WPIC 94.02 Attempting to Elude a Police Vehicle—Elements

Use WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished) with this instruction. Use WPIC 10.05 (Willfully—Definition) with this instruction.

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction). For a case in which some of the acts occurred within the state, and some occurred outside of the state, the jurisdictional element may need to be revised to more specifically state the jurisdictional requirement. See the Comment to WPIC 4.21 (Elements of the Crime—Form).

RCW 46.61.024.

The attempting to elude statute was substantially rewritten in 2003. See Laws of 2003, Chapter 101, § 1 (effective July 27, 2003). The 2003 revision changed the “wanton or willful” standard to “reckless manner,” thus using the same language as in the statutes on vehicular homicide, RCW 46.61.520, and vehicular assault, RCW 46.61.522. Accordingly, the instruction above should be accompanied by the definition of “reckless manner” in WPIC 90.05, rather than the previously applicable definition of “wanton or willful.” See State v. Ridgley, 141 Wn.App. 771, 781–82, 174 P.3d 105 (2007) (holding that the “reckless manner” standard in the attempting to elude statute involves a lesser mental state than the previous “wanton or willful” standard).

Additionally, the 2003 revision changed the requirement that the police vehicle be “appropriately marked” to merely being one equipped with lights and sirens. The revision also added an affirmative defense as to a reasonable belief that the pursuer was not a police officer. See WPIC 94.10 (Attempting to Elude a Police Vehicle—Non-Police Officer—Defense) for further discussion.

Due to the changes in the statutory language, practitioners researching the appellate cases should carefully note whether the opinion is interpreting the current or former language.

Lesser included offense. Reckless driving is no longer a lesser included offense of attempting to elude a police officer. State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005). See discussion in the Comment to WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished).

The crime of refusing to cooperate with an officer, RCW 46.61.022, is a lesser included offense of attempting to elude a police vehicle. State v. Gallegos, 73 Wn.App. 644, 651–52, 871 P.2d 621 (1994) (holding that the instruction was correctly rejected under evidence presented).

Elements of the offense. The crime of attempting to elude is best analyzed by examining its elements in the chronological order in which they must appear. State v. Tandecki, 153 Wn.2d 842, 109 P.3d 398 (2005); State v. Treat, 109 Wn.App. 419, 35 P.3d 1192 (2001); State v. Stayton, 39 Wn.App. 46, 691 P.2d 596 (1984). First, a uniformed officer in a vehicle equipped with lights and sirens gives a signal to stop. Second, the driver fails to stop immediately. Third, the driver drives in a reckless manner. All three elements must occur in sequence before the crime has been committed. See State v. Sherman, 98 Wn.2d 53, 653 P.2d 612 (1982); State v. Stayton, 39 Wn.App. at 49.

“Immediately” means stopping as soon as reasonably possible once signaled by a police officer to halt. State v. Sherman, 98 Wn.2d 53, 653 P.2d 612 (1982). In an appropriate case, this definition should be included in a jury instruction. The “immediately” requirement is an essential element of the crime. State v. Tandecki, 153 Wn.2d 842, 109 P.3d 398 (2005).

An “attempt to elude” requires knowledge that there is “a pursuing police vehicle.” See State v. Stayton, 39 Wn.App. 46, 691 P.2d 596 (1984); State v. Mather, 28 Wn.App. 700, 626 P.2d 44 (1981). In State v. Connors, 9 Wn.App.2d 93, 442 P.3d 20 (2019), a clearly marked police vest and badge worn over ordinary clothing was sufficient to establish a uniformed officer. Also see State v. Trowbridge, 49 Wn.App. 360, 742 P.2d 1254 (1987) (unmarked police vehicle may be a pursuing police vehicle for purposes of RCW 46.61.024). A willful failure to stop requires that the defendant have knowledge that a statutorily appropriate signal was given by a statutorily appropriate police officer. See State v. Stayton, 39 Wn.App. 46, 691 P.2d 596 (1984); State v. Mather, 28 Wn.App. 700, 626 P.2d 44 (1981). Also see State v. Mitchell, 56 Wn.App. 610, 784 P.2d 568 (1990) (sounding police siren for jury was admissible to show knowledge of appropriate signal). The statutorily appropriate signal may, but need not necessarily, be given by the officer while in a pursuing police vehicle. The signal may be given by an officer stationed at the side of the road. State v. Stayton, 39 Wn.App. 46, 691 P.2d 596 (1984).

The expression “while attempting to elude a pursuing police vehicle” modifies only the element that specifies the criminal manner of driving that ensues after the driver's willful failure to stop. The willful failure to stop factually may occur while attempting to elude the pursuing vehicle, but as a statutory prerequisite to commission of the crime it need only follow upon the officer's giving of the signal. State v. Stayton, 39 Wn.App. 46, 691 P.2d 596 (1984).

The term “willfully” has many meanings. In the context of the eluding statute, it is an element. Because the term has a particular meaning, it should be defined for the jury. See State v. Allen, 101 Wn.2d 355, 358–62, 678 P.2d 798 (1984) and State v. Flora, 160 Wn.App. 549, 553–54, 249 P.3d 188 (2011). Without a definition, the jury is left to come up with its own understanding of a technical term for a culpable mental state. The court equated willfully with knowingly. State v. Flora, 160 Wn.App. at 554.

The term “police vehicle” as used in RCW 46.61.024 may include a vehicle from a foreign jurisdiction. Similarly, the term “police officer” as used in RCW 46.61.024 may include an officer whose authority to make an arrest is limited to a foreign jurisdiction. State v. Malone, 106 Wn.2d 607, 724 P.2d 364 (1986).

It is an element of the crime of attempting to elude a police vehicle, RCW 46.61.024, that the officer who signals a driver to stop be in uniform. Failure to present evidence of this element requires reversal of a conviction, even if the officer is in a marked police car or is known by the defendant to be a police officer. State v. Hudson, 85 Wn.App. 401, 932 P.2d 714 (1997); State v. Fussell, 84 Wn.App. 126, 925 P.2d 642 (1996).

To “attempt to elude” as used in RCW 46.61.024 is given its ordinary meaning of “to try” to elude, and is unrelated to criminal attempt. There is therefore no requirement that the State prove intent to elude. State v. Gallegos, 73 Wn.App. 644, 871 P.2d 621 (1994).

Attempting to elude does not require proof of probable cause for a stop. The courts are “concerned with the safety of police officers and the public if individuals were permitted to flee from legal or illegal stops with wanton or reckless disregard.” State v. Duffy, 86 Wn.App. 334, 341, 936 P.2d 444 (1997).

Penalty enhancement. For offenses occurring after June 12, 2008, RCW 9.94A.533(11) sets forth a sentence enhancement for the offense of attempting to elude a police vehicle if the conviction includes a finding by special allegation that the defendant endangered one or more persons during the incident. For further discussion on the applicability of this enhancement, see WPIC 190.12 (Special Verdict Form—Attempting to Elude a Police Vehicle—Endangering Others).

For a discussion of “reckless manner,” see the Comment to WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished).