Fleeing and attempting to elude is a serious motor vehicle offense set out at OCGA 40-6-395. It has some very harsh mandatory punishments in many cases.
Fleeing occurs when a driver of a vehicle willfully fails or refuses to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop. The signal may be by hand, voice, emergency light or siren. The officer must be in uniform displaying his badge of office and his or her vehicle must be appropriately marked as an official police vehicle.
Elements of the Base Offense
The base level offense breaks down as follows:
- Law enforcement officer
- in uniform with badge displayed
- in appropriately marked official police vehicle
- Signals stop
- by hand
- by voice
- by emergency light or
- by siren
- to the driver of a vehicle who
- fails or refuses to bring the vehicle to a stop or otherwise flees or attempts to elude a pursuing police vehicle or officer
- (when given a visual or audible signal to bring the vehicle to a stop) [that last bit seems redundant but it is repeated like that in the statute]
In many cases, the defense will focus on the issue of intent. Fleeing requires that the State prove that the driver committed the offenses willfully. Many driving offenses require no intent. They are basically strict liability offenses. You do not have to intend to speed or to violate the DUI statute. Unless there was some outside force which made it impossible for you to not commit the offense, then you can be held to account for it.
Willfulness ordinarily means that the act is done voluntarily and intentionally.
No Defense that Stop was Illegal
Georgia appellate courts have not been receptive to the argument that the driver was fleeing an unconstitutional seizure and have held that the person being stopped does not get to determine the legality of the stop and resist unlawful stops.
Passengers Can Be Charged
In some cases, passengers may be charged as parties to the crime. Parties to the crime is Georgia's expression of the idea of aiding or abetting a criminal offense. It can be based on conduct before, during or after the offense. So, for instance, where a passenger got out of the fleeing vehicle after it stopped and fled on foot, the passenger could be charged and convicted of fleeing, even though there was no evidence that the passenger was ever in control of the vehicle. A passenger who uses the chase to throw contraband from the vehicle can also be charged.
But where the passenger only occupies the passenger seat adn does not flee or resist arrest, the charge cannot be supported against the passenger.
Subject to Multiple Charges
It is subject to multiple charges. If more than one officer tries to stop the driver as set out above and the driver keeps fleeing, the State can charge the driver with fleeing each individual officer. That may require some clarification.
Ex. 1 Officer Friendly attempts to stop Driver. Driver flees. Friendly pursues. Officers Smiley and Happy in their individual patrol cars join the pursuit. They always stay behind Friendly until chase ends. Only Friendly gave the signal to stop. One charge of fleeing.
Ex. 2 Officer Friendly attempts to stop Driver. Driver flees. Friendly pursues. Officers Smiley and Happy in their individual patrol cars join the pursuit. Friendly spins out in a curve, so Officer Smiley moves up and is signaling Driver to stop with his lights and siren. Driver stops. Driver can be charged with fleeing Friendly and fleeing Smiley. So, two charges of fleeing and can be sentenced and punished for both. They will not merge.
Ex. 3 Officer Friendly attempts to stop Driver. Driver flees. Friendly pursues. Officers Smiley and Happy in their individual patrol cars join the pursuit. Friendly spins out in a curve, so Officer Smiley moves up and is signaling Driver to stop with his lights and siren. But, then Smiley runs off the road and into a duck pond. Officer Happy continues the pursuit with license and siren. So, Driver can be charged with three counts of fleeing.
At this point, I think you get the idea.
There are a number of aggravating factors that can increase the severity of the fleeing offense. Many fleeing offenses are highly susceptible to being upgraded to felony level. High speeds (in excess of 20 mph above the posted limit), in particular, shows up in many fleeing offenses. At any rate, the entire list follows:
- Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit
- Strikes or collides with another vehicle or a pedestrian
- Is the proximate cause of an accident
- Flees in traffic conditions which place the general public at risk of receiving serious injuries
- Commits a violation of:
- Code Section 40-6-144 (emerging from an alley, building, private road or driveway without yielding right-of-way)
- Subsection (a) of Code Section 40-6-163 (overtaking and passing school bus)
- Subsection (a) of Code Section 40-6-251 (laying drags)
- Subsection (a) of Code Section 40-6-390 (reckless driving)
- Subsection (a) of Code Section 40-6-390.1 (reckless stunt driving)
- Subsection (a) of Code Section 40-6-391 (DUI but excludes some special case DUI offenses)
- Leaves the state
The punishment for fleeing and eluding is complex and harsh. The punishment for an offense can be based on the number of prior convictions, but misdemeanor fleeing and felony fleeing do not seem to be interchangeable for that purpose.
A first, second and third lifetime offense of regular fleeing (meaning without an aggravating factor) is a high and aggravated misdemeanor. A fourth or subsequent offense of regular fleeing is a felony.
Sentencing is determined by the number of offenses within a ten year period measured by the dates of previous arrests for which convictions are obtained to the date of the current arrest. Those dates are kind of interesting because dates of arrest do not always match date of offense on fleeing cases. The DUI statute, for instance, uses dates of offense.
1st offense: 30 days to 12 months to serve (Incarceration beyond 30 days may be suspended, stayed or probated), fine range of $1,000-$5,000 and the fine is not subject to suspension, stay or probation.*
2nd offense: 90 days to 12 months to serve (Incarceration beyond 30 days may be suspended, stayed or probated), fine range of $2,500-$5,000 and the fine is not subject to suspension, stay or probation.*
1st offense: 180 days to 12 months to serve (Incarceration beyond 30 days may be suspended, stayed or probated), fine range of $4,000-$5,000 and the fine is not subject to suspension, stay or probation.*
*Even though the fine cannot be made a part of probation, if the judge determines that payment of the fine for a misdemeanor regular fleeing offense would impose an economic hardship on the defendant, the judge may order the defendant to pay the fine in installments, and enforcement may be as contempt or revocation of probation, or as a judgment. It is worth noting that it is highly suspect that probation could be revoked for violating an installment payment plan that cannot be made a condition of probation.
4th offense/felony regular fleeing: 12 months to 10 years to serve, fine range of $5,000-$10,000
As one might imagine, the punishment for felony fleeing (with an aggravating factor) is more harsh even than regular fleeing.
A person convicted of felony fleeing will have a fine of $5,000 to $10,000, plus surcharges and will be sentenced to imprisonment of between 12 months and 10 years. The imprisonment sentence is not subject to being suspended, probated, deferred, or withheld. Following adjudication, the charge is not subject to being reduced to a lesser offense or merged with any other offense. The imprisonment sentence cannot be served concurrently with any other offense.