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8-1568. Fleeing or attempting to elude a police officer; penalties. (a) (1) (A) Any driver of a motor vehicle who knowingly fails or refuses to bring such driver's vehicle to a stop for a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1).

(B) Any driver of a motor vehicle who knowingly otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided by subsection (c)(1).

(2) It shall be an affirmative defense to any prosecution under subsection (a)(1) that the driver's conduct in violation of such subsection was caused by such driver's reasonable belief that the vehicle or bicycle pursuing such driver's vehicle is not a police vehicle or police bicycle.

(b) Any driver of a motor vehicle who knowingly fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, and who:

(1) Commits any of the following during a police pursuit, shall be guilty as provided by subsection (c)(2):

(A) Fails to stop for a police road block;

(B) drives around tire deflating devices placed by a police officer;

(C) engages in reckless driving as defined by K.S.A. 8-1566, and amendments thereto;

(D) is involved in any motor vehicle accident or intentionally causes damage to property;

(E) commits five or more moving violations; or

(F) is operating a stolen motor vehicle;

(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided by subsection (c)(2); or

(3) knowingly drives the wrong way into an opposing lane of travel on a divided highway as defined in K.S.A. 8-1414, and amendments thereto, knowingly departs the appropriate lane of travel into an opposing lane of travel on any roadway causing an evasive maneuver by another driver, knowingly drives through any intersection causing an evasive maneuver by another driver or causes a collision involving another driver, shall be guilty as provided by subsection (c)(3).

(c) (1) Violation of subsection (a) is a:

(A) Class B nonperson misdemeanor when the person being sentenced has no prior convictions for a violation of subsection (a) or (b);

(B) class A nonperson misdemeanor when the person being sentenced has one prior conviction for a violation of subsection (a) or (b); or

(C) severity level 9, person felony when the person being sentenced has two or more prior convictions for a violation of subsection (a) or (b).

(2) Violation of subsection (b)(1) or (b)(2) is a severity level 9, person felony.

(3) Violation of subsection (b)(3) is a severity level 7, person felony.

(4) In addition to the penalty described in paragraph (2), the court shall impose a fine of not less than $500 when the driver is operating a stolen motor vehicle during the commission of the offense.

(d) The signal given by the police officer may be by hand, voice, emergency light or siren:

(1) If the officer giving such signal is within or upon an official police vehicle or police bicycle at the time the signal is given, the vehicle or bicycle shall be appropriately marked showing it to be an official police vehicle or police bicycle; or

(2) if the officer giving such signal is not utilizing an official police vehicle or police bicycle at the time the signal is given, the officer shall be in uniform, prominently displaying such officer's badge of office at the time the signal is given.

(e) For the purpose of this section:

(1) "Conviction" means a final conviction without regard to whether sentence was suspended or probation granted after such conviction. Forfeiture of bail, bond or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction. For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section, it is irrelevant whether an offense occurred before or after conviction for a previous offense.

(2) "Appropriately marked" official police vehicle or police bicycle shall include, but not be limited to, any police vehicle or bicycle equipped with functional emergency lights or siren or both and which the emergency lights or siren or both have been activated for the purpose of signaling a driver to stop a motor vehicle.

(f) The division of vehicles of the department of revenue shall promote public awareness of the provisions of this section when persons apply for or renew such person's driver's license.

History: L. 1974, ch. 33, § 8-1568; L. 1981, ch. 42, § 2; L. 1992, ch. 239, § 29; L. 1993, ch. 291, § 4; L. 1994, ch. 291, § 3; L. 1996, ch. 180, § 2; L. 1998, ch. 145, § 1; L. 2009, ch. 132, § 2; L. 2014, ch. 76, § 1; L. 2021, ch. 103, § 3; July 1.

Source or prior law:

8-504a.

Cross References to Related Sections:

Section applicable upon highways and elsewhere throughout the state, see 8-1501.

Attorney General's Opinions:

Driving under influence of alcohol; imposition by municipal courts for subsequent violations. 82-155.

Municipal Court Jurisdiction. 83-79.

Arrest by law enforcement officer from another jurisdiction; uniform law of fresh pursuit. 87-80.

