In the AManda Knox post, I posted about an evading case I just tried unsuccessfully. Well, sitting here on my desk is the same defendant, another beer run and evading with a motor vehicle, this time he is the passenger (and there is no doubt who was driving this time, there is a case on the other guy, driver, also). The previous case's passenger is the driver this time. Yes, Del Rio is not an exciting town for these young boys.

The defense attorney and I started to have this philosophical debate at the trial, not knowing it was going to be the major issue and neither of us really knew the answer...can you evade as a passenger? My DPS fiance says No,it should only be the driver. But the statute says "use" the vehicle. I was comparing it to DWI where the defendant has to "operate" and note that the exact wording is perhaps not an accident. I think maybe, like in this new case, if you have a driver waiting outside and you make a beer run, jump in the waiting car, and speed away from the flashing lights and sirens, you both have "used a vehicle" to evade.

On the other hand, if you are the passenger and want the driver to pull over, what are your options--short of jumping out of a speeding, evading car? So I don't necessarily want to encourage filing on passengers for these cases, if I am persuaded it applies at all.

I sort of see it both ways. Thoughts?

Driver only. No way, unless it is an exceptional fact situation with overt acts by the passenger, to prove BRD that the passenger was a party.

Driver only, and it'd have to be some pretty great evidence to establish a passenger as a party.

I can recall a case where I charged the passenger with evading with a vehicle. Shoplifter was running from the police. His getaway driver was waiting in a pickup. Defendant jumped in the bed of the truck and yelled, "Go! Go! Go!," or words to that effect. A notable chase ensued. Everything was captured on police video.

The case was resolved with a plea.

I'm with the "overt act" group. If you had proof that the passenger was actively encouraging the driver to elude the police, then I'd say go for it. But short of having a microphone in the vehicle, I don't see how you'd get there. The "jumping into a getaway car" example is the best I could see.

quote:

---

Originally posted by MW:
I can recall a case where I charged the passenger with evading with a vehicle. Shoplifter was running from the police. His getaway driver was waiting in a pickup. Defendant jumped in the bed of the truck and yelled, "Go! Go! Go!," or words to that effect. A notable chase ensued. Everything was captured on police video.

The case was resolved with a plea.

---

Excellent example of encouraging and acting as a party with the intent to evade with a motor vehicle.

Another example I thought of would be if a passenger and a driver were out of the vehicle on a traffic stop, and both got back in the vehicle and left with the intent to evade further detention.

Now to hijack the thread, based upon title of this post, I know Scott Brumley will be reading it to look for Robert Earl Keen content.

So now would be a good time for all fans of Brumley's guitar playing to prevail upon him to learn a few Keen songs and to perhaps perform a song solo with his guitar as a prelude to his introductory speech at next years Annual.

"Merry Christmas From the Family"

That Buckin' Song?

quote:

---

I think maybe, like in this new case, if you have a driver waiting outside and you make a beer run, jump in the waiting car, and speed away from the flashing lights and sirens, you both have "used a vehicle" to evade.

---

While I would agree that it would take more than being a mere passenger to justify an evading charge, I would think under these facts the defendant would be more than just a mere passenger.