shall be guilty of a felony punishable by a fine of $5,000.00 or imprisonment for not less than one year nor more than five years or both.
(Code 1933, § 68A-904, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1978, p. 1483, § 2; Ga. L. 1983, p. 836, § 1; Ga. L. 1985, p. 758, § 19; Ga. L. 1987, p. 3, § 40; Ga. L. 1990, p. 585, § 1; Ga. L. 1990, p. 2048, § 5; Ga. L. 1992, p. 6, § 40; Ga. L. 1994, p. 831, § 3; Ga. L. 1995, p. 855, § 2; Ga. L. 2004, p. 450, § 1; Ga. L. 2010, p. 256, § 2/HB 1231; Ga. L. 2012, p. 729, § 1/HB 827.)
Cross references.- Impersonating public officer or employee generally, § 16-10-23.
Suspension of driver's license for conviction for fleeing or attempting to elude officer, § 40-5-54.
Editor's notes.- Ga. L. 2010, p. 256, § 5/HB 1231, not codified by the General Assembly, provides that the amendment by that Act shall apply to all offenses committed on or after July 1, 2010.
Ga. L. 2012, p. 729, § 2/HB 827, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to offenses committed on or after July 1, 2012.
Law reviews.- For article, "Criminal Law," see 53 Mercer L. Rev. 209 (2001). For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006).
JUDICIAL DECISIONS
Constitutionality.
- Statute was not unconstitutional for failing to include a provision for the exercise of self defense, given the statutory defense that a person's conduct was justified remained a defense to prosecution for any crime based on that conduct; moreover, the defendant was permitted to present justification evidence, and the trial court instructed the jury that justification was a defense and could be claimed when the person's conduct was justified for any reason under the law or in all other instances based on similar reason and justice. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
Offenses under subsections (a) or (b) of former Code 1933, § 68A-904 (see now O.C.G.A. § 40-6-395) were purely statutory and have no relation to the common law. State v. Black, 149 Ga. App. 389, 254 S.E.2d 506 (1979).
Subject matter jurisdiction.
- Inasmuch as it was established that a violation of O.C.G.A. § 40-6-395 was alleged to have occurred in Douglas County, Georgia, the state court of Douglas County had subject-matter jurisdiction over the case; thus, the denial of the defendant's motion in arrest of judgment was not error. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
Counts merged.
- Because two counts charged the defendant with fleeing from an officer after having been given a proper signal to stop from the officer, the unit of prosecution under both counts was the same and the counts should have merged. Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308 (2017), aff'd, 303 Ga. 681, 813 S.E.2d 393 (2018).
Pleas and violations of double jeopardy.
- Subsequent prosecution of the defendant for robbery after the defendant pled guilty to fleeing to elude did not violate double jeopardy since the offenses involved wholly different elements and facts. Blackwell v. State, 230 Ga. App. 611, 496 S.E.2d 922 (1998).
Even assuming arguendo that the defendant's position that O.C.G.A. § 40-6-395 set out two distinct offenses, wilful failure to stop and fleeing and eluding a police officer, the defendant was tried, first in a bench trial and again on remand after an appeal, on an accusation charging the defendant with fleeing and eluding an officer and was found guilty and sentenced both times for fleeing and eluding; hence, because the defendant was not tried on the offense of wilful failure to stop, the defendant's contention that double jeopardy considerations prohibited a jury trial on that charge was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
Counts did not merge.
- Two counts of eluding an officer against a defendant, who was a passenger in a truck, did not factually merge as in the first count, the defendant eluded the officer by being in a truck that exceeded the posted speed limit by at least 30 mph while an officer was chasing the truck, when the officer clocked the vehicle as exceeding 100 miles per hour in a 55-miles-per-hour zone; the first count was separate and complete prior to the truck's driver running a red light and endangering the crossing vehicle in the driver's efforts to elude the police, which was the basis for the second count of eluding an officer. Michael v. State, 281 Ga. App. 289, 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 304 Ga. App. 723, 798 S.E.2d 308 (2017).
Although offenses related to the getaway car were part of the same criminal episode, the essential elements of armed robbery, theft by receiving, fleeing or attempting to elude a police officer, and reckless driving were completely separate and distinct. As a result, the trial court did not err in failing to merge these offenses. Garibay v. State, 290 Ga. App. 385, 659 S.E.2d 775 (2008).
