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Fleeing / Attempting to Elude Law Enforcement

Fleeing/Eluding Law Enforcement is one of the more serious traffic offenses, and even a first offense is a High and Aggravated Misdemeanor with potentially serious consequences. It may also serve as a predicate offense for the offense of Homicide by Vehicle, or even Felony Murder.

O.C.G.A. § 40-6-395 makes it unlawful to “willfully fail or refuse to bring his/her vehicle to a stop or otherwise flee or attempt to flee a pursuing police officer” after being visually or audibly signaled to stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer must be in uniform prominently displaying a badge, and the police vehicle must be marked as a police vehicle. This statute also criminalizes the impersonation of a sheriff, deputy, state trooper, GBI Agent, FBI Agent, police officer, or any other authorized law enforcement officer.  Under the statute, it is illegal to use a motor vehicle designed or marked to resemble a vehicle belonging to any of these law enforcement agencies.

Is Fleeing a Felony or Misdemeanor, and what are the penalties?

OffenseClassificationSentencing Range
Fleeing/Attempting to Elude Law Enforcement Officer – 1st Offense within a 10-year period of timeHigh and Aggravated MisdemeanorAt least 10 days but not more than 12 months imprisonment*,
AND

A fine of at least $500 but not more than $5,000.

*Note that all but 10 days may be probated at the judge’s discretion.
Fleeing/Attempting to Elude Law Enforcement Officer – 2nd Offense within a 10-year period of timeHigh and Aggravated MisdemeanorAt least 30 days but not more than 12 months imprisonment*,
AND

A fine of at least $1,000 but not more than $5,000.

*Note that all but 30 days may be probated at the judge’s discretion.
Fleeing/Attempting to Elude Law Enforcement Officer – 3rd Offense within a 10-year period of timeHigh and Aggravated MisdemeanorAt least 90 days but not more than 12 months imprisonment*,
AND

A fine of at least $2,500 but not more than $5,000.

*Note that all but 90 days may be probated at the judge’s discretion.
Operating vehicle in Excess of 20 mph Over the Speed Limit while Fleeing/Attempting to Elude Law Enforcement OfficerFelonyAt least 1 year but not more than 5 years imprisonment,
AND

A fine of $5,000.

*Note that the sentence may not be probated, deferred, or withheld, and the charge may not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense.
Striking or Colliding with Another Vehicle or Person while Fleeing/Attempting to Elude Law Enforcement OfficerFelonyAt least 1 year but not more than 5 years imprisonment,
AND

A fine of $5,000.

*Note that the sentence may not be probated, deferred, or withheld, and the charge may not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense.
Fleeing in traffic conditions which place the general public at risk of receiving serious injuriesFelonyAt least 1 year but not more than 5 years imprisonment,
AND

A fine of $5,000.

*Note that the sentence may not be probated, deferred, or withheld, and the charge may not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense.
Fleeing while Operating a Motor Vehicle while Blood Alcohol Concentration is 0.08 Grams or MoreFelonyAt least 1 year but not more than 5 years imprisonment,
AND

A fine of $5,000.

*Note that the sentence may not be probated, deferred, or withheld, and the charge may not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense.
Leaving the State while FleeingFelonyAt least 1 year but not more than 5 years imprisonment,
AND

A fine of $5,000.

*Note that the sentence may not be probated, deferred, or withheld, and the charge may not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense.

For sentencing purposes, the 10-year periods of time are measured by arrest dates, not by conviction dates. Furthermore, pleas of nolo contendre, or no contest, count as convictions for the purposes of determining the number of prior offenses.

Defenses in Fleeing Cases (and One Non-Defense)

Even if you have been charged with Fleeing/Attempting to Elude Law Enforcement, that does not mean you are guilty! There are numerous defenses in Fleeing cases. I’ve described just a few of them below. It is important to make sure you explain all of the facts and circumstances of your case with your Georgia Criminal Defense Lawyer so that he or she can accurately assess your case and determine if any of these defenses apply to you.

1. The officer (or his/her vehicle) was not immediately identifiable as law enforcement.

The circumstances of the individual case are relevant here. If the case involves a police officer in a vehicle attempting to stop the driver of a car, the police officer must be driving a marked police vehicle. If, however, the officer on foot is attempting to stop a person either on foot or in a vehicle, the officer must be in uniform or otherwise immediately identifiable as an officer. If these factors are not present, then all elements of the offense are not present and a conviction cannot be upheld. Stephens v. State, 278 Ga.App. 694 (2006).

Perhaps obviously, this defense depends on the circumstances of the case. For example, where a police officer made a valid stop in a marked police vehicle with lights and sirens, the court held that it was irrelevant if the officer was wearing plain clothes rather than a uniform.  English v. State, 261 Ga.App. 157 (2003).

2. The officer did not give a clear signal to stop.

For a person to be convicted of fleeing a law enforcement officer, the State must prove that the officer gave a clear signal to stop. Absent such evidence, a conviction cannot be sustained. Bradford v. State, 287 Ga.App. 50 (2007).

For an officer in a vehicle, this signal may take the form of a siren, flashing lights, or both. An officer need only use one signal, however. Even in a vehicle equipped with both lights and a siren, only one form of signal is required. Reynolds v. State, 209 Ga.App. 628 (1993).

3. One Non-Defense

The fact that the initial stop was improper is not a defense in a Fleeing or Attempting to Elude Law Enforcement case, according to the Georgia Court of Appeals. This is because fleeing is itself a separate and distinct offense. In Reynolds v. State, Reynolds was stopped in his car without a legally justifiable basis. Reynolds v. The State, 280 Ga.App. 712 (2006).  He fled on foot. Normally, a stop without a legally justifiable reason results in the suppression of any evidence found as a result of the illegal stop. But here, the Court held, the fleeing was a separate and distinct offense and provided the requisite probable cause for Reynolds’ arrest and subsequent search, during which the officers found drugs. Id.

Reynolds illustrates why fleeing is such a bad idea — if Reynolds had not fled, he likely would have been able to challenge the fruits of any subsequent search in court, and they probably would have been suppressed, possibly resulting in the dismissal of his case. But because he fled, that allowed the officers to search him and rendered the evidence admissible.

Do I need a Lawyer for a Fleeing case?

Yes, absolutely. The penalties for a Fleeing conviction are very serious, and judges are given a huge amount of discretion. For a first offense alone, you are looking at anywhere from 10 days to 12 months! This is a huge amount of leeway given to the judge. This is why you should always hire a Georgia Criminal Defense Lawyer who knows your jurisdiction. Don’t go to court alone. Call me today.



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Kevin Fisher


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