The Crime of Felony Vehicular Eluding 18-9-116.5

Whether in the Denver area, or anywhere in Colorado Felony Eluding occurs when a person willfully attempts to flea or elude a pursuing law enforcement vehicle that is being driving with at least one lighted lamp displaying red or red and blue lenses, or while the siren is activated.

If the person is fleeing from police (even if just for a minor traffic ticket), and they subsequently cause an accident which involves the death of another person, then they can be charged with Capital First Degree Murder. However, this scenario normally does not occur, and persons are normally charged with a class five (5) felony if their case does not involve a subsequent accident.

Here is the Actual Law:

18-9-116.5. Vehicular Eluding
  1. Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he or she is being pursued by said peace officer, and who operates his or her vehicle in a reckless manner, commits vehicular eluding.
    1. Vehicular eluding is a class 5 felony; except that vehicular eluding that results in bodily injury to another person is a class 4 felony and vehicular eluding that results in death to another person is a class 3 felony.
    2. Notwithstanding section 18-1.3-401, the minimum sentence within the presumptive range for a violation of this section shall be increased as follows: (I) For a class 5 felony, the minimum fine shall be two thousand dollars; (II) For a class 4 felony, the minimum fine shall be four thousand dollars;
Possible Defenses to Colorado Vehicular Eluding

The most common defense we see for Colorado Vehicular Eluding is the defense of “Lack of Knowledge”. This occurs when a person does not realize that the Officer is behind them (because they have their stereo on loud and they are looking straight ahead while driving at night) or because they believe the Officer is chasing somebody else.

The Government must prove the elements of the offense beyond a reasonable doubt. It must be shown that the person “knowingly” attempted to elude police.

Other times, a person will realize that the police have activated their lights behind them, but the person is waiting to pull over in a safe, well-lit area before stopping their car. This occurs most often on the freeway where people wish to make an exit off the busy portion of the roadway before stopping their cars.

Sometimes police officers become upset, and they will add the charge of Vehicular Eluding from Police to what would have otherwise been a normal misdemeanor traffic citation. It is critical to interview all available witnesses (if there were any) in order to show this was not a true “Flight”.

Data can be downloaded from the statistical and diagnostical module (i.e., the “Black Box”) from newer model vehicles. If that data is downloaded, it can be shown that there was no high rate of speed, no rapid acceleration, and no other indication of true “intent to flee”.

The “Common Defenses”, which may apply in any criminal case are numerous and diverse. One of the most common defenses is a Miranda Rights Violation.” In Colorado, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard.

If it can be demonstrated that the police coerced the suspect (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or the police did not properly read you your Miranda Rights, then the suspects statements and any evidence gathered as a direct result of those statements may not be admissible at trial.

Denial of Right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues.

Other defenses include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of the case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; etc.

Finally, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction

Recent Colorado Case of Vehicular Eluding:

The People of the State of Colorado, Plaintiff-Appellee, v. Tom Wendell Barrus, Vehicular Eluding Incident

Defendant was convicted under a statute that provided in part:

Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he or she is being pursued by said peace officer, and who operates his or her vehicle in a reckless manner, commits vehicular eluding.

Ch. 171, sec. 17, § 18-9-116.5, 2000 Colo. Sess. Laws 698;cf. § 18-9-116. 5(1), C.R.S. 2009 (same language).

Here, the deputy testified that he arrived in a marked car, was wearing his deputy sheriff uniform, announced his presence, and ordered defendant to stop. He further testified that he continued to yell orders at defendant and even attempted to tase him as he fled.

A second deputy testified that he saw defendant’s vehicle and pursued him closely with lights and sirens. The second deputy testified that he discontinued the chase when defendant almost hit a minivan, forced another car into oncoming traffic, and drove in reverse, nearly hitting the deputy’s car.

We conclude there is ample evidence in the record for a reasonable person to conclude that defendant knowingly eluded a peace officer in a motor vehicle. See Kogan, 756 P.2d at 950.

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