Trial court properly sentenced the defendant on five separate counts of attempting to elude a police officer because the evidence supported the jury's conclusion that the defendant willfully led police on a dangerous high speed chase after being given clear signals by five separate police vehicles to stop; it is the act of fleeing from an individual police vehicle or police officer after being given a proper visual or audible signal to stop from that individual police vehicle or officer, and not just the act of fleeing itself, that forms the proper "unit of prosecution" under O.C.G.A. § 40-6-395. Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).
Merger with felony murder.
- Defendant's conviction for felony fleeing and attempting to elude was vacated as the offense served as the underlying felony for a felony murder conviction and merged with the conviction for felony murder. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).
Identification of officer.
- No violation of subsection (a) of O.C.G.A. § 40-6-395 is shown unless evidence demonstrates that the officer allegedly eluded was in required uniform and that the officer's vehicle was appropriately marked. Phillips v. State, 162 Ga. App. 471, 291 S.E.2d 776 (1982).
Evidence that the law enforcement officer displayed a variety of objective indicia of the officer's lawful authority was sufficient to authorize the jury's determination that the defendant was unlawfully attempting to elude the officer's. Mooney v. State, 221 Ga. App. 420, 471 S.E.2d 904 (1996).
State's failure to present evidence of the officer's attire was harmless when the jury was considering whether an individual driving 131 mph in the dark, early in the morning hours was aware that the individual was being pursued by a peace officer. Ray v. State, 233 Ga. App. 162, 503 S.E.2d 391 (1998).
Applicability to uniformed officers on foot.
- When a defendant failed to stop after being given a signal to do so by a police officer on foot and in uniform, the defendant violated O.C.G.A. § 40-6-395, and therefore the evidence was sufficient to support the defendant's conviction for fleeing and attempting to elude; § 40-6-395 did not apply only when an officer was in a police vehicle and not on foot, as was the factual circumstances involving the defendant, because to read § 40-6-395 to mean only a police officer on foot would render the phrase "pursuing police vehicle" in the first sentence of § 40-6-395 meaningless, and a court was prohibited from interpreting a statute in this manner. Maxwell v. State, 282 Ga. 22, 644 S.E.2d 822 (2007), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
One signal given by police enough.
- Intent of the legislature was to require only one form of recognizable signal, either visual or audible. Reynolds v. State, 209 Ga. App. 628, 434 S.E.2d 166 (1993).
Flight, or attempted flight, after command to halt.
- Sufficient evidence supported the defendant's conviction for obstruction and fleeing because the evidence showed that both deputies were in uniform and driving marked patrol vehicles when they ordered the defendant to stop and the defendant ignored those commands while they were attempting to conduct, with justification, at the very least a second-tier detention of the defendant. Miller v. State, 351 Ga. App. 757, 833 S.E.2d 142 (2019).
Defendant's conviction for eluding the police was reversed as a fair risk could not have been excluded (due to the unexplained ambiguity appearing in the face of O.C.G.A. § 40-6-395 at the time of the offense) that the driver could have labored under a mistaken belief that merely because a second signal was not given the defendant was free wilfully to elude police pursuit without fear of criminal sanction. Reynolds v. State, 209 Ga. App. 628, 434 S.E.2d 166 (1993).
Applicability to passengers.
- Not only a driver can be found guilty of violating O.C.G.A. § 40-6-395; the evidence may show that the driver and the passenger acted in concert between themselves in an effort to effect an unlawful escape from the police. Bivins v. State, 166 Ga. App. 580, 305 S.E.2d 29 (1983).
When the defendant was only a passenger in a van during a high speed chase with police and was not the driver, and there was no evidence that the defendant did anything other than occupy the passenger seat while a codefendant drove the van, the trial court erred by denying the defendant's motion for a directed verdict on the charge of fleeing from police. Carter v. State, 249 Ga. App. 354, 548 S.E.2d 102 (2001).
Sufficiency of accusation.
- Amended accusation charging that the defendant "did wilfully fail to stop and did otherwise fleeing or attempting to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop in violation of this section" sufficiently apprised the defendant of the charges against the defendant. Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15, cert. denied, No. S92C1446, 1992 Ga. LEXIS 865 (1992).
Grant of the defendant's special demurrer to counts which charged the defendant with fleeing or attempting to elude a police officer was proper because the offense charged could have been committed by the defendant's failure to respond to a visual signal of the officer either by hand or by emergency light and the accusation did not allege which type of visual signal was given. State v. Jones, 246 Ga. App. 482, 540 S.E.2d 622 (2000).
