How To Beat a Fleeing and Attempting to Elude Charge

IMG_0179-e1519940395141-300x142Some of you “Dear Readers” are locals, so you’ve survived driving I-4.  For those of you visiting Orlando and driving I-4 for the first time, your passengers will be exclaiming “Did you see that?” several times per mile.  Yes, I-4 is the most dangerous road in the United States.  It’s official, Google it.  Unfortunately, I drive the most dangerous road in America at least twice a day.

It should be no surprise that America’s Most Dangerous Highway also contains its most insane drivers.  I try not to get too angry at these folks, as they’re going to need my help defending the three most common reasons for insane driving: (1) drunk driving, (2) reckless driving, or (3) a fleeing charge.   Fleeing and attempting to elude is often the most serious of these three crazy driving scenarios.  Fleeing the cops is never a good idea, as no one can “out run a dispatch radio”.

Many a rap song has advised against fleeing.  Yes, rap music contains wisdom.  I’ve verified this.  When it comes to fleeing charges, Pharrell Williams and Snoop imparted this wisdom upon the masses back in 2004: “when the pigs try to get at you, park it like it’s hot, park it like it’s hot, park it like it’s hot.”  You would think that after repeating this three times, it must be true.  Things that rhyme are more true than those that don’t, right?  If the glove doesn’t fit, you must acquit.

For those of you who panic and flee the cops, how can you beat the rap? (bad pun, I know)

Today’s real life example of an aggravated fleeing charge comes to us in Canidate v. State, 2018 Fla. App. LEXIS 2268 (Fla. 4th DCA 2018).   To give you an idea of how serious a fleeing and attempting to elude charge really is, Canidate lost his jury trial and was sentenced to five years in prison.  Here’s what happened:

Canidate was driving along, minding his own business, when he noticed blue and red flashers behind him.  He had done absolutely nothing wrong, so this concerned him enough to call to 911 as he was driving.   As it turns out, Canidate was doing something wrong–he driving 5 miles over the speed limit, 40 mph in a 35 mph zone.

While Canidate was on the phone with 911, law enforcement decided to force Canidate’s car off the road by nudging his car into a spin.  If patience is a virtue, these cops had none, they couldn’t wait to stop a car going 5 mph over the limit.   Yes, your taxpayer dollars hard at work.  Spinning a car.  Arresting Canidate.  Sending him to prison for five years.

So, why did Canidate appeal his 5 year prison sentence?  In other words, what went wrong, legally?

Any good defense starts with an analysis of the charge itself.  Canidate was found guilty of a second degree felony punishable by up to 15 years in prison, a crime technically called “fleeing to elude a law enforcement officer with lights and siren activated at a high rate of speed or with willful and wanton disregard for the safety of persons or property.”  [This is in violation of section 316.1935(3)(a)]

In the middle of trial, Canidate’s defense attorney asked the court to throw out the charge (a maneuver we call a “Motion for Judgement of Acquittal”), claiming that the prosecution failed to meet their burden on two important issues.

An aggravated fleeing charge becomes “aggravated” when the driver (a) is travelling at a high rate of speed, or (b) travelling at a normal rate of speed but with wanton disregard for safety.  So let’s break this down.  First, was Canidate travelling at a “high rate of speed?”

Well, Canidate was driving 40 mph in a 35 mph zone.  Other courts have addressed what constitutes a “high rate of speed”, and high speed doesn’t mean just going over the speed limit.  In Steil v. State, the defendant was convicted of aggravated fleeing or eluding because he was driving 15 – 20 mph over the speed limit, and he ran several stop signs.  974 So. 2d 589 (Fla. 4th DCA 2008)  Does 15 – 20 mph over constitute high speed?  No.  Conviction reversed.   That being said, Steil also ran several stop signs, maybe that qualifies as  ‘wanton disregard’ for safety?  No.  It doesn’t.  The officer testify that no other cars were affected by the stop sign running, so no ‘wanton disregard’.

Getting back to Canidate, we know the state did not prove he was driving at a high rate of speed, but what facts could the prosecutor have used to prove his driving was “with willful and wanton disregard for the safety of persons or property?”

For insights into what constitutes “wanton disregard”, the appellate court examined Miller v. State. 636 So. 2d 144 (Fla. 1st DCA 1994). Miller was going 55 mph in a 35 mph zone, with two runners and bicyclists nearby.  Even these facts were not enough to prove aggravated fleeing at high speed or with wanton disregard, and Miller’s fleeing conviction was thrown out.

So, getting back to our case.  The appellate court overturned Canidate’s conviction for second degree felony fleeing, and threw out his 5 year prison sentence to boot.  Unfortunately, Canidate isn’t out of the woods yet.  The court found that he was guilty of a lesser offense of fleeing to elude a law enforcement officer with sirens and lights activated, a third degree felony (punishable by up to 5 years prison, as opposed to the original charge, which carried a maximum of 15 years prison).  Technically speaking, Canidate could still get a five year prison sentence on the lesser offense, but I doubt it.  He’ll get something less on the lesser charge.

[Defense Attorney Practice Tip of the Day] Fleeing charges sink or swim by video evidence, and this evidence can come from anywhere.  Don’t give up on video just because the officer conveniently claims his dash camera wasn’t working at the time.  Its important to get working on a fleeing charge as close to the incident as possible so that you can gather up all the video evidence that’s out there before it gets destroyed.  We defense attorneys must file a Notice to Preserve with each person or business that may have video footage.  Banks have video cameras facing the road.  Gas stations and convenience stores have cameras facing their pumps.  Red light cameras are recording video 24 hours a day, and the footage is stored in Austin, Texas.  Go get it.  You must get at this footage before it is destroyed.  I can’t tell you how many times an officer has claimed that he was 10 feet from a client’s bumper when he turned on his lights, yet our found video footage from a local business tells a different story.  Also, many cop cars have GPS records, these GPS records may differ from the records stored in a clients car or phone.