C.R.S. § 18-9-116.5 – Felony Vehicular Eluding – Colorado Law

Under Colorado Revised Statute § 18-9-116.5, felony vehicular eluding occurs when you knowingly evade or attempt to evade a pursuing peace officer while driving recklessly. You must know—or reasonably should know—that an officer in another vehicle is pursuing you.

Elements of Felony Vehicular Eluding

Colorado prosecutors must prove beyond a reasonable doubt that:

1. You were operating a motor vehicle;
2. You knew or reasonably should have known that a peace officer in another vehicle was pursuing you;
3. You knowingly eluded or attempted to elude the officer; and
4. You operated your vehicle recklessly during the eluding incident.

Reckless driving means operating a vehicle with a wanton or willful disregard for the safety of people or property. The reckless driving does not have to occur at the same time as the eluding or attempted eluding, but both must occur during the same criminal episode.

Penalties for Vehicular Eluding

The felony classification in Colorado depends on whether the eluding resulted in injury or death:

• No bodily injury:  A class 5 felony carrying 1 to 3 years in prison and/or $1,000 to $100,000.
• Bodily injury:  A class 4 felony carrying 2 to 6 years in prison and/or $2,000 to $500,000.
• Death:  A class 3 felony carrying 4 to 12 years in prison and/or $3,000 to $750,000.

Additionally, the court may also impose restitution, and a conviction generally results in the revocation of your driver’s license for at least one year.

Felony vs. Misdemeanor Eluding

Felony vehicular eluding requires reckless driving, but the pursuing officer’s vehicle does not have to be marked.

In contrast, eluding a police officer under C.R.S. § 42-4-1413 is a class 2 misdemeanor traffic offense that generally involves willfully refusing to stop for an officer in a marked official vehicle after receiving a visual or audible signal to stop. Misdemeanor eluding does not require proof that you drove recklessly.

In our experience, the dividing line between misdemeanor and felony eluding often depends on the driving itself. Speed, traffic conditions, distance traveled, lane changes and the presence of pedestrians are important facts we investigate.

In this article, our Denver criminal defense lawyers will address the following key issues regarding felony vehicular eluding in Colorado law:

• 1. Elements of C.R.S. 18-9-116.5
• 2. Penalties
• 3. Defenses
• 4. Immigration Consequences
• 5. Record Seals
• Frequently Asked Questions
• Additional Reading

1. Elements of C.R.S. 18-9-116.5

For you to be convicted of vehicular eluding in Colorado, prosecutors have the burden to prove beyond a reasonable doubt the following four elements of the crime:

1. You were driving a motor vehicle;
2. You knew – or reasonably should have known – that an officer in a vehicle was pursuing you;
3. You knowingly eluded – or attempted to elude – the officer; and
4. You were operating the vehicle in a reckless manner.¹

Reckless driving means operating an automobile with a wanton or willful disregard for the safety of others. Examples of reckless driving may include:

• driving twice the speed limit or faster,
• driving against traffic,
• driving over a center median to make a quick U-turn,
• driving off-road, or
• swerving between lanes in heavy traffic.²

High-speed police chases typically result in vehicular eluding charges. Note that you can face vehicular eluding charges even if the reckless driving occurred before or after the eluding (or attempted eluding) occurred. Reckless driving and eluding do not necessarily have to happen at the same time.³

Vehicular Eluding vs. Eluding a Police Officer

Note that vehicular eluding is a separate crime from eluding a police officer (C.R.S. 42-4-1413). Unlike vehicular eluding, eluding a police officer requires that the police be in a marked car and signal you to pull over. Plus you can face charges for eluding a police officer without driving recklessly.⁴

Example: Stephanie is driving with a broken taillight through a residential neighborhood in Denver. Soon a marked police car signals for her to pull over. Panicking, Stephanie floors the gas pedal, causing the police to give chase. Stephanie would have crashed into other drivers and pedestrians had they not swerved out of the way in time.

Here, Stephanie can be convicted of both vehicular eluding as well as eluding a police officer: Vehicular eluding because she drove recklessly, and eluding a police officer because the police car was marked and signaled her to pull over.