Charges that the defendant violated O.C.G.A. § 40-6-395(a) by willfully failing or refusing to bring the defendant's vehicle to a stop or otherwise fled or attempted to elude a pursuing police officer when given a visual or audible signal to bring the vehicle to a stop, and that the defendant violated O.C.G.A. § 16-10-24(a) by knowingly and willfully obstructing or hindering the officer in the lawful discharge of the officer's duties by refusing to follow the officer's reasonable and lawful commands, were not mutually exclusive, as the crimes had different elements and neither guilty verdict legally or logically excluded the other. Golden v. State, 276 Ga. App. 538, 623 S.E.2d 727 (2005).
Trial court did not err in denying the defendant's motion in arrest of judgment as to the count of fleeing and attempting to elude police because the indictment charged that the defendant unlawfully willfully failed to bring a vehicle to a stop after having been given an audible and visual signal to bring the vehicle to a stop by an officer while fleeing in an attempt to escape arrest for theft by receiving and did flee in traffic conditions which placed the general public at risk of receiving serious injuries in violation of O.C.G.A. § 40-6-395. Dixson v. State, 313 Ga. App. 379, 721 S.E.2d 555 (2011).
Indictment charging the defendant with eluding police was not fatally defective because the indictment did not contain the term "pursuing"; the indictment provided sufficient notice of the charge against the defendant. Jackson v. State, 284 Ga. App. 619, 644 S.E.2d 491 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. 2007).
Indictment charging the defendant with "fleeing or attempting to elude," alleging that the defendant unlawfully and willfully failed to bring the defendant's vehicle to a stop after a pursuing police officer gave a visual and audible signal, was sufficient to withstand a general demurrer. State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012).
Sufficient evidence of venue.
- Even though a chase involving the defendant might have ended in another county, because the offense of eluding the officers was complete at the moment the defendant refused to stop, despite the visual and audible signals requiring such, the defendant's act of continuing the chase into that second county did not destroy venue in the county where the chase began; moreover, after the defendant wrecked the vehicle involved in the chase in the second county, the evidence gathered at the scene was sufficient to support the inference that the open beer containers were in the vehicle when the defendant was observed driving the vehicle moments earlier in the county where the chase began. Mack v. State, 283 Ga. App. 172, 641 S.E.2d 194 (2007).
Indictment charging the defendant with felony fleeing and attempting to elude a police officer was defective as the indictment failed to list any predicate offense as required by O.C.G.A. § 40-6-395(b)(5)(A); nowhere was the predicate offense mentioned of fleeing in traffic conditions such that the general public was placed at risk of serious injuries. Cochran v. State, 288 Ga. App. 538, 654 S.E.2d 458 (2007).
As there was evidence the defendant was speeding and eluding a police officer in Dawson County, venue was established there, even though the defendant was apprehended in Forsyth County. Segel v. State, 293 Ga. App. 506, 667 S.E.2d 670 (2008).
In a fleeing and eluding case under O.C.G.A. § 40-6-395, the evidence was sufficient to establish venue as required by Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) based on evidence that the chase originated in the county and continued there, which included an eyewitness's testimony, dash cam footage, and a map. Payne v. State, 338 Ga. App. 677, 791 S.E.2d 451 (2016), overruled on other grounds by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Insufficient evidence of venue.
- State failed to present evidence of venue necessary for a fleeing and eluding conviction as the testimony merely identified streets, but did not indicate the counties in which the chase or shooting took place. Grant v. State, 326 Ga. App. 121, 756 S.E.2d 255 (2014).
Investigatory stop.
- Because police officers saw a vehicle matching a dispatcher's description shortly after receiving the dispatch, and the vehicle attempted to elude the officers, in violation of O.C.G.A. § 40-6-395(a), the officers had a specific and articulable reason to stop the vehicle; consequently, the trial court properly denied the defendant's motions to suppress, in limine, and for a new trial. Francis v. State, 275 Ga. App. 164, 620 S.E.2d 431 (2005).
Since the defendant ignored the officers' commands during an investigatory stop based on a tipster's report of illegal drug activity, fled from the scene, and led the officers on a chase in violation of O.C.G.A. § 40-6-395(a), any taint arising from the allegedly illegal stop was purged and the defendant's flight provided a legitimate basis for discovery of evidence in the defendant's car. Prather v. State, 279 Ga. App. 873, 633 S.E.2d 46 (2006).
