by David Daggett

This month’s blog addresses Transportation Article TR §21-904, Fleeing and Eluding Police, chiefly the apparent dichotomy between subsections (b) and (c). I’ll also take a look at subsection (d), when the fleeing driver’s actions result in the bodily injury or death of another and (e), when the driver is fleeing to avoid an arrest for a crime of violence. All in all, the Fleeing and Eluding statute just may be the most poorly drafted statute in the Traffic Code.

1. TR § 21-904(c) – Fleeing on Foot

In 2011, the Maryland Court of Special Appeals in Williams v. State, 200 Md. App. 73 (2011) addressed subsection (c) of § 21-904, which states that if a police officer gives a visual or audible signal to stop and the police officer, whether or not in uniform, is in a vehicle appropriately marked as an official police vehicle, a driver of a vehicle may not attempt to elude the police officer by willfully failing to stop; fleeing on foot; or by any other means.

The facts of Williams, in a nutshell: A Montgomery County police officer was conducting surveillance outside a Shell gas station when she saw what appeared to be a possible drug transaction. Another officer, wearing plain clothes and in an unmarked car, was also conducting surveillance of the Shell station and made the same observations. That officer saw the appellant’s vehicle slowly drive around the gas station before exiting the gas station at a high rate of speed. The officer followed the appellant’s vehicle on I-270 and observed it accelerate to speeds of 70-75 miles per hour. The officer initiated a traffic stop by turning on his police siren and flashing red and blue lights on the windshield visor of his vehicle. The officer testified that the appellant’s vehicle moved towards the shoulder of the road, then moved back into the travel lane and accelerated to speeds of over 110 miles per hour. A short while later the appellant’s vehicle collided with a curb when exiting I-270 at Shady Grove Road and came to a stop. Both the driver and the passenger exited and beat feet for the woods. The passenger was captured shortly thereafter and the appellant was ultimately tracked down and captured by a canine and its handler. Williams, the driver, was ultimately convicted of Fleeing and Eluding, amongst other charges, and appealed his conviction.

The CSA analyzed similar fleeing and eluding statutes from Washington, Arizona, Georgia, North Dakota, Wisconsin, Florida and California and put great stock in language requiring police vehicles to be “appropriately marked” as being an element of the crime independent of having lights, sirens, spotlights and/or flashers. In the Washington case (State v. Ritts, 973 P. 2d 493 (1999) the defendant even admitted that he knew an officer was behind him. Those cases, in varying language, concluded that in order to be “marked” as required by statute, a vehicle must bear some type of clear insignia that prominently identifies it as a police vehicle. In the words of the Florida Court of Appeals in Slack v. State, 30 So. 3d 684, 687 (2011), “there was no evidence of agency insignia and other jurisdictional markings prominently displayed on the vehicle.”

In Williams, the Maryland CSA also looked at the plain language and legislative history of TR §21-904(c) and determined that, like the state decisions listed above, “a vehicle appropriately marked as an official police vehicle is not synonymous with a vehicle equipped simply with lights and sirens “and therefore that the State failed to prove that the officer was operating a vehicle “appropriately marked as an official police vehicle.” id @114. The Court determined that the activation of the lights and siren did not transform the unmarked police vehicle into an appropriately marked police vehicle as required by the statute and concluded that if every vehicle equipped with lights and siren is a vehicle “appropriately marked as an official police vehicle” there would be no need for the “appropriately marked” statutory language as required under subsection (c). This decision was reached notwithstanding the fact that the co-defendant testified that the driver (Williams) knew they were being pursued by the police. In other words, lights and sirens cannot take the place of decals, signs and insignias being prominently displayed on the vehicle, at least within the confines of subsection (c).

Is it just me or does the phrase “appropriately marked police vehicle” appear an inordinate amount of times in the preceding paragraph?

Penalty – Subsection (c)

1st Offense: 1 yr/$1,000;

2nd or Subsequent Offense: 2 years/$2,000

 

2. TR §21-904(b) – Failing to Stop Vehicle

But….the Williams case specifically dealt with subsection (c) of TR §21-904. Subsection (b), while nearly identical to subsection (c), does not include the language “appropriately marked as an official police vehicle.” Subsection (b) states that if a police officer gives a visual or audible signal to stop and the police officer is in uniform, prominently displaying the officer’s badge or other insignia of office, a driver of a vehicle may not attempt to elude the police officer by willfully failing to stop the driver’s vehicle; fleeing on foot; or any other means.

