Part A—MVC Offenses

8.2Failure to Stop at Signal of Police Officer (“Fleeing and Eluding”)

A substantially similar statute appears in both the MVC and the Michigan Penal Code. MCL 257.602a and MCL 750.479a. Differences in the two statutes are noted below.

MCL 257.602a applies only to the operation of vehicles on the highways. See MCL 257.601, which states that provisions of the MVC apply “exclusively to the operation of vehicles upon highways except where a different place is specifically referred to . . . .”

A.Statutory Authority

“(1) A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the motor vehicle, extinguishing the lights of the motor vehicle, or otherwise attempting to flee or elude the officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the officer’s vehicle is identified as an official police or department of natural resources vehicle.”

(2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony[,] . . . .

(3) Except as provided in subsection (4) or (5), an individual who violates subsection (1) is guilty of third-degree fleeing and eluding, a felony[,] . . . if 1 or more of the following circumstances apply:

(a) The violation results in a collision or accident.

(b) A portion of the violation occurred in an area where the speed limit is 35 miles an hour or less, whether that speed limit is posted or imposed as a matter of law.

(c) The individual has a prior conviction for fourth-degree fleeing and eluding, attempted fourth-degree fleeing and eluding, or fleeing and eluding under a current or former law of this state prohibiting substantially similar conduct.

(4) Except as provided in subsection (5), an individual who violates subsection (1) is guilty of second-degree fleeing and eluding, a felony[,] . . . if 1 or more of the following circumstances apply:

(a) The violation results in serious injury[¹] to an individual.

(b) The individual has 1 or more prior convictions for first-, second-, or third-degree fleeing and eluding, attempted first-, second-, or third-degree fleeing and eluding, or fleeing and eluding under a current or former law of this state prohibiting substantially similar conduct.

(c) The individual has any combination of 2 or more prior convictions for fourth-degree fleeing and eluding, attempted fourth-degree fleeing and eluding, or fleeing and eluding under a current or former law of this state prohibiting substantially similar conduct.

(5) If the violation results in the death of another individual, an individual who violates subsection (1) is guilty of first-degree fleeing and eluding, a felony[.]” MCL 257.602a(1)-(5). See also MCL 750.479a(1)-(5).²

B.Relevant Jury Instructions

•M Crim JI 13.6d addresses the elements of fourth-degree fleeing and eluding.

•M Crim JI 13.6c addresses the elements of third-degree fleeing and eluding.

•M Crim JI 13.6b addresses the elements of second-degree fleeing and eluding.

•M Crim JI 13.6a addresses the elements of first-degree fleeing and eluding.

C.Criminal Penalties

For fourth-degree fleeing and eluding, the penalties are as follows:

•imprisonment for not more than two years; or

•fine of not more than $500;³ or

•both. MCL 257.602a(2).

For third-degree fleeing and eluding, the penalties are as follows:

•imprisonment for not more than five years; or

•fine of not more than $1,000;⁴ or

•both. MCL 257.602a(3).

For second-degree fleeing and eluding, the penalties are as follows:

•imprisonment for not more than 10 years; or

•fine of not more than $5,000;⁵ or

•both. MCL 257.602a(4).

For first-degree fleeing and eluding, the penalties are as follows:

•imprisonment for not more than 15 years; or

•fine of not more than $10,000;⁶ or

•both. MCL 257.602a(5).

D.Sanctions

Only applicable sanctions are discussed; accordingly, if a particular sanction is omitted from this section it is not applicable to this offense. The Offense Code Index for Traffic Violations published by the secretary of state and sourced from Michigan Department of State Court Manual includes a table detailing traffic offenses and applicable sanctions. The Offense Code Index for Traffic Violations is available at: http://www.michigan.gov/documents/OffenseCode_73877_7.pdf. See Section 1.41 for information on abstracting procedures.

•Six points. MCL 257.320a(1)(f). See Section 1.42 for more information on points.

•$1,000.00 driver responsibility fee for two consecutive years. MCL 257.732a(2)(a)(v).⁷ See Section 1.43 for more information on driver responsibility fees.

•Following convictions of third- or fourth-degree fleeing and eluding, possible denial of license. See MCL 257.303(1)(c) (requiring license denial if a person’s license is suspended, revoked, denied or canceled in any state); MCL 257.303(1)(g) (requiring license denial if a person has been convicted of, received a juvenile disposition for, or has been determined responsible for two or more moving violations). Following convictions of second- or first-degree fleeing and eluding, denial of license for at least one year. MCL 257.303(2)(d); MCL 257.303(4)(a)(i)-(ii). See Section 1.44 for more information on license denial.

