Felony vehicular eluding and misdemeanor eluding a police officer - Colorado Springs Attorney Robert D. Gustafson criminal & traffic defense trial practice 25+ years in Colorado Courts

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        Admissions made by a criminal defendant may be admissible in the prosecutor's case in chief.  At the of investigation or arrest or subsequent thereto, no criminal defendant should discuss a case with or make any statements whatsoever to any law enforcement officer, prosecutor, witness, the alleged victim, an insurance adjuster or any other third person.  Prosecutors will not hesitate to file intimidation of witness felony charges, and your statements are admissible in a trial or motions hearing.  You have the absolute right to remain silent even if police don't tell you.  Exercise that right.  In some circumstances, no statutory privilege exists with respect to medical providers (doctor, nurse, etc), counselors (psychologist, psychiatrist), clergy (minister, priest) or spouse (husband, wife) - only the attorney-client privilege exists.  Consult with your attorney before talking.

        NOTICE: It is the policy of the presiding judge in Palmer Lake Municipal Court not to accept negotiated plea settlements.  If your ticket in in this court, counsel must prepare for trial; trial fees and costs would be quoted.

        State court only - this crime exceeds the jurisdiction of municipal court.
        Colorado State Courts - El Paso County - District Court

CRS 18-9-116.5. Vehicular eluding.   State Statutes - CRS
        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. Vehicular eluding is a class 5 felony; except that vehicular eluding which results in bodily injury to another person is a class 4 felony and vehicular eluding which results in death to another person is a class 3 felony.

DEFINITIONS - COLORADO STATE COURTS

Eluding is not defined as a major offense for purpose of habitual traffic offender determination. CRS 42-2-202
However, refer to DARP Aggravator criminal court sentencing

OTHER RELEVANT WEB PAGES
State Court Proceedings - Offenses  *  *  DMV License Suspension Action - 12 Points
felony proceedings differ slightly from misdemeanor - pre-trial conference is not available & maximum jurors is 12

CRS 42-2-206. Driving after revocation prohibited.   State Statutes - CRS
        (b) (I) A person commits the crime of aggravated driving with a revoked license if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits any of the following offenses:
                    (D) Eluding or attempting to elude a police officer, as described in section 42-4-1413;
                    (F) Vehicular eluding, as described in section 18-9-116.5, C.R.S.

Refer to CRS 42-2-206 for the entire statute

DEFINITIONS - COLORADO STATE COURTS

CRS 16-13-303. Class 1 public nuisance.   State Statutes - CRS
        (1)(j) Used in the commission of felony vehicular eluding pursuant to section 18-9-116.5, C.R.S.;
        (2) All fixtures and contents of any building, structure, vehicle, or real property which is a class 1 public nuisance under subsection (1) of this section and all property which is a class 1 public nuisance under subsection (1.5) of this section are subject to seizure, confiscation, and forfeiture as provided in this part 3. In addition, the personal property of every kind and description, including currency and other negotiable instruments and vehicles, used in conducting, maintaining, aiding, or abetting any class 1 public nuisance is subject to seizure, confiscation, and forfeiture, as provided in this part 3.

DEFINITIONS - COLORADO STATE COURTS

        Essentially - reckless driving.  

        One may be said to be guilty of wanton behavior when, although the defendant may not have deliberately intended to injure anyone, he consciously chooses a dangerous course of action which to a reasonable mind creates a strong probability that injury to others will result. Martin v. People, 179 Colo. 237, 499 P.2d 606 (1972). 

        One who commits reckless driving necessarily has been guilty of careless driving, for the greater degree of negligence includes the lesser. People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977).  This means careless driving is a "lesser included offense" of reckless driving, and if charged with reckless, a defendant may request a jury instruction on careless.  Reckless driving is a "lesser included offense of vehicular eluding.  People v. Pena, 962 P.2d 285 (Colo. App. 1997).

        Both reckless and careless driving offenses consist of two elements: (1) the act of driving a motor vehicle, and (2) the state of mind in "disregard" of or "without due regard" for safety. People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977).

