COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years private practice in Colorado state and municipal courts

CRS 42-4-1413. Eluding or attempting to elude a police officer
 
Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring the operator's vehicle to a stop, and who willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits a class 2 misdemeanor traffic offense.

10.24.109: ELUDING OR ATTEMPTING TO ELUDE POLICE OFFICER

        It shall be unlawful for any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a State law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff or Colorado State patrol car directing the operator to bring the operator's vehicle to a stop, to wilfully increase the speed or extinguish the lights in an attempt to elude the police officer, or wilfully attempt in any other manner to elude the police officer, or does elude the police officer. (1968 Code §6-24-9; Ord. 75-86; Ord. 81-204; Ord. 01-42)

CRS 18-9-116.5. Vehicular eluding
          below statute text may become outdated - current statute lookup

        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

        Felony cases are similar to misdemeanor procedures, except for a few differences.  The defendant is advised in County Court, then in El Paso County the case is transferred to District Court for advisement about a week later.  All proceedings transpire in District Court.  In other counties, preliminary proceedings may be held in County Court, and the case is transferred to District Court at a later time.

        In felony cases, proceedings are held in the division courtroom; the First Appearance Center is not utilized for felony matters.  No specific dates are set for negotiation between a Deputy DA and defense counsel or defendant as happens in misdemeanor cases (pre-trial conference.)  The court may set a case over for further proceedings, and negotiations are frequently conducted at the District Attorney's Office or by phone.  On the return date, the parties advise the court of status (settled, settlement pending or disposition unlikely.)  The court will then set another further proceedings uncontested court date, or will set motions hearing and trial dates.  Negotiations will likely be affected by the strengths or weaknesses of the District Attorney's case and what efforts, if any, defendant has made toward useful public service and / or traffic safety class or other remedial measures, although those defendant remedial efforts are less likely to have an impact on a felony disposition than on a misdemeanor disposition. 

        Vehicular eluding is not sufficiently serious to merit a preliminary hearing.  Contested cases are therefore set for motions hearing and jury trial.  In a felony case, a defendant is entitled to a jury of 12 whereas a misdemeanor is entitled to 6 jurors at the most.

        In both felony and misdemeanor offenses, at trial the prosecutors must prove each and every element of the offense charged beyond a reasonable doubt, and the jury must return a unanimous verdict.  Misdemeanor offenses carry county jail as a possible consequence.  Felony offenses carry state penitentiary longer periods of incarceration as a possible consequence.

CRS 42-2-206  Driving after revocation prohibited.
          refer to link for verbatim statute - below text and linked statute may become outdated - current statute lookup
 
        (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.

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.

        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).

CRS 33-6-111. Inspection of license and wildlife - check stations - failure to tag - eluding an officer.

        (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.

CRS 33-15-105. Eluding

        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 !