Trial court properly denied the defendant's motion to suppress because undisputed facts showed that the initial stop of the vehicle on the highway ramp did not result in a seizure within the meaning of the Fourth Amendment since the defendant fled with the vehicle and, after the defendant fled from the initial stop, the officer pursued the defendant and observed the defendant commit traffic violations, speeding, running a red light, and improper lane usage, which provided a valid basis for the second stop. Jenkins v. State, 345 Ga. App. 684, 813 S.E.2d 438 (2018), cert. denied, 2018 Ga. LEXIS 807 (Ga. 2018).
Illegal Terry stop does not provide carte blanche to violate O.C.G.A. § 40-6-395. Davis v. State, 235 Ga. App. 10, 507 S.E.2d 827 (1998).
Officer waving a car to a stop was not a Terry stop by virtue of O.C.G.A. § 40-6-395. - A DUI defendant was not forced to stop by a police officer who waved the defendant down by virtue of O.C.G.A. § 40-6-395 because the officer told the defendant that the defendant was free to go and there was no pursuit involved. Butler v. State, 303 Ga. App. 564, 694 S.E.2d 168 (2010).
Probable cause to arrest for violation.
- In an arrestee's 42 U.S.C. § 1983 suit alleging that that the arrestee was falsely arrested in violation of U.S. Const., amend. IV the arresting officer was entitled to qualified immunity because actual probable cause to affect the arrestee's arrest for violating O.C.G.A. § 40-6-395(c) existed after police received a citizen call about a civilian car using police-like strobe lights, the arrestee's car matched the citizen's description, the officer saw the arrestee activate strobe lights on the arrestee's car, and the officer found a strobe light switch box in the car. Baker v. Moskau, 335 Fed. Appx. 864 (11th Cir. 2009)(Unpublished).
No audible signal given.
- When indictment charged the defendant with attempting to elude "after having been given visual and audible signal to bring the vehicle to a stop" but, at trial, the arresting officer testified that the officer used only visual signals, the state failed to prove the signal was given in the manner alleged, and the evidence was insufficient to support the charge as made in the indictment. Little v. State, 202 Ga. App. 7, 413 S.E.2d 496 (1991).
Offenses of fleeing and eluding not merged with suspended license violation.
- Convictions under both O.C.G.A. §§ 40-5-58(c) and40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6 as the elements of both charged offenses required different proof. Under O.C.G.A. § 40-5-58(c), the state proved that the defendant was declared an habitual violator, was properly notified of such status, and that the defendant operated a vehicle without having obtained a valid driver's license; while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).
Sufficient evidence of first degree homicide by vehicle while eluding.
- Evidence was sufficient to convict the defendant of first degree homicide by vehicle while fleeing and attempting to elude a pursuing police vehicle because the officer began following a car as the officer suspected that the driver was impaired; the officer activated the vehicle's lights to stop the car to investigate whether the driver was impaired, but the defendant did not pull over and stop; after the officer blew the air horn to give the defendant an audible stop signal, the car accelerated; seconds later, the car failed to negotiate a sharp curve and crashed into a utility pole; on arrival at the hospital emergency room, the passenger was declared dead; and the passenger died as a result of injuries suffered in the crash. Moceri v. State, 338 Ga. App. 329, 788 S.E.2d 899 (2016), cert. denied, No. S17C0095, 2017 Ga. LEXIS 210 (Ga. 2017).
Indictment for felony murder and vehicular homicide.
- Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Charge predicate to felony murder.
- Charge under O.C.G.A. § 40-6-395 of fleeing and attempting to elude a police officer served as a predicate to felony murder. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Dual prosecution valid, but sentencing merged.
- Defendant could be lawfully prosecuted for both O.C.G.A. § 40-6-395(a) and (b)(5)(A) without offending O.C.G.A. § 16-1-7(a), although the defendant could not be sentenced for both; the court found that because all of the evidence was used up to prove the crime of felony fleeing or attempting to elude, the misdemeanor conviction for fleeing or attempting to elude merged into the greater offense. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).
Conviction upheld.
- Defendant was properly convicted of a charge of attempting to elude a police officer when the evidence showed that the officer was on patrol and in the officer's patrol car and had the officer's blue light flashing and siren sounding. Cook v. State, 180 Ga. App. 877, 350 S.E.2d 847 (1986).
