Virginia Code 46.2-817 is a unique statute, in that depending upon the facts and circumstances, the consequences may vary tremendously: eluding can be charged as a misdemeanor or a felony.
Fairfax Traffic Lawyer Explains Virginia Eluding Law
On this page, our Fairfax traffic lawyer and Northern Virginia traffic defense attorney explains this law. This statute may also implicate other charges, such as driving while intoxicated (DWI); reckless driving; driving while revoked or suspended; and issuance/service of outstanding arrest warrants.
When Eluding is a Misdemeanor in Virginia
Virginia Code 46.2-817 provides for Class 2 misdemeanor treatment if the driver is alleged to have willfully disregarded a visual or audible signal to stop:
- willful disregard;
- of visual or audible signal from law enforcement officer to stop.
This includes fleeing on foot even if the vehicle properly pulls over (the statute states, “…whether on foot, in the vehicle, or by any other means.”
Defense to Eluding: Reasonable belief police officer was not a law enforcement officer
The statute does have a built-in defense: if one “reasonably believes” he or she was chased or pursued by someone who was not a police or law enforcement officer, he or she can use this as an affirmative defense.
An affirmative defense is when the defendant says, “yes, I did the alleged act, but I am not criminally liable and here is why.”
When Eluding is a Felony in Virginia
First, there are two categories of felonies for purpose of this statute/law: eluding is usually a Class 6 felony, but as described below, may be a Class 4 felony in very serious cases.
Eluding – Class 6 Felony Variety
Eluding in Virginia can be a Class 6 felony if the driver disregards the law enforcement official’s visual or audible direction to stop, and in doing so, interferes with, endangers the officer, or endangers another person.
Eluding – Class 4 Felony Variety
A Class 6 felony is the least serious degree of felony in Virginia. A Class 4 felony is more serious. In Virginia, eluding is punished as a Class 4 felony (as opposed to a Class 2 misdemeanor or Class 6 felony) if a law enforcement officer is killed as a result of the pursuit.
VA Code 46.2-817 Automatic License Suspension
Will my license be suspended if convicted of eluding? Under current law, yes. One’s driver’s license will be suspended for at least 30 days, but not more than a full year. Additionally, if the accused driver exceeded the speed limit by 20 mph or more, then the court has to suspend the driver for 90 days. The judge has no discretion, because the law uses the word “shall.”
Many times, this charge is brought against a defendant with other charges. For example, a person may be charged with the original offense that prompted the pursuit to begin with.
Frequently Asked Questions and Pointers from Fairfax Criminal Lawyer and Virginia Traffic Attorney
I was charged with felony eluding, but no one was injured. Should I be charged with a misdemeanor instead?
- The police can charge – and the Commonwealth can convict – a person who does not cause any actual harm. For example, if Jim is charged with a Class 6 felony for eluding, he cannot use the fact that no person was hurt as a legal defense. The only thing necessary is “endangerment.” 1
Surprisingly to some, to convict a defendant does not require the individual who was said to have been endangered to be identified. In one case, the Court of Appeals held that the lower court incorrectly ruled that the person put in danger needed to be identified…in other words, if the driving behavior could have put any person at risk, such driving supported conviction.2
Example of Endangerment
When someone is charged with felony eluding, the prosecution must prove the elements of the offense just like any other criminal trial. In an eluding case, the defendant must have endangered others (to be convicted of a felony). What is behavior rising to the level of “endangerment?”
Below are all real case-law examples of “endangerment”:
- Disregard of signal to stop, speeding above the posted limit, and loss of control of car (crashes into tree). 4
- Short pursuit (less than a mile). Wet roads, passenger in car, and at night. 5
- Only driver was in danger, not anyone else…still endangerment.6
- Driver does not comply with signal to stop, drives into gas station, re-enters road without slowing and causes other cars to stop suddenly.9
4th Amendment Issue – Suppression of Evidence
Assume an officer has no basis to stop a driver — no actual traffic infraction prior to the stop. Assume the driver disregards the signal to stop, and instead proceeds for some time before stopping the car in a ditch and fleeing on foot.
At trial, the prosecutor wants to use evidence (testimony) about the driver’s conduct after leaving the car (running away). If the reason for the stop was not based on reasonable suspicion, should the testimony regarding the conduct after he did finally stop be considered? The answer, according to the courts, is yes. The exclusionary rule (exclusion of evidence) did not apply because the charge occurred after the attempted detention. In other words, a second crime was committed (even if it was actually the first). 8
Is it eluding to avoid a traffic checkpoint or DUI roadblock?
In one case, the courts in Virginia ruled as follows:
- driver reverses direction in order to evade a checkpoint.
- the check point is 500 feet away.
- the driver is located one intersection beyond the checkpoint.
- Does this factual scenario constitute a driver who has disobeyed a “police signal or command to stop?”
Location of Prosecution
One question that comes up from time to time is jurisdiction and venue. If a police chase spans through various counties, where is the proper county or city to file the charge (and where the defendant must appear in court)?
Venue for felony eluding is not determined by the location of any injury caused by the driving behavior. Instead, it is determined by the location where the endangerment occurred. For example, in one case in the past, the court determined venue was proper in county A because the evidence was sufficient to raise a presumption that the driving behavior in county A endangered a police vehicle and others, considering the following:
- The alleged speed was over 90 mph (radar clocked speed in county A)
- The speed increased above 100 mph during the pursuit.
- The defendant was not in control, not signaling.
- Defendant drove through an intersection at an excessive speed in county A
- Based on the length of time and actual distance of the actions/behavior in county A, it was held to be proper for county A to prosecute the defendant.3
Learn more about traffic offenses from award winning Fairfax reckless driving lawyer, Brent Vincenzes.
“Fairfax Traffic Lawyer Explains Virginia Eluding Law” References:
 See Coleman v. Commonwealth, 52 Va. App. 19, 660 S.E.2d 687 (2008).
 See Kirby v. Commonwealth, No.0494-02-2, 2003 Va. App. LEXIS 154 (Ct. of Appeals Mar. 25, 2003).
 Greene County. Paytes v. Commonwealth, No. 2681-02-2, 2004 Va. App. LEXIS 80 (Ct. of Appeals Feb. 17, 2004).
 See Tucker v. Commonwealth, 38 Va. App. 343, 564 S.E.2d 144, 2002 Va. App. LEXIS 319 (2002)
 Wolford v. Commonwealth, 2006 Va. App. LEXIS 513 (Nov. 14, 2006).
 Phelps v. Commonwealth, 49 Va. App. 265, 639 S.E.2d 689, 2007 Va. App. LEXIS 21 (2007).
 Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d 921 (2000).
 Gray v. Commonwealth, 50 Va. App. 513, 651 S.E.2d 400, 2007 Va. App. LEXIS 396 (2007).
 Hall v. Commonwealth, No. 1731-11-2, 2012 Va. App. LEXIS 306 (Ct. of Appeals Oct. 2, 2012).
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