2. Penalties

Colorado’s punishment for vehicular eluding depends on whether anyone was injured in the incident:

• Incident caused no bodily injury:  Class 5 felony carrying 1 to 3 years in Colorado State Prison and/or $1,000 to $100,000;
• Incident caused bodily injury:  Class 4 felony carrying  2 to 6 years prison and/or $2,000 to $500,000;
• Incident caused death:  Class 3 felony carrying 4 to 12 years in prison and/or $3,000 to $750,000.

Plus, the Colorado DMV will revoke your driver’s license for at least one year.

Note that the separate crime of eluding a police officer under C.R.S. 42-4-1413 is a class 2 misdemeanor traffic offense carrying 10 to 90 days in county jail and/or $150 to $300 in fines as well as DMV points.⁵

3. Defenses

Here at Colorado Legal Defense Group, we have represented countless people charged with vehicular crimes including eluding. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting C.R.S. 18-9-116.5 charges reduced or dismissed.

1. You honestly did not know – and had no reason to know – that you were being pursued by police.
2. You did not operate the vehicle recklessly at any point during the alleged eluding episode.
3. You were not attempting to elude the police officer, and you pulled over as soon as it was reasonably safe to do so.

In cases we handle, vehicular eluding cases often turn on details that are not obvious from the police report. Dashcam and body camera footage, dispatch recordings, GPS data, traffic conditions, the officer’s distance from the vehicle, and when the emergency lights or siren were activated may show that you did not know you were being pursued, were not trying to escape, or did not drive recklessly during the incident.

4. Immigration Consequences

A vehicular eluding conviction may carry serious immigration consequences and could potentially be treated as a crime involving moral turpitude. Whether it makes a noncitizen deportable or inadmissible depends on the statute of conviction, the sentence, and the person’s immigration and criminal history.

Noncitizens should consult both criminal defense and immigration counsel before accepting a plea. Learn more about the criminal defense of immigrants in Colorado.

5. Record Seals

Whether you can get your C.R.S. 18-9-116.5 case sealed from your Colorado criminal record depends on the specific charge:

• Class 5 felony (no injury):  3 years after the case closes.
• Class 4 felony (injury):  3 years after the case closes.
• Class 3 felony (death):  Ineligible for sealing.

Note that a conviction for the separate crime of eluding a police officer under C.R.S. 42-4-1413 can never be sealed, even though it is only a class 2 misdemeanor traffic offense.

Note that charges that get dismissed generally may be sealed immediately.⁷ Learn how to seal Colorado criminal records.

Frequently Asked Questions

What makes eluding a felony instead of a misdemeanor in Colorado?

The “threshold” for a felony charge under C.R.S. 18-9-116.5 is reckless driving. If you simply fail to pull over or increase your speed to avoid a marked police car, you may be charged with a class 2 misdemeanor traffic offense. However, if the prosecution can prove you drove in a “wanton or willful disregard for the safety of others” while fleeing, it escalates to vehicular eluding, which is a felony.

Does the police car have to be marked for a felony eluding charge?

No. Unlike the misdemeanor statute, C.R.S. 18-9-116.5 does not explicitly require the police vehicle to be marked with decals. The law only requires that you “know or reasonably should know” you are being pursued by a peace officer also operating a motor vehicle. If the officer is in an unmarked car but has activated emergency lights and sirens, you can still face felony charges.

Will I lose my driver’s license if convicted?

Yes. Under C.R.S. 42-2-125, a conviction for felony vehicular eluding triggers a mandatory revocation of your driver’s license by the Colorado DMV for at least one year. If you were operating a commercial vehicle, a felony conviction involving a motor vehicle is a “major offense” that will result in a CDL disqualification for at least one year, even for a first offense.

Can I be charged if I was just looking for a safe place to pull over?

Yes, police often overcharge in these scenarios. A common defense is “lack of intent.” If you maintained a safe speed, used your turn signal, and were clearly looking for a well-lit or safe area to stop rather than trying to escape, we can argue that you were not “knowingly eluding” the officer.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Swimming against the Tide: The Eighth Circuit Holds That Fleeing a Police Officer in a Motor Vehicle is Not a Crime of Violence – Missouri Law Review.
• The Policeman’s Privilege to Shoot a Fleeing Suspect: Constitutional Limits on the Use of Deadly Force – American Criminal Law Review.
• Per Se Reasonable Suspicion: Police Authority to Stop Those Who Flee from Road Checkpoints – Duke Law Journal.

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Legal References