CASE ANNOTATIONS

1. Fleeing or attempting to elude a police officer is not a lesser included offense of aggravated assault on a law enforcement officer; judgment reversed. State v. Russell, 229 Kan. 124, 125, 126, 127, 128, 622 P.2d 658.

2. Cited in holding driver operating emergency vehicle in compliance with K.S.A. 8-1506 committed no tort in injury to third parties by fleeing violator. Thornton v. Shore, 233 Kan. 737, 742, 666 P.2d 655 (1983).

3. Statutory changes in K.S.A. 38-1602(b)(1) not retroactively applied to juvenile charged before change effective. In re Hockenbury, 9 Kan. App. 2d 450, 452, 680 P.2d 561 (1984).

4. Conviction hereof not necessary for conviction of aggravated vehicular homicide (K.S.A. 21-3405a). State v. Louis, 240 Kan. 175, 186, 727 P.2d 483 (1986).

5. Cited; driving while under influence of alcohol is lesser included offense of aggravated vehicular homicide (K.S.A. 21-3405a). State v. Woodman, 12 Kan. App. 2d 110, 112, 113, 735 P.2d 1102 (1987).

6. Unsworn traffic citation no longer allowed as complaint; requirement of verified complaint to commence prosecution noted. State v. Fraker, 242 Kan. 466, 467, 748 P.2d 868 (1988).

7. History of K.S.A. 8-2117 (juvenile traffic offenders) examined; limitations on length and places of incarceration determined. State v. D.L.P., 13 Kan. App. 2d 647, 652, 778 P.2d 851 (1989).

8. Cited; whether house arrest constitutes imprisonment under K.S.A. 21-3405b(b)(2) examined. State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994).

9. "Motor vehicle accident" does not include element of injury to person or property of another. State v. Cameron, 30 Kan. App. 2d 1156, 56 P.3d 309 (2002).

10. Only officer's reasons for attempting to capture defendant are relevant, not defendant's reason for eluding capture. State v. Carter, 30 Kan. App. 2d 1247, 57 P.3d 825 (2002).

11. Section requires law enforcement officer to be occupying appropriately marked vehicle; no violation since trooper was walking through parking lot. State v. Beeney, 34 Kan. App. 2d 77, 114 P.3d 996 (2005).

12. To violate K.S.A. 8-1568 one only need ignore activated emergency equipment of police vehicle. Moses v. Halstead, 477 F. Supp. 2d 1119, 1128 (2007).

13. Cited; trooper's emergency lights on but vehicle passengers told "see ya"; statute didn't require passengers to remain. U.S. v. Martinez, 537 F. Supp. 2d 1153, 1159 (2008).

14. Jury instruction must specify and define at least five underlying moving violations as elements. State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010).

15. Eluding a police officer is a crime of violence. U.S. v. Thomas, 643 F.3d 802 (10 th Cir. 2011).

16. Engaging in reckless driving or committing five or more moving violations are "options within means," rather than alternative means, thus the State is not required to prove both reckless driving and commission of five or more moving violations. State v. Castleberry, 301 Kan. 170, 185, 339 P.3d 795 (2014).

17. Defendant's prior conviction for eluding police was not a felony for purposes of imposition of career offender enhancement, where defendant had been sentenced to only six months in prison. U.S. v. Brooks, 751 F.3d 1204 (10 th Cir. 2014).

18. The term "moving violations" is not unconstitutionally vague. State v. Jenkins, 311 Kan. 39, 56, 455 P.3d 779 (2020).

19. The felony crime of fleeing or eluding a police officer occurs when the driver subjectively intends to avoid capture for a felony. State v. Davis, 312 Kan. 259, 269, 474 P.3d 722 (2020).

20. Two verdicts pursuant to alternatively charged counts under subsections (b)(1) and (2) were multiplicitous and merge into one conviction. State v. Vargas, 313 Kan. 866, 875, 492 P.3d 412 (2021).

21. Where jury returned guilty verdicts on two alternatively charged counts of fleeing or attempting to elude an officer, the convictions merge into a single conviction. State v. Berkstresser, 316 Kan. 597, 607–08, 520 P.3d 718 (2022).


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