Evidence was sufficient to support the conviction of the defendant, notwithstanding that a videotape recorded by a video camera in the arresting officer's patrol car indicated that the defendant's vehicle disappeared from the officer's view as the officer completed a U-turn and had already come to a stop by the time the officer made a left turn into a commercial complex, since the officer testified that the defendant was the driver of the vehicle and that the defendant attempted to elude the pursuing police officer through the defendant's actions and denials after the defendant brought the defendant's vehicle to a stop. Turner v. State, 236 Ga. App. 592, 512 S.E.2d 699 (1999).
Defendant's conviction under O.C.G.A. § 40-6-395 was upheld as: (1) the conviction was supported by sufficient evidence of the defendant's failure to yield to an uniformed police officer driving a marked police vehicle when commanded to do so; (2) the issue as to whether a failure to stop was wilful was a question for the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act; (3) a motion to quash the accusation contested the authenticity of the state's evidence and did not attack the accusation for a facial defect, thus making denial of the motion proper; (4) the pursuing officer was not called upon to exercise the legislative function of defining what constituted a crime, but the executive branch function of enforcing the law; (5) there was no constitutional requirement that the statute had to contain a statement that a justification defense be asserted; (6) the State Court of Douglas County had subject-matter jurisdiction over the case; and (7) since the defendant was not found guilty of a wilful failure to stop, a contention that the defendant could not be tried for the offense was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).
Given evidence from an ensuing police officer identifying the defendant as the driver of the vehicle stopped, and because the jury was the judge of the credibility of the witnesses presented at trial, and was authorized the reject the defendant's alibi defense, sufficient evidence was presented to support the defendant's convictions for reckless driving, failure to maintain a lane, driving with defective equipment, fleeing or attempting to elude a police officer, and obstruction of a police officer. Daniel v. State, 282 Ga. App. 291, 638 S.E.2d 430 (2006).
Because sufficient direct and circumstantial evidence showed that the defendant, a prior felon wielding a weapon, engaged in a fight with the two victims, fatally wounding one and shooting the other in the arm, and thereafter fled from police, the defendant's convictions for involuntary manslaughter, reckless conduct, fleeing and eluding, and possession of a firearm by a convicted felon were upheld on appeal. Alvin v. State, 287 Ga. App. 350, 651 S.E.2d 489 (2007).
Evidence was sufficient to support the defendant's convictions for trafficking in cocaine, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and felony fleeing or attempting to elude based on the defendant's involvement in a police chase that included speeds in excess of 100 m.p.h. in a residential area and the defendant's attempt to flee on foot. Hinton v. State, 297 Ga. App. 565, 677 S.E.2d 752 (2009).
Evidence was sufficient to support the defendant's conviction for fleeing from an officer since the defendant admitted to being the driver of the vehicle and that the defendant "freaked out" when the co-defendant returned to the car indicating that a fast food restaurant robbery had taken place and police sirens were heard, so the defendant "hit the gas" when a sergeant pulled behind the vehicle. Broyard v. State, 325 Ga. App. 794, 755 S.E.2d 36 (2014).
Evidence was sufficient to support the appellant's conviction as a party to the crime of violating O.C.G.A. § 40-6-395(a) for fleeing and eluding because the appellant testified and admitted shoplifting, admitted to having a prior record of shoplifting, had only recently been released from prison, and that getting caught on the day of the events would be a parole violation that would send the appellant back to prison. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).
Officer's testimony was sufficient to establish the defendant's identity as the individual who refused to bring a vehicle to a stop after having been given a visual and audible signal by the officer. Glispie v. State, 335 Ga. App. 177, 779 S.E.2d 767 (2015), aff'd in part and rev'd in part, 300 Ga. 128 793 S.E.2d 381 (Ga. 2016).
Evidence was sufficient to sustain the defendant's conviction for felony fleeing because the officer testified that the defendant drove 70 miles per hour in a 30 mile per hour zone, ignored stop signs, and landed in a ravine, and that the officer passed at least one car while attempting to catch up to the defendant's vehicle. The video from the officer's dashcam showed the car the officer passed while trying to catch up with the defendant's vehicle and that the chase occurred in a residential area. Alexander v. State, 355 Ga. App. 234, 843 S.E.2d 907 (2020).
Defendant's steering of vehicle during chase.
- In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypotheses that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Evidence sufficient.
- There was evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime of attempting to elude an officer. Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994); Finlon v. State, 228 Ga. App. 213, 491 S.E.2d 458 (1997); Davidson v. State, 237 Ga. App. 580, 516 S.E.2d 90 (1999); Gibson v. State, 243 Ga. App. 610, 533 S.E.2d 783 (2000).