•Following convictions of second- or first-degree fleeing and eluding, license revocation for at least one year. MCL 257.303(2)(d); MCL 257.303(2)(f); MCL 257.303(4)(a)(i)-(ii); MCL 750.479a(7)(a). See Section 1.45 for more information on license revocation.

•License revocation and denial also occur when a defendant has any combination of two or more convictions within seven years for fleeing and eluding and any of the motor vehicle felonies listed in MCL 257.303(2)(b). See Section 1.45 for more information on license revocation and Section 1.44 for more information on license denial.

•Following convictions of fourth- or third-degree fleeing and eluding, license suspension for a period of one year. MCL 257.319(2)(d); MCL 750.479a(6)(a). See Section 1.46 for more information on license suspension.

E.Issues

•Aiding and abetting

A passenger may be convicted of fleeing and eluding under an aiding and abetting theory. People v Branch, 202 Mich App 550, 551–552 (1993). In Branch, during a high-speed chase, the defendant threw full beer cans at a police car giving chase and instructed the driver. Id. at 551. The Court of Appeals held that the aiding and abetting statute, MCL 767.39, may be applied to passengers, and that the jury was properly instructed that a defendant must have intentionally assisted the driver to commit fleeing and eluding. Branch, 202 Mich App at 552.

•Causation

The statutory language, “results in,” that appears in MCL 257.602a(5), requires only that a defendant’s conduct was a factual cause of death; MCL 257.602a(5) does not require that a defendant’s conduct be the proximate cause of death. People v Wood, 276 Mich App 669, 676 (2007). The Court explained that “[f]actual causation means just that: was defendant’s criminal conduct a factual cause of the officer’s death; or, but for defendant’s fleeing and eluding, would the officer’s death have occurred?” Id. In Wood, “[b]ecause the officer’s death would not have occurred absent [the] defendant’s fleeing and eluding, i.e., the police officer would not have lost control of his vehicle during the pursuit of the fleeing defendant, factual causation exist[ed].” Id.

•Conduct arising out of the same transaction

A person may be convicted under either MCL 257.602a(2)-(5) or MCL 750.479a(2)-(5) but not both, for conduct arising out of the same transaction. MCL 257.602a(6); MCL 750.479a(8). A person may be charged with and convicted of MCL 257.602a(5) or MCL 750.479a(5), for each death arising out of the same criminal transaction, and a court may impose consecutive sentences upon conviction. MCL 769.36(1)(a)-(b).

•Nature of the defendant’s fleeing or eluding

The fleeing and eluding statutes are not limited to prohibiting only high-speed or long-distance “police chases.” The Court of Appeals found sufficient evidence to bind over the defendant for trial where, after the police officer signaled for the defendant to stop, the defendant sped up slightly, made two turns, stopped the car, and attempted to flee on foot. People v Grayer, 235 Mich App 737, 742-744 (1999).⁸ A defendant’s intent to flee or elude a police officer may be inferred from his or her acceleration, turning off the vehicle’s headlights, or other similar actions after the officer signals the defendant to stop. Id. at 743-744. See also People v Grayer (After Remand), 252 Mich App 349, 355–356 (2002) (holding that the evidence in this case was sufficient to support the defendant’s conviction).

•Required evidence of the officer’s signal to stop

Whether sufficient evidence exists to bind over a defendant for fleeing and eluding depends on “the type of signal given and the context in which it occurs[.]” People v Green, 260 Mich App 710, 718 (2004).⁹ In Green, the Michigan Court of Appeals explained that the plain language of the fleeing and eluding statute requires a driver to stop when given a visual or audible signal by a police officer. Id. at 717. The officer’s signal may be given by hand, voice, emergency light, or siren, but the Court emphasized that MCL 750.479a “does not require that this signal to the driver of a motor vehicle be given from within the officer’s officially identified police vehicle.” Green, 260 Mich App at 717. The Court further explained that the “fair and natural import” of the statutory language indicates that if the signal to stop is given by an officer away from that officer’s vehicle, the statute requires that the officer be in uniform. Id. at 718. Similarly, “if the signal occurs by emergency light or siren, that signal must come from an officially identified police vehicle in order to hold a driver accountable for the offense of fleeing and eluding.” Id.

F.Related Misdemeanor

Refusing to comply with a lawful order or direction of a police officer under MCL 257.602 is a separate misdemeanor offense. See MCL 257.901(1).