Subsection (b) indicates that as long as 1) the officer is in uniform and prominently displaying his badge or; 2) is in uniform, prominently displaying his badge and driving a vehicle displaying the appropriate lights and siren, a driver can be convicted of fleeing and eluding regardless of whether or not the officer’s vehicle carries the appropriate markings and insignias required by subsection (c). There are many scenarios that come to mind in which the officer is in uniform and displaying his badge and the defendant is aware that he is a police officer but the officer may be on foot or operating an unmarked vehicle. While most police departments have developed their own internal policies regarding pursuit, the Williams holding does not draw a bright line rule that every fleeing and eluding case requires the officer to be in a marked police vehicle.

Part of the confusion may stem from the fact that subsection (b) is entitled “Failing to stop vehicle” while subsection (c) is called “Fleeing on foot.” The headings actually have nothing to do with the actual elements of the subsection. In fact, both of those subsections apply when the driver fails to stop his vehicle, flees on foot or attempts to flee and elude by any other means. The only difference between the two is that subsection (b) requires uniform and badge while subsection (c) requires a marked police vehicle. In actually, subsection (b) should more properly be named “Fleeing on Foot” while subsection (c) would be better served by naming it ”Failing to Stop Vehicle.” But, enough about that.

Penalty – Subsection (b)

1st offense: 1 yr/$1,000;

2nd or Subsequent Offense: 2 yrs/$2,000

 

3. TR §21-904(d) – Fleeing or Eluding Resulting in Bodily Injury or Death

Subsection (d) of § 21-904, for some mysterious reason, is entitled “Attempts.” In fact, unless I am totally missing something, the elements of this subsection bear no connection whatsoever with the word “attempts.” Subsection (d) states that a driver may not commit a violation of subsections (b)(1) or (c)(1) that results in bodily injury (d)(1) or death (d)(2) to another person. Subsections (b)(1) and (c)(1) entail willfully failing to stop the driver’s vehicle, not fleeing on foot. Clearly, should a driver flee and elude a police officer and end up in a collision that injures or kills another, it is a considerably more serious offense and comes with greater penalties. That being said, there is nothing about “attempts” to be found in subsection (d). It obviously can’t be read to mean “attempting to cause bodily injury or death” because in those scenarios the appropriate charges would be assault or first degree murder.

 

Penalty – Subsection (d)

Subsection (d)(1) – Bodily Injury: 3 yrs/$5,000

Subsection (d)(2) – Death: 10 yrs/$5,000

 

4. TR §21-904(e) – Fleeing to Avoid Arrest For Crime of Violence

Subsection (e)(2) states that a driver may not commit a violation of subsections (b)(1) or (c)(1), fleeing in a vehicle, when the driver is attempting to elude a police officer who is trying to apprehend the driver for the commission of a crime of violence for which the driver is subsequently convicted. Under this subsection the resulting penalty is more significant. Of course, the driver can only be convicted of a violation of this subsection if they are subsequently convicted of the underlying crime of violence. It is unclear whether the driver can be convicted under this subsection if the officer is seeking to apprehend the suspect based on an arrest warrant for a crime of violence which is not contemporaneous with the actual crime of violence. Some interesting double jeopardy, speedy trial, Hicks, statute of limitations, joinder or flight as consciousness of guilt issues might be raised if the fleeing and eluding does not occur contemporaneously with the commission of the crime of violence.

Penalty – Subsection (e)

3 yrs/$5,000

The penalties for §21-904 can be found in TR §27-101(p).

 

Conclusion

The Fleeing and Eluding statute is somewhat of a hot mess and guidance should be sought from your local State’s Attorneys’ Office. Not every fleeing and eluding case requires a marked police vehicle. Many do, to be sure, but not all. Wrongdoers cannot escape with impunity merely because the officer is driving an unmarked car or is in uniform and on foot.