Evidence that the arresting officer was uniformed and driving a marked patrol car and that the defendant fled after a license check had been completed supported the defendant's conviction. Davis v. State, 235 Ga. App. 10, 507 S.E.2d 827 (1998).
Evidence was sufficient to prove that the defendant was guilty of reckless driving and attempting to elude an officer when the defendant led the officer on a high speed chase driving on the wrong side of the road and wilfully failed to bring the defendant's car to a stop after the officer activated the patrol car's blue lights and siren. Brackins v. State, 249 Ga. App. 788, 549 S.E.2d 775 (2001).
Evidence authorized the trial court to find beyond a reasonable doubt that the defendant attempted to elude a police officer under O.C.G.A. § 40-6-395(a) as the defendant wilfully failed and refused to bring the vehicle to a stop when given visual and audible signals to do so. Weir v. State, 257 Ga. App. 387, 571 S.E.2d 191 (2002).
Convictions for armed robbery, aggravated assault, fleeing to elude a police officer, and reckless driving were all upheld on appeal given the sufficiency of the identification evidence supplied by the victim, an investigating officer, and the arresting officer, as well as observations made by the latter in apprehending the defendant; moreover, the defendant's failure to object to the admission of a photographic lineup and show-up as impermissibly suggestive precluded appellate review of those issues. Newton v. State, 280 Ga. App. 709, 634 S.E.2d 839 (2006).
Evidence supported a defendant's convictions for fleeing and attempting to elude a police officer as an underlying offense for felony murder, theft by taking, vehicular homicide, disregarding a traffic control device, failing to stop at a stop sign, and reckless driving as: (1) the defendant stole a vehicle and was spotted by an officer shortly after the vehicle was reported as stolen; (2) when the officer began to follow the vehicle, the vehicle rapidly accelerated; (3) the officer followed the stolen vehicle for several blocks, with both vehicles traveling between 60-70 miles per hour; (4) the vehicle continued to accelerate after the officer turned on the officer's blue lights and siren; (5) when the stolen vehicle ran a red light, the vehicle struck a car, killing the driver; and (6) the officer and the owner of the stolen vehicle identified the defendant as the person driving the stolen vehicle. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).
Evidence supported a defendant's conviction of bringing stolen property to Georgia, eluding an officer, and possessing marijuana as a party, if not as a conspirator, since: (1) the defendant discussed with the defendant's boyfriend what would happen if they were apprehended by the police; (2) the boyfriend gave the defendant a handgun after the boyfriend stole a new gun and the defendant packed two guns with the defendant's personal items and the ski masks; (3) the defendant suspected that the truck was stolen, refused to ask about the truck's origin, saw the stolen gun on the seat of the truck, observed two gas drive-offs, ate stolen food, smoked shared marijuana repeatedly, and sat next to the glove compartment where the marijuana lay; and (4) the defendant was silent during the police pursuits, saw the defendant's boyfriend retrieve a stolen handgun just prior to an assault of a police officer, did not hinder the boyfriend or warn the police, lied to the police to cover up the matter, and referred to the entire affair as having "fun for a minute." Michael v. State, 281 Ga. App. 289, 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308 (2017).
There was sufficient evidence to convict the defendants of fleeing or attempting to elude a police officer in violation of O.C.G.A. § 40-6-395(a); both of the defendants, along with the driver, fled after the vehicle in which they were riding crashed, and, as a result, the defendants, by fleeing with the driver, became chargeable as parties to the crime. Cooper v. State, 281 Ga. App. 882, 637 S.E.2d 480 (2006).
There was sufficient evidence to support a defendant's conviction for fleeing and eluding the police based on the defendant, after panicking from striking a vehicle in a nightclub parking lot, testifying at trial that the defendant attempted to flee to avoid arrest for driving under the influence and for striking the parked car. Adams v. State, 293 Ga. App. 377, 667 S.E.2d 186 (2008).
Evidence that the defendant eluded police at 75 miles per hour (mph) in a 25 mph zone, ran several stop signs, abandoned the car, and fled on foot was sufficient to convict the defendant of fleeing and attempting to elude in violation of O.C.G.A. § 40-6-395(a). Bridges v. State, 293 Ga. App. 783, 668 S.E.2d 293 (2008).
