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San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego Evading a Police Officer Criminal Lawyer

Evading a Police Officer in San Diego

Evading an Officer charge in San Diego is governed by the California Vehicle Code section 2800.1. The vehicle code section defines this particular driving offense as any person that intends to evade while operating a motor vehicle, by willfully fleeing from a peace officer pursuing the motor vehicle. If facing these charges, you should hire an attorney with experience in handling driving offense charges such as drug DUI.

The prosecution has the burden of proving each and every element of the evading arrest charge. First, the prosecution must prove beyond a reasonable doubt that the peace officer was pursuing the defendant and the defendant intended to evade the peace officer. Proving intent in critical in these types of cases. It cannot be a mere mistake or oversight but rather a willful act by the defendant. The prosecution can typically prove this element by proving the last element where they must show that the defendant violated at least two or more vehicle code violations that would warrant a point on your record.

Evading a Police Officer: Prosecution's Burden of Proof

It is easier for the prosecution to prove evading arrest when you have been observed by a peace officer doing one or more of the following acts:

  1. You ran a red light which the officer was pursuing you.
  2. You failed to stop at a stop sign while an officer was pursuing you.
  3. You were speeding while an officer was pursuing you.

It is not necessary that you did not know the police sirens were on at the time of the pursuit. As long as the prosecution can prove consecutive traffic violations were committed while being pursued, it will demonstrate intent. The peace officer will typically testify as to the distinctively marked car and how a reasonable person would have pulled over under the conditions. It is critical to hire a criminal attorney that has experience in cross-examining officers. It is important to determine the initial reason why the officer was making the initial stop. They must have a reasonable suspicion that a crime was being committed before the officer made the decision to conduct the stop.

What would happen if an officer were following you in an unmarked police car?

It is important that a police officer is in police uniform and on duty when they pursued the vehicle that failed to stop. It is an uphill battle for the prosecution to prove that you were evading arrest when there was a vehicle pursuing you that blended into the general population.

How can you fight an evading arrest charge in San Diego?

Every scenario plays out almost the same way where there exists a distinctly marked police car that pulls over a driver for some vehicle code violation. The police officer is in uniform and eventually stops the driver and as the police officer approaches the driver, then the driver pulls away and flees.
In order for the prosecution to be successful at convicting you on an evading arrest charge, they with have to prove you intended to flee the pursuing officer. It would be more difficult to prove that an officer was pursuing you during rush hour on a highway versus when there is minimal traffic on a single lane road. Also, if you were too drunk or intoxicated to realize you were being pursued, then you will not convicted of California Vehicle Code 2800.1.

What happens if you are convicted of Vehicle Code Section 2800.1?

Evading an officer can be filed as either as a misdemeanor or a felony charge. The punishment can be enhanced if you are also arrested for additional charges such as resisting or delaying a peace officer or reckless driving. Obviously there are going to be multiple traffic violations to prove the necessary elements for the evading charge. However, any conduct that is more serious than running a red light, speeding or failing to signal will be considered as an enhancement in your case.  

A serious enhancement would occur if there were any serious bodily injuries caused by the evading arrest. For example, if you were to cause an accident and hurt any third party while being chased, then it is likely that the prosecution will file felony charges against you.

Furthermore, if the vehicle that you fled in was not yours then it is possible that the prosecution will file additional charged under vehicle code section 10851(a). If you temporarily deprive someone of his or her vehicle and flee from a peace officer in that stolen vehicle, the driving in a stolen vehicle charge will be a more serious charge than the evading arrest charge. Typically you will see a San Diego prosecutor file a grand theft auto charge under penal code section 487 along with the evading arrest charge.

Do you go to jail if you are convicted of a felony evading an officer charge?

There are three statutes that address instances of evading a police officer while driving. The first one is Vehicle Code section 2800.1 which treats a simple evading charge with no danger to the community as a misdemeanor. There is typically no jail time for convictions under the first instance. However, under the second two sections Vehicle Code section 2800.2 and 2800.3 jail time is presumptive given that they are treated as felonies. Vehicle code section 2800.2 is a felony charge that does not mandate a period of incarceration except in a non-probationary sentence. It is treated as a wobbler offense, which can be filed either as a felony or a misdemeanor.

This is the middle of the three statutes saying you were a danger to the community but nobody was hurt by your actions. At the end of the spectrum is vehicle code section 2800.3 that requires a minimum period of incarceration as a condition of probation. This charge is only filed when there is a high degree of danger to the community and somebody did get hurt because of your actions. If there is serious bodily injury make sure to consult with an attorney to see if they can negotiate a reduction as to the severity of the charges filed against you.   

What if you did not intend to evade the police officer?

This is the biggest issue the prosecution faces in deciding either to file misdemeanor evading charges or felony evading charges. The prosecution has the burden of proving beyond a reasonable doubt that you had the intent to evade the officer. If the prosecution believes they can prove that the your actions were willful and there was a wanton disregard for the safety of others, then without a doubt the prosecutor will lean towards filing felony evading arrest charges against you.   

Nevertheless, to reach a conviction the prosecution has to prove more than just mere intent. To reach a conviction the prosecution has to prove the police officer was pursing you in a marked patrol car. The patrol car must have had at least one red light visible from the front of the vehicle and the sounds of the sirens must be working properly.  Next, the prosecution must prove you willfully fled and had the specific intent to evade the police officer. Additional vehicle code violations and erratic driving can help bolster the prosecutions case in chief.

Your Best Defense against Evading Arrest Charges in San Diego

If you have any questions about an evading arrest charge, please feel free to contact an experienced San Diego Criminal Defense attorney at 619.405.0063 or visit our website now.

Contact San Diego Evading a Police Officer Criminal Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063


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You have the right to remain silent and refuse to answer questions. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.