        The two offenses differ only in that the degree of negligence required is far more culpable in reckless driving than in careless driving, although it falls short of intentional wrongdoing. id.

        The felony has aggravators for vehicular eluding which results in bodily injury to another person (class 4 felony) and for vehicular eluding which results in death to another person (class 3 felony).

        State court only - these crimes are violations of state statutes, not municipal ordinances.
        Colorado State Courts - El Paso County - District Court

CRS 33-6-111. Inspection of license and wildlife - check stations - failure to tag - eluding an officer.
        State Statutes - CRS
        (1) Any person who hunts, traps, fishes, or possesses wildlife for any purpose shall produce all applicable licenses issued to him by the division, all firearms, all records required to be maintained by articles 1 to 6 of this title or by any rule or regulation of the commission, all wildlife, and any personal identification documents when requested to do so by a district wildlife manager or other peace officer, as defined in section 33-1-102(32) empowered to enforce articles 1 to 6 of this title. Any person who refuses to permit inspection of such personal identification documents, licenses, firearms, records, or wildlife is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of fifty dollars and an assessment of five license suspension points.
        (2) The division is authorized to establish check stations, as needed, at locations within the state to aid in the management of wildlife and the enforcement of articles 1 to 6 of this title and the rules or regulations of the commission. Persons who encounter check stations, whether in possession of wildlife or not, shall stop and produce licenses issued by the division, firearms, and wildlife for inspection by division personnel. Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars and an assessment of five license suspension points. 
        (3) Any person who fails to void his license or carcass tag as required by commission rule or regulation is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of fifty dollars and an assessment of ten license suspension points.
        (4) It is unlawful for any person to elude or attempt to elude by any means a Colorado wildlife officer or other peace officer after having received a visual or audible signal such as a red or red and blue light, siren, or voice command directing him to stop. Any person who violates this subsection (4) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars and an assessment of ten license suspension points. In addition, the court shall require the person to pay for any damages caused to any public or private real or personal property damaged while eluding an officer.

DEFINITIONS - COLORADO STATE COURTS

CRS 33-15-105. Eluding.   State Statutes - CRS
        It is unlawful for any person to elude or attempt to elude by any means a parks and recreation officer or other commissioned officer of the division after having received a visual or audible signal such as a red or red and blue light, a siren, or a voice command directing him to stop. Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of three hundred dollars.

1. Jurisdictional attack  - refer to link for information DUI case
           Attack the jurisdiction (power) of the court in the pending criminal case
           Jurisdictional attack may be an important concept in defense of any given eluding case

2. Lack of reasonable suspicion for initial attempted contact by the law enforcement officer

3. Lack of probable cause for warrantless arrest or seizure of the defendant's person

4. Color of authority - peace officer acting within course & scope of his or her employment.  

5. Unlawful extra-jurisdictional arrest

6. Defendant's admissions the result of undue influence, duress and coercion - due process violation

7. Defendant's admissions taken in violation of
           5th Amendment privilege against self incrimination
           6th Amendment right to legal counsel

8. Alleged offense did not occur on public roadway or highway? - sorry, won't work in eluding cases

9. Driving
           A third person, not defendant, was driving a motor vehicle

10. Officer observations - what didn't he observe which a jury member might expect?  What was the officer's opportunity to observe? - lighting, time spent, temperature, etc.  

11. Officer credibility.  Experience with traffic enforcement and training, over concern with conviction statistics, a cop's cop or an average Joe doing a job, would the jury members want this particular officer stopping him / her?  Has the officer overstated his / her observations in relation to the driving behavior?  How well was the stop and investigation conducted?

12. Eluding is a factual determination based upon the circumstances of the case.  The case may turn upon factual argument regarding the facts - defendant's conduct & driving pattern and officer conduct.

13. Reasonable doubt - state proof beyond a reasonable doubt

14. Cloak of innocence and burden of proof upon state - beyond a reasonable doubt.  A defendant is not required to prove innocence - the state must prove guilt.

15. When all else fails:

16. Trial lawyer's adage:
            If the facts are on your side - pound the facts.
            If the law is on your side - pound the law.
            If neither the facts nor the law are on your side - pound the table !

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