WPIC 94.10 Attempting to Elude a Police Vehicle—Reasonable Belief that Pursuer Is Not a Police ...
11A WAPRAC WPIC 94.10Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 94.10 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XI. Crimes Involving Operation of Motor Vehicles
WPIC CHAPTER 94. Attempting to Elude a Police Vehicle
WPIC 94.10 Attempting to Elude a Police Vehicle—Reasonable Belief that Pursuer Is Not a Police Officer—Defense
It is a defense to a charge of attempting to elude a police vehicle that a reasonable person would not have believed that the signal to stop was given by a police officer and that the defendant's driving after the signal to stop was reasonable under the circumstances.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [on this charge].
NOTE ON USE
Use this instruction with WPIC 94.02 (Attempting to Elude a Police Vehicle—Elements). Use this instruction only when there is evidence to support it.
COMMENT
RCW 46.61.024(2). This defense has been characterized by the Legislature as an “affirmative defense” and was added when the Legislature changed the requirement that the police vehicle be “appropriately marked” to merely being one equipped with lights and sirens. See Comment to WPIC 94.02 (Attempting to Elude a Police Vehicle—Elements). The statute requires this defense to be proved by a preponderance of the evidence. RCW 46.61.024(2); State v. Flora, 160 Wn.App. 549, 555, 249 P.3d 188 (2011). As a specific statutory defense it may replace the general statutory defense of duress contained in RCW 9A.16.060.
Right of defendant to forgo an affirmative defense. This instruction should be given if requested by the defendant and supported by the evidence. The defense of “reasonable belief that pursuer is not a police officer” is an affirmative defense to be raised by the defendant. A court should not instruct the jury on an affirmative defense over the objection of the defendant. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (a defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections); State v. Coristine, 177 Wn.2d 370, 376, 300 P.3d 400 (2013). For additional discussion, see WPIC 14.00 (Defenses—Introduction). A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party who presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).
[Current as of February 2020.]
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