Has anyone else had the same experience with the new evading with a vehicle statute we have had? The police are filing many cases, some of them being extremely short "pursuits". Have any other offices adopted any standards about what cases you accept? Do you look at speed, distance traveled, or threat to the public? We have not filed some cases because the defendant didn't stop but didn't drive at high speeds or was just trying to get to his driveway. Where are other offices drawing the line?
High speed is a significant factor for us. In fact, in those cases, assuming some other traffic around, we have a no probation policy and push for a deadly weapon finding. We even had a press conference, attended by the Sheriff and all Chiefs, announcing the policy.
Without high speed, we tend to look for a misdemeanor.
Although I can't speak for all the assistants here in Bell County, we have had some discussions about what we are looking for. We tend to heavily consider the manner in which the defendant was finally stopped, which naturally leads us to look at his speed. In a couple of egregious cases we have required a deadly weapon finding. We have refused to prosecute when, for example, the officer was on a bike, or in very "short stop" cases.
This actually goes back to another thread, but you seek a deadly weapon finding (increase amount of proof required), in order to make it a third degree case where the defendant is eligible for parole and the jury can grant probation? I would think a lot of defendants might thank you for that decision. I know this same argument applies to every potential 12.35c case, but I think you ought to go for aggravated assault (maybe as a completely separate charge) if the danger was that great. Of course, I guess then you will have to prove the imminent character of the threat and deal with a necessity defense.
A good misdemeanor alterantive to the more serious Penal Code offense is Transportation Code section 545.421. This section makes it a Class A Misdemeanor for a person driving a motor vehicle to wilfully refuse or fail to stop or flee, or attempt to elude, a pursuing police vehicle when given a visual or audible signal to stop. This appears to be what John is referring to for those cases where the subject doesn't drive in a dangerous manner or for a long distance.
Posts: 674 | Location: Austin, Texas, United States | Registered: March 28, 2001
I'm glad you mentioned this topic. I always value Bud's opinion as he is a premier prosecutor and fantastic litigator (in my humble opinion). What if you have a short distance traveled, and the defendant makes the statement that he knew he would be arrested for something trivial, such as no insurance, and couldn't afford to have his car impounded. Or maybe thought he'd have a better chance of getting just a ticket if he was in his driveway. Although prosecutors are hesitant to take the defendant's word for it, it does sound like the intent to evade wasn't there. It seems as though the law was aiming to hold people accountable who fled from law enforcement in their vehicle - the serious flight or evading cases. Standards for acceptance of these cases are needed.
PC 38.04 Evading Arrest or Detention (a) a person commits an offense if he INTENTIONALLY flees from a person he knows is a PEACE OFFICER attempting lawfully to arrest or detain him. (1) a state jail felony if the actor uses a vehicle while the actor is in FLIGHT....
What is the problem you are having with this?
If an officer attempts to stop a subject and that subject continues to drive and refuses to stop, then he is fleeing. A person who is the subject of a traffic stop should immediatly pull to the right of the road. If that person does not, and he continues to drive his car for 5 miles at 10 miles an hour, he is refusing to stop and is fleeing.
Come on guys, this is why lawers have a bad rep. Do not read into it. Just apply the law...
The reality is that prosecutors have discretion. We have the constitutional authority to decide what cases will be prosecuted. There would be no need for discretion if we simply expected to file every single case that meets the minimum requirements for proof of a crime. We also wouldn't be staying in office for very long.
And I am sensitive to the point of view of arresting officers, who obviously thought the case was worthy of prosecution because they took the time to make an arrest. However, the prosecutor, who undoubtedly has less of a personal interest in the outcome of the case, has a duty to apply a slightly more neutral standard than the officer who no doubt (and rightly) was offended by the flight of the defendant.
This same situation frequently comes up in cases of assault on a public servant. But not every offensive contact with a peace officer needs to be prosecuted as a felony. But that's a whole nother story.
We now know at least some members of the public are receptive to the increased punishment for this offense. Mr. Calton got a deadly weapon finding and a 50 year sentence in Tarrant County this week for what defense counsel called a "traffic offense". (He also had two sequential prior felony convictions). His was the more typical 45 minute pursuit through 3 counties case, however.
I hope someone keeps statistics to see whether this change actually results in any greater deterrent effect.
