Colorado § 18-9-116.5 - Vehicular eluding.

§ 18-9-116.5. Vehicular eluding.

(1) Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he or she is being pursued by said peace officer, and who operates his or her vehicle in a reckless manner, commits vehicular eluding.

(2) (a) Vehicular eluding is a class 5 felony; except that vehicular eluding that results in bodily injury to another person is a class 4 felony and vehicular eluding that results in death to another person is a class 3 felony.

(b) Repealed.

Source: L. 75: Entire section added, p. 620, § 16, effective July 21. L. 86: Entire section amended, p. 786, § 1, effective July 1. L. 89: Entire section amended, p. 840, § 88, effective July 1. L. 2000: Entire section amended, p. 698, § 17, effective July 1. L. 2008: Entire section amended, p. 2084, § 1, effective July 1. L. 2023: (2)(b) repealed, (HB 23-1293), ch. 298, p. 1789, § 35, effective October 1.

Cross references: For driving a motor vehicle with a wanton or a willful disregard for the safety of others, see reckless driving as contained in § 42-4-1401.

ANNOTATION

A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more police officers, each constituting a new volitional departure in defendant's course of conduct. People v. McMinn, 2013 COA 94, 412 P.3d 551.

Under double jeopardy principles, defendant's four convictions for vehicular eluding do not merge with one another, and defendant's four convictions for eluding a police officer do not merge with one another because each officer was eluded during separate times at separate locations. People v. McMinn, 2013 COA 94, 412 P.3d 551.

Eluding a police officer, as defined in § 42-4-1512, is not a lesser included offense of vehicular eluding. People v. Fury, 872 P.2d 1280 (Colo. App. 1993) (decided prior to 1994 amendment relocating former § 42-4-1512 to § 42-4-1413); People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).

Reckless driving is a lesser included offense of vehicular eluding. People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).

To find defendant guilty of aggravated motor vehicle theft, the jury had to find that defendant committed the crime of vehicular eluding. Accordingly, defendant's conviction for vehicular eluding must merge into his conviction for aggravated motor vehicle theft. People v. Ramirez-Armas, 2026 COA 1, 586 P.3d 209.

"Wanton or willful disregard" for safety under § 42-4-1401 is essentially the same element as the "reckless" state of mind specified in this section. People v. Pena, 962 P.2d 285 (Colo. App. 1997).

The portion of the statute requiring proof that eluding resulted in the death of another person is a sentence enhancing provision, not an essential element of the offense of vehicular eluding for purposes of merger. People v. Avila, 944 P.2d 673 (Colo. App. 1997).

Therefore, vehicular eluding is not a lesser included offense of vehicular homicide because vehicular homicide does require proof of death. People v. Avila, 944 P.2d 673 (Colo. App. 1997).

A child who is in utero at the time of the vehicular eluding offense who is subsequently born alive and dies from injuries sustained due to the offense can be a victim by virtue of the plain meaning of the statute. People v. Lage, 232 P.3d 138 (Colo. App. 2009), overruled in People v. Jones, 2020 CO 45, 464 P.3d 735.

Vehicular eluding requires only proof that the driver both eluded or attempted to elude a police officer and operated a car recklessly, but not necessarily at the same time. People v. Sherwood, 5 P.3d 956 (Colo. App. 2000).

The intent of the vehicular eluding statute is to protect members of the public from the dangers created by a driver attempting to elude a police officer. There is therefore no need for a prosecutor to identify a particular victim in charging a defendant. People v. Fury, 872 P.2d 1280 (Colo. App. 1993).

Applied in Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981).