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Fleeing or Attempting to Elude

Fleeing or Attempting to EludeThink back to elementary school. Didn’t we all have that mean gym teacher that “demanded” you obey his commands, or else ten push-ups? That same demand for ‘immediate compliance’ applies when an officer turns on the dreaded flashing blue lights; we must instantly pull over—or it’s a crime. The crime of “not pulling over as soon as an officer thinks you should” is known as Fleeing or Attempting to Elude an Officer (FATE). Conceptually, a fleeing or attempting to elude charge is simply a trumped up resisting an officer without violence case. When I started practicing criminal defense in 1993, a fleeing charge was only a misdemeanor. Now, Fleeing or Attempting to Elude is always a felony of either the third degree (5 year maximum prison sentence), second degree (15 year maximum prison sentence), or first degree (depending upon the extent of personal injury caused by the car chase).

Fleeing charges are controlled by Florida Statute 316.1935, and several requirements must be met to find a citizen guilty of this crime. A driver must have “knowledge that he or she has been ordered to stop”, and this order must come from an “authorized law enforcement officer”. The “order to stop” may also come in the form of “siren and lights activated”. Of course, the officer’s vehicle must have an “agency insignia and other jurisdictional markings prominently displayed on the vehicle”. Should a citizen do all of the above things, the fleeing and attempting to elude charge is a third degree felony punishable by up to 5 years in prison, plus a drivers license suspension of at least one year (up to 5 years).

A fleeing or attempting to elude charge does not qualify for a withhold of adjudication (just like a DUI and trafficking charge, FYI), and the car used in this chase may be “deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture”. Wow, could they pile on any more punishment here, maybe some water boarding or cane lashings? So, you’re $50,000 new BMW (these things are now $70k & up, right?) may be confiscated because law enforcement thinks you didn’t pull over quick enough? Yes, it’s true.

Wait, it gets worse. Should the fleeing include driving at a high rate of speed, or reckless driving, the charge is upgraded to a second degree felony punishable by up to 15 years prison. Should the chase cause serious bodily injury to anyone, it’s a first degree felony carrying a minimum mandatory three years prison.Police Car Must be Properly Marked (Flashing Lights not Enough)

So, let’s dig into some of the details of what you came here for, to know how these cases are defended. A real life example of the technical nature of these charges can be found in the case of Sidney Slack v. State of Florida, 30 So.3d 684 (Fla. 1st DCA 2010). Slack went to trial on his fleeing charge and was convicted. On appeal, the criminal defense attorney correctly pointed out that the officer’s testimony failed to establish an element of the crime. The officer testified that he was driving a “marked patrol car, lights on top”. Id. You see, an element of this crime is NOT that the police car be “marked”, marked isn’t good enough. An essential element of a fleeing and attempting to elude charge additionally requires an “agency insignia and other jurisdictional markings prominently displayed on the vehicle”. So, even if the car is “marked” as a police car—that’s not good enough. The car must have (1) an agency insignia / jurisdictional markings that are (2) prominently displayed. Slack’s conviction for fleeing was overturned.

A similar issue arose in the case of George Gorsuch v. State of Florida, 797 So.2d 649 (Fla. 3rd DCA 2001). Gorsuch was stopped during surveillance regarding a drug deal, by officers who were wearing t-shirts with police insignias. During the vehicle stop, Gorsuch sped off against traffic, drove the wrong way down a one way street, eventually crashing. The drug enforcement officers gave chase in their unmarked vehicles, and a third vehicle had a 15” seal on the car’s door noting “City of Miami”. The court overturned Gorsuch’s fleeing and attempting to elude conviction, holding that no sirens were activated, and the vehicles did not have the proper agency insignia to support the charge.Can an Emergency Drive to the Hospital be a Defense to Fleeing (Necessity Defense)?

Necessity is a defense to a fleeing charge, but it can be a difficult to prove. In one Florida case, a woman who was seven months pregnant was rushing to the hospital due to complications, and she refused to stop for law enforcement. She was arrested for such, but eventually won her case based upon a necessity defense. This defense has six important elements: (1) defendant must believe an emergency exists, (2) the emergency threatens harm to the defendant or a third person, (3) the threatened harm must be real, imminent and impending, (4) the defendant has no reasonable means of avoiding the emergency except by committing the crime, (5) the crime must be committed out of duress to avoid the emergency, and (6) the harm defendant avoided outweighs the harm caused by committing the crime. See Williams v. Sirmons, M.D.Fla.2008, 563 F.Supp.2d 1315 (11th Cir.).The Legality of the Initial Stop may not Matter

I want you to suspend your disbelief for a moment, much like you do at the movie theater. It is common knowledge that we Americans have a Constitution. This document is the envy of the world, as it controls the behavior of our government to an extent never seen before in human history. Here’s how it works. Let’s say the government does something illegal/unconstitutional. Any evidence they find as a result of their illegal behavior becomes “fruits of the poisonous tree”, and the government cannot benefit from their bad behavior–so that evidence is “suppressed” and the case is thrown out (typically).

Let’s run through an example. A racist cop sees a black man with dreadlocks driving in his all white sector, and he stops the vehicle because he thinks black people don’t belong in his part of town. The cop smells weed, searches the car, and arrests the driver for possession of cannabis. The cannabis, and the identity of the driver, will be “suppressed” because the stop of the car was illegal, it was unconstitutional for obvious reasons. Case dismissed.

Take the same bad stop as above, but this time, the driver doesn’t stop. The driver doesn’t speed either, but simply doesn’t stop because he has done nothing wrong. In the case of State v. Kirer, the defendant/driver refused to stop for the police but continued to obey all traffic laws. 120 So. 3d 60 (Fla. 4th DCA 2013). He never sped. He never ran a stop sign. He never drove faster than about 10 mph. He just drove for under five minutes before being stopped. Police had no legitimate reason to stop Kirer, so, had Kirer stopped on time, the stop would have been illegal and unconstitutional, just as our example above. However, the appeals court permitted Kirer to be convicted of fleeing and attempting to elude conviction, even though Kirer was “fleeing” from an illegal police traffic stop. For more details on this poorly reasoned appellate conviction, please check out my article “Can the State Benefit from the Illegal Activities of the Police?

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