Evidence that a defendant gave a fake name and address, sped from the scene of a traffic stop, abandoned the truck, and continued to run from, hide from, and fight with police was more than sufficient to support convictions for misdemeanor obstruction of a police officer in violation of O.C.G.A. § 16-10-24(a) and fleeing or attempting to elude in violation of O.C.G.A. § 40-6-395(a). Lightsey v. State, 302 Ga. App. 294, 690 S.E.2d 675 (2010).
Because the defendant chose to run away from a traffic stop, a police officer had probable cause to arrest the defendant for fleeing or attempting to elude a police officer; voluntarily throwing a digital scale and a baggie of suspected cocaine to the sidewalk near parking spaces within an apartment complex demonstrated an abandonment of the items. State v. Nesbitt, 305 Ga. App. 28, 699 S.E.2d 368 (2010).
Evidence was sufficient to find the defendant guilty beyond a reasonable doubt of two counts of fleeing and attempting to elude a police officer because officers pursued the defendant's fleeing vehicle in a high-speed chase in patrol vehicles clearly marked with their emergency lights and sirens activated; despite those warnings, the defendant ran a stop sign and a red light and refused to stop the defendant's vehicle until "stop sticks" disabled the defendant's vehicle. Tauch v. State, 305 Ga. App. 643, 700 S.E.2d 645 (2010).
Evidence, viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony fleeing or attempting to elude a police officer, failure to stop upon striking an unattended vehicle, and failure to stop at or return to the scene of an accident, violations of O.C.G.A. §§ 40-6-395(a) and (b)(5)(A),40-6-270(a), and40-6-271(a), when the defendant refused to stop a vehicle for two bicycle-patrol uniformed officers, drove the vehicle into one of the officers, struck two unattended vehicles, and struck an officer's marked bicycle. Fairwell v. State, 311 Ga. App. 834, 717 S.E.2d 332 (2011).
Evidence that the defendant traveled 0.7 miles before stopping after the officers engaged the emergency lights and siren on the patrol car, passing a number of safe locations to stop, supported the defendant's conviction for fleeing and attempting to elude. King v. State, 317 Ga. App. 834, 733 S.E.2d 21 (2012).
Evidence that an officer began to pursue the defendant after hearing a shot, the officer was in a patrol car, the officer activated the officer's blue lights and siren, and two other patrol cars joined in the pursuit with lights and sirens activated was sufficient to support the defendant's conviction for fleeing or attempting to elude. Thelusma v. State, Ga. App. , S.E.2d (Aug. 27, 2020).
Evidence insufficient for conviction.
- Johnson v. State, 246 Ga. App. 197, 540 S.E.2d 212 (2000).
Evidence was not sufficient to sustain the defendant's conviction for fleeing and attempting to elude police because the state charged the defendant with striking or colliding with another vehicle while the defendant was attempting to elude police, but there was no evidence that a vehicle the defendant drove struck or collided with another vehicle. James v. State, 265 Ga. App. 689, 595 S.E.2d 364 (2004).
Given evidence that the pursuing officer failed to activate the blue emergency lights, and no evidence was presented that the officer gave any other signal to communicate to the driver of the pursued vehicle of the requirement for that driver to stop, the defendant's conviction under O.C.G.A. § 40-6-395(a) was reversed. Bradford v. State, 287 Ga. App. 50, 651 S.E.2d 356 (2007).
Because the defendant complied with a deputy's signal to stop a vehicle and the deputy did not arrest the defendant or instruct the defendant to remain at the scene while the officer chased a wanted person, the defendant's subsequent flight from the scene did not equate to fleeing pursuit by an officer under O.C.G.A. § 40-6-395(a); accordingly, the trial court erred in denying the defendant's motion for a directed verdict of acquittal. Bledson v. State, 294 Ga. App. 772, 670 S.E.2d 223 (2008).
Evidence insufficient to support felony conviction.
- Evidence was sufficient to support the defendant's guilty verdict as to misdemeanor fleeing and eluding, in violation of O.C.G.A. § 40-6-395, but the evidence was insufficient to show that there were traffic conditions that placed the general public at risk of serious injury to support the defendant's conviction for felony fleeing and eluding. Hicks v. State, 321 Ga. App. 773, 743 S.E.2d 458 (2013).
