Fleeing and Eluding

Fleeing and Eluding - The Scary Truth About Georgia Law

     We have seen such a huge increase in charges for Fleeing and Eluding lately in Georgia. It's no doubt in a part because of an increase in people running from the police. Obviously, this is not something that the police like to see. But as a result of the increase in the concern over these incidents, it means that more people who are innocent of truly fleeing and eluding are being accused of it as well. The scary part about fleeing and eluding convictions is that they now require mandatory jail time, even if it's only as a misdemeanor. If it's a felony, there is a mandatory minimum of 12 months in custody! Since there are more than 7 million licensed drivers in Georgia, and many more driving through our state with out of state licenses, it is important everyone understand these charges.

What is Fleeing and Eluding?

     Fleeing and eluding is found in section 40-6-395 of the Georgia code. It is categorized as a serious traffic offense and can be a misdemeanor or a felony. The definition of fleeing and eluding is "it shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle." 

     The key elements to this statute are that if you willfully fail or refuse to pull over when given a signal to do so (or otherwise flee), you have violated the statute. The officer must have given you an audio or visual signal to pull over and the officer must be in uniform and/or in a marked police vehicle. These charges are especially concerning because sometime people don't see the officer, don't hear a siren, or have a valid reason for not pulling over immediately. However, the officer may not believe you and charge you with it anyway.

What is the punishment for misdemeanor Fleeing and Eluding?

     If you are convicted of fleeing and eluding just based on the language above without any additional factors, you will likely be convicted of the misdemeanor level of fleeing and eluding. Your first conviction (in ten years) of misdemeanor fleeing and eluding will result in a mandatory minimum of 30 days in jail and a mandatory minimum fine of $1,000 (and it can be up to $5,000). The minimum fine and the minimum custody time cannot be altered by a judge. The judge can put you on probation after the 30 days in jail for up to another 11 months, but those first 30 days must be custody time. If this is your second conviction in ten years, the mandatory minimum fine goes up to a minimum of $2500 and the mandatory jail time goes up to 90 days. The punishment increases again for your third conviction in ten years, and if you reach a fourth conviction in ten years, it is treated as a felony with a minimum of 1 year in jail and a $5,000 minimum fine.

What is felony Fleeing and Eluding?

     One way to be charged with felony fleeing and eluding is as I mentioned above: if it is your 4th misdemeanor fleeing and eluding in ten years. But that is not the most common way we see people charged with felony fleeing and eluding. The most common felony fleeing and eluding comes from where the incident of fleeing and eluding includes other factors that the law deems to be more extreme, requiring felony punishment. Here are the factors (which occur in addition to the willful failure to pull over discussed above) which may elevate a driver's actions to felony-level fleeing and eluding:

1. Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit;
2. Strikes or collides with another vehicle or a pedestrian;
3. Is the proximate cause of an accident;
4. Flees in traffic conditions which place the general public at risk of receiving serious injuries;
5. Commits a violation of:
   1. 1. Code Section 40-6-144 (Emerging from an Alley, Driveway or Building, Driving on Sidewalk);
      2. Subsection (a) of Code Section 40-6-163 (Stopping for School Bus);
      3. Subsection (a) of Code Section 40-6-251 (Laying Drag);
      4. Subsection (a) of Code Section 40-6-390 (Reckless Driving);
      5. Subsection (a) of Code Section 40-6-390.1 (Reckless Stunt Driving); or
      6. Subsection (a) of Code Section 40-6-391 (DUI); or
6. Leaves the state

What is the punishment for felony Fleeing and Eluding?

     If you are found to have committed one of the above factors while fleeing or eluding, then the punishment is severe. The law requires a minimum of 12 months in jail and a maximum of 10 years. This sentence cannot be probated or suspended, and the charge cannot be reduced or served concurrently. This is what makes this statute so severe. It ties the hands of the judge in your punishment. You cannot be put on probation, they cannot reduce the charge to something lesser, and you cannot serve your sentence for this charge while serving a sentence (probation or custody) on any other charge. 

How do you defend a Fleeing and Eluding case?

     There are several different approaches to analyzing and defending these charges. First is whether the signal to pull over was clear enough that you should have known to pull over. Other issues may be did you pull over as soon as you were aware? How safe was it for you to pull over any sooner? When it comes to fleeing and eluding, we often see issues in determining whether a driver truly was speeding more than  20 miles over the speed limit, and whether their driving was reckless or putting anyone at risk. Those are often fact issues that are argued as part of the case. 

     Additionally, I often see cases of felony fleeing and eluding where the person is not arrested immediately because the police were unable to catch them. Later, they will arrest the person who owns the car they saw fleeing. This can be a key issue since the owner of the car was not necessarily the DRIVER who committed fleeing and eluding. Simply seeing the car and license plate is not enough to prove who the driver is. Police will try to include a description of the driver in their report but identity can still be the crux of a felony fleeing and eluding case. You should always hire an attorney for these cases because the punishment is so severe and there may be solid defenses to whatever the accusations may be.