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.)
Expungement
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.
HYTA
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.