Circumstantial evidence was sufficient to convict the defendant of misdemeanor fleeing or attempting to elude a police officer because a deputy identified the defendant as the driver; another officer followed the defendant out of the parking lot when the defendant refused to stop; and the officer activated the vehicle's lights and siren but lost sight of the speeding car moments before a car of the same color struck another vehicle just ahead; however, the evidence was insufficient to convict the defendant of felony fleeing or attempting to elude as no evidence was presented that the defendant was attempting to elude arrest for a non-traffic violation when the defendant struck the other vehicle. Johnson v. State, 337 Ga. App. 622, 788 S.E.2d 559 (2016).
Evidence insufficient for arrest.
- Because the circumstances of the defendant's low-speed flight from an uniformed detective, who was driving an unmarked vehicle, were insufficient to present law enforcement with evidence of a particular crime, the defendant could not be charged with the crime of attempting to elude an officer, and police lacked the probable cause sufficient to warrant an arrest for the offense; thus, the search incident to the arrest was invalid, warranting suppression of the evidence seized. Stephens v. State, 278 Ga. App. 694, 629 S.E.2d 565 (2006).
Directed verdict motion properly denied.
- In a case involving charges of obstruction of an officer and attempting to elude, a motion for directed verdict was properly denied since the officer was investigating the defendant for driving under the influence and the defendant did not respond to the officer's orders and forced the officer to get a warrant to effectuate an arrest. Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15, cert. denied, No. S92C1446, 1992 Ga. LEXIS 865 (1992).
Counsel not ineffective in conceding guilt.
- Counsel was not ineffective by conceding defendant's guilt on a fleeing and eluding charge in order to build credibility and avoid conviction on the more serious charges; the fleeing charge carried a five-year maximum sentence, O.C.G.A. § 40-6-395(b)(5)(A), whereas the defendant faced a sentence of life without parole were the defendant convicted of armed robbery. Payne v. State, 338 Ga. App. 677, 791 S.E.2d 451 (2016), overruled on other grounds by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Mandatory sentence.
- Because O.C.G.A. § 40-6-395 imposed a minimum sentence of 10 days upon conviction of fleeing or attempting to elude a police officer, the trial court erred in failing to sentence a defendant to the mandatory minimum incarceration. State v. Searcy, 277 Ga. App. 642, 627 S.E.2d 210 (2006).
Defendant's sentence for felony fleeing and attempting to elude was vacated because the trial court incorrectly determined that the recidivist punishment statute did not apply since the defendant had been confined in a prior case to a penal institution as the recidivist punishment statute did not mandate that the defendant's entire sentence be served in confinement. State v. Yohman, 348 Ga. App. 378, 823 S.E.2d 57 (2019).
Cited in Snell v. McCoy, 135 Ga. App. 832, 219 S.E.2d 482 (1975); State v. Edwards, 236 Ga. 104, 222 S.E.2d 385 (1976); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); McSears v. State, 247 Ga. 48, 273 S.E.2d 847 (1981); Hill v. State, 159 Ga. App. 589, 284 S.E.2d 92 (1981); Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984); Freeman v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990); Cabral v. State, 199 Ga. App. 557, 405 S.E.2d 556 (1991); Jackson v. State, 223 Ga. App. 27, 477 S.E.2d 28 (1996); English v. State, 261 Ga. App. 157, 582 S.E.2d 136 (2003); State v. Stilley, 261 Ga. App. 868, 584 S.E.2d 9 (2003); Faulkner v. State, 277 Ga. App. 702, 627 S.E.2d 423 (2006); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); McClendon v. State, 287 Ga. App. 238, 651 S.E.2d 165 (2007); Green v. State, 287 Ga. App. 248, 651 S.E.2d 174 (2007); Francis v. State, 287 Ga. App. 428, 651 S.E.2d 779 (2007); Segel v. State, 293 Ga. App. 506, 667 S.E.2d 670 (2008); Westmoreland v. State, 287 Ga. 688, 699 S.E.2d 13 (2010); Myers v. State, 311 Ga. App. 668, 716 S.E.2d 772 (2011); Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012).
OPINIONS OF THE ATTORNEY GENERALElements required to determine if cases are felonies requiring transfer to superior court. 1996 Op. Att'y Gen. No. U96-7.
RESEARCH REFERENCES
C.J.S.
- 61A C.J.S., Motor Vehicles, § 1514 et seq.
ALR.
- What conduct in driving an automobile amounts to wantonness, wilfullness, or the like, precluding defense of contributory negligence, 119 A.L.R. 654.
Automobiles: liability of one fleeing police for injury resulting from collision of police vehicle with another vehicle, person or object, 51 A.L.R.3d 1226.