties are made that much worse by the license suspension that a court must impose upon conviction. If you have been arrested for Fleeing and Eluding, you need immediate representation by an experienced St. Petersburg/Clearwater/Tampa criminal defense attorney.

Contact our St. Petersburg office today to discuss your case.