We have gotten 15 year and 25 year jury sentences in two such egregious flight cases when the defendant had at least two prior felonies, however, our grand jury has refused to indict a couple of the "quick stop" cases. By the way, detective, it's not as simple as you make it sound.
Posts: 283 | Location: Montague, Texas, USA | Registered: January 26, 2001
Sorry, I didn't finish that last reply ... there are many, many cases that can be indicted which are technically violations of some statute or another, but we realistically have to decide whether a jury will convict in the case. Indicting cases that you know will result in an acquittal is a waste of time and resources. The quick stop cases will almost surely result in acquittals because jurors just don't think it's fair to saddle someone with a felony conviction in such cases. Especially if the person has a clean history. We decide ours on a case by case basis looking at the history of the offender. If he's clean and it was not an egregious flight, we refer to county as a misdemeanor.
Posts: 283 | Location: Montague, Texas, USA | Registered: January 26, 2001
For what it is worth, I recently tried a case in which the defendant testified he merely drove an additional 2 miles or so (as recorded on video) because he wanted to reach a friend's property before stopping. He was concerned that if he stopped more quickly, his pickup would be towed. This was along a county dirt road at speeds of less than 40 miles per hour (although he had first been observed traveling above 80 mph in a 55 mph zone). In less than 30 minutes my jury rendered a verdict of not guilty. He also had no drivers license, had consumed a considerable quantity of alcohol, and had outstanding arrest warrants (but had no intent to evade). The main reason we chose to prosecute (as a felony) was because he had two sequential prior felony convictions.
I read an unpublished one that was upheld on appeal to Beaumont. The driver rolled through a stop sign and the officer triggered his lights and siren. The driver continued less than half a block to his home at the end of a dead end street so it wasn't like he was really going to escape in the vehicle and there was no other traffic. He did escape on foot and turned himself in the next day.
Here were some factors supporting the decision to go with SJF evading in a vehicle: 1. The defendant was definately fleeing in the car because he was coasting/barely moving when the officer hit his lights and siren, but he accelerated, slid the car into the driveway and took off running... leaving the door open, the engine running and even a half empty beer in the console. 2. Several officers wasted a good deal of time searching the neighborhood. The officer believed that, had the defendant immediately stopped instead of driving the extra 200 feet, he wouldnt have been able to flee... the vehicle provided the head start that allowed the escape. 3. The defendant had previously done time for evading. Had a current warrant for a small bounced check, and was also not keeping up with his community supervision reporting.
Anyway the appeals court agreed there was no minimum distance specified and upheld the conviction.
I have not heard of one since the felony evading was created, but it seems to me that there will be a evading in a motor-vehicle that results in the death of another. It fits the elements of a Felony Murder and with the groundwork already done in the Felony DWI Murders, I expect we will see such a prosecution in the future.
As to the original post, We have had a rash of low speed pursuits that ended in the defendant's driveway. The defendants say they just wanted to avoid the impound. They were all most upset with the Chapter 59 notice of seizure and intended forfeiture!
[This message was edited by John Greenwood on 07-18-08 at .]
Posts: 261 | Location: Lampasas, Texas, USA | Registered: November 29, 2007
The statute uses the word "flee" but doesn't define it. To me, the word flee in context of a rule named Evading Arrest or Detention carries the implication that the person has mens rea to run away or escape from the peace officer. If it was strict liability then you could be fleeing without even being aware that an officer was seeking detain you. I don't see simply going for a better place to park as fleeing.
In the case I mentioned above, there was other evidence that the defendant was fleeing in the vehicle, even though he only traveled 200 feet.
Suppose you are driving in the middle lane of a 5 lane highway when an patrol car turns on his lights behind you... clearly you can't just stop right there on the highway. Suppose you are in Austin where the Interstate is split and you are on the lower level where the shoulder is really really thin... shouldn't you just put on your blinker, slow down, and take the next exit? Suppose it is late and you are in a dark area and one of those fake-policeman rapists is on the prowl... maybe it wouldn't be a bad idea to slow down, put on your blinker, but wait to pull over into a well-lit WhatABurger or something.
The evading law doesn't say you have to stop the vehicle exactly where the officer wants you to stop, it says you can't flee.