Fleeing and Eluding Offenses in Florida


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In the State of Florida, fleeing and eluding a police officer is a felony offense that carries some harsh penalties, including a mandatory adjudication of guilt and a mandatory driver's license suspension, which can range from one to five years. This article outlines the proscribed conduct, the varying degrees of this particular offense, and its associated penalties.

In accordance with Florida Statutes section 316.1935, it is unlawful for the driver of a motor vehicle to willfully refuse to stop the vehicle upon being ordered to do so by a duly authorized law enforcement officer. The person is also in violation of the statute if he or she initially complies with the officer's directive, but thereafter flees in attempt to elude.

Prior to July
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1st, 2003, the failure to stop after being directed to do so, where the officer's lights and sirens were not activated, constituted a misdemeanor of the first degree, which is punishable by up to twelve months in the county jail and/or twelve months of probation (the total sentence cannot exceed one year). Also, the pre-July 2003 version of the statue contained no provision that precluded the court from withholding adjudication on any level or degree of a fleeing and eluding offense and the court had discretion to either suspend the person's driver's license or not. Where the court decided to enter an order of suspension, it could not take the person's driving privilege away for more than one year. Finally, the pre-July 2003 statute contained no minimum mandatory sentencing provisions.

Effective July 1st, 2003, the statute was amended, which made the penalties much more severe. Following the amendment, there was no such thing as misdemeanor fleeing and eluding in Florida. Willfully failing to stop your vehicle, after being directed to do so by a law enforcement officer, constituted a felony of the third degree, even where the officer's lights and sirens were not activated. A third degree felony is punishable by up to five years in state prison. That is the current state of the law and any changes are unlikely.

Today, where the lights and sirens are activated, the offense level is a "one" for sentencing guideline purposes. This is as benign as it gets and, unless the person has more significant felony offenses that are before the court for sentencing, or a significant prior record, he or she will not be scoring anywhere near mandatory prison time. Where the lights and sirens are activated, and the police vehicle has jurisdictional markings prominently displayed, the person also commits a felony of the third degree, but the offense level is a "three" for sentencing guideline purposes. Obviously, a greater offense level will score higher but, once again, mandatory prison points will not result without more serious additional offenses or a significant prior record.

Where the person willfully flees from an authorized law enforcement patrol vehicle, with jurisdictional markings prominently displayed and with lights and sirens activated, and where the person drives at high speed or in any manner which demonstrates a disregard for the safety of persons or property, he or she commits a felony of the second degree. A second degree felony is punishable by up to fifteen years in state prison. The offense is a level four for guidelines purposes which, in and of itself, will not score mandatory prison time.

Where that person, under the same circumstances, causes serious bodily injury or death to another person (including any law enforcement officer), he or she commits a felony of the first degree. A first degree felony is punishable by up to thirty years in state prison. Where serious bodily injury or death occurs, the offense level is at "seven" for guidelines purposes, which does score prison. There is also a three year minimum mandatory sentence that the court must impose upon conviction. In situations where the person is scoring out to two years (for example), the court must still impose a three year prison sentence. Where the minimum mandatory sentence exceeds the applicable guidelines range, the minimum mandatory trumps. Thus, the sentencing range under these circumstances, would be three years (at the bottom end) to thirty (the high end).

A person who, in the course of unlawfully leaving the scene of a crash, fails to stop after being directed to do so by a duly authorized law enforcement officer, and causes injury to a person or damage to property, commits the offense of aggravated fleeing and eluding, a second degree felony. Where serious bodily injury or death results, the person commits the offense of aggravated fleeing and eluding, a felony of the first degree. In the latter instance, the offense scores mandatory prison and the court must impose a three year minimum mandatory sentence. You should also be aware that the offense of aggravated fleeing and eluding constitutes a crime separate and apart from the underlying leaving the scene of an accident offense. Thus, even though both are part of the same episode, the person can be prosecuted on both charges regardless.

Perhaps the most significant change in the statute, following the 2003 amendments, was the addition of subsection (6), which provides that "no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section". This means that even first time offenders (upon the entry of a plea of guilty or nolo contendre, or after a finding of guilt by a jury) must be adjudicated guilty. There is no withholding of adjudication under any circumstances. Also, the license suspension provision became mandatory. The court's discretion no longer relates to whether the license is suspended but rather, for how long. The minimum is for one year and the maximum is for five years.

As you can see, the Florida legislature significantly enhanced the structure of 316.1935 in 2003 in terms of offense classification, sentencing provisions, and collateral consequences. Depending on the circumstances, there may be still be ways around the draconian provisions of Florida's fleeing and eluding statute. If you have been charged with a fleeing and eluding offense in the Tampa Bay area, you should consult with an experienced criminal defense attorney as soon as possible.

ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Donald J. Kilfin is a former Pinellas County state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey and Bradenton.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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