Fleeing and Eluding

Fleeing and Eluding vs. Fleeing and Eluding
Have you ever wondered if there is a difference between the Fleeing and Eluding Statute in the Motor Vehicle Code (257.602a) and the one in the Penal Code (750.479a)? While they have the same words, they do not have the same consequences.

According to the statutes, Fleeing and Eluding in the Motor Vehicle Code can not be reduced to attempted. MCL 257.204b(2) states, with added emphasis, "the court shall impose a criminal penalty for a conviction of an attempted violation of this act . . .in the same manner as if the offense had been completed."

If a defendant pleas to Attempted Fleeing and Eluding under 257.602a, the court must treat it with the same penalty as the original offense. In other words, Attempted Fleeing and Eluding 4th degree is still a two-year felony. However, Fleeing and Eluding under the Penal Code does not have that provision. Attempted Fleeing and Eluding 4th degree under the Penal Code is a one-year misdemeanor. (The licensing sanctions on a driver's license are not affected by either provision. The impact on the defendant's license is the same as if the defendant was convicted of the original charge. MCL 257.204b(1).)

Jurisdictional Issues
This raises another issue. Many times a Fleeing and Eluding 4th Degree charge is reduced to an attempt in District Court. However, under the Motor Vehicle Code, the penalty is still two years and is outside the court's jurisdiction to sentence the defendant.

To "complicate" matters, when the District Court sends the abstract of conviction to the Secretary of State (SOS), on an Attempted 4th Degree Fleeing and Eluding, the SOS still considers it a felony and kicks it back. This happens with either provision because the District Court has no jurisdiction to handle a felony, or because of the computer program. MCL 257.204b(1) says that the license sanctions shall be the same as the original offense charge. The computer reads the original charge as a felony coming from District Court, sees it as an error, and kicks it back. This means the license action does not take place, either because of the law or a computer program glitch. According to the Secretary of State's office, to get around the computer, the District Courts must enter the abstract of conviction manually. If that is not done, it is very likely that the defendant is not receiving the proper license sanctions. (The computer issue does not happen with the Circuit Court taking the plea since it has jurisdiction on the original charge.)

One area where these two statutes do not have a different impact is under the Expungement Statute (MCL 780.621). According to that statute, expungement is not allowed for "traffic offenses." Traffic offense is specifically defined as offenses under the Motor Vehicle Code (MCL 780.621a), thus, the Fleeing and Eluding Statute in the Motor Vehicle Code can not be expunged. So it would appear that it is possible to expunge a conviction for Fleeing and Eluding under the Penal Code. However, this is wrong. MCL 257.732(20) provides that "A court shall not order expunction of any violation reportable to the secretary of state under this section." Pursuant to MCL 257.732(4)(a), a fleeing and eluding conviction under the penal code must be reported to the Secretary of State. Thus, neither charge can be expunged.

Finally, another area of concern is under the Holmes Youthful Trainee Act (HYTA), MCL 762.11. According to that section, HYTA is not allowed for "a traffic offense." As used in that section, "traffic offense" means a violation of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, or a violation of a local ordinance substantially corresponding to that act, which involves the operation of a vehicle and, at the time of the violation, is a felony or a misdemeanor.

Thus, a person charged for Fleeing and Eluding under the Penal code could get HYTA status, and a person charged under the Motor Vehicle Code could not. However, this question has not been definitely answered.

The bottom line is when a person is being charged with Fleeing and Eluding, be aware of the difference between the two statutes. While they have the same wording, they have different consequences.