Table of Contents
Introduction to Eluding 
Elements of Proof 
Presumption of Operation by Owner 
Penalties & Sentence for Eluding 
Contact Our NJ Eluding Defense Lawyers For The Help You Need 
Frequently Asked Questions An eluding charge in New Jersey is a serious criminal offense. Under the eluding statute, N.J.S.A. 2C:29-2, a person is guilty of eluding if, while operating a motor vehicle, they knowingly attempt to flee or elude a law enforcement officer after having received a signal from the officer to bring the vehicle to a stop. This is a third-degree offense. However, the charge can become a second-degree offense if the attempt to flee or elude creates a risk of death or serious injury to another person. A criminal conviction for eluding can include jail time and a driver’s license suspension of six months to two years.
If you have a criminal complaint charging you with eluding, our law firm offers an aggressive defense team that has the experience you need, including:
- Over 200 combined experience representing clients charged with second-degree and third-degree eluding
- 10 lawyers who specialize exclusively in NJ criminal defense
- Former county prosecutors who have served as Director of the Major Crimes Bureau, Juvenile, Drug Task Force, Special Operations, Domestic Violence, and even an entire Trial Division
- Certified criminal trial attorneys
- A track record of success spanning decades
A lawyer from our law office is prepared to answer any questions you may have and initial consultations are always without charge. Contact us anytime 24/7 at 855-450-8310 for immediate assistance.
Basics of NJ Eluding Charges
The offense of eluding is set forth in subsection (b) of N.J.S.A. 2C:29-2 (“Resisting arrest; eluding officer). As previously stated, this law makes it a crime to knowingly flee or attempt to elude the police with a motor vehicle. The statute provides that:
b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel…who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
Escalation of an eluding charge to a second degree crime under 2C:29-2b is significant since it results in a first-time offender losing the opportunity for Pretrial Intervention and the presumption of non-incarceration (i.e. not going to jail or prison).
Elements of Proof
There are four core elements that must be proven by the prosecutor in order to convict someone for third-degree eluding. The state must prove, beyond a reasonable doubt, that the accused:
- Operated a motor vehicle;
- On a street or highway;
- Was signaled to stop by someone he knew or reasonably should have known was a police officer; Encountered an individual who was a police officer; and
- Failed to stop in order to elude a stop.
If each of these facts is established, the state has proven a third-degree crime for eluding.
In order to prove a second-degree eluding offense, the prosecutor must establish an added element, namely, that “the motorist created a risk of death or injury during the flight”. You should also know that a presumption that such a risk was created is triggered under 2C:29-2 if the accused violated any motor vehicle law while attempting to elude. For example, driving above the speed limit (i.e. speeding) would create a presumption that there was a risk of death or injury to support a defendant being charged with second degree eluding.
Inference of Operation by Owner
A large number of eluding cases involve a motor vehicle that avoided apprehension by the police. In order to create an added disincentive for this conduct, as well as address the proof issues in these types of eluding cases, the legislature created a presumption that the registered owner was the operator of the vehicle whenever this occurs; in order words, if someone is operating a car and successfully eludes the police, it is presumed that the registered owner was the driver of the vehicle at the time of the incident. N.J.S.A. 2C:29-2b (“it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense”).
Penalties & Sentencing in Eluding Cases
The penalties that apply at the time of sentencing hinge on the degree of eluding involved. A conviction for third degree eluding results in a fine of up to $15,000 and 3-5 years in prison.
An individual is subject to a $150,000 fine and 5-10 years in prison for second degree eluding. The No Early Release Act also applies in this instance and creates a requirement that a defendant serves at least 85% of his/her prison term before they may be considered for parole.
A driver’s suspension must also be imposed at the time of sentencing regardless of the degree of eluding. A motorist’s driving privileges must be suspended for at least 6 months and as long as 24 months by the court.
Contact Our NJ Eluding Defense Lawyers For The Help You Need
An attempt to elude the police clearly has the potential to have dire consequences. This is particularly true if you are charged and/or indicted for a second degree offense. Hiring an accomplished attorney to defend allegations that you eluded is therefore pivotal to maintaining your liberty and future.
The attorneys at the Law Offices of Jonathan F. Marshall have decades of experience and, more importantly, success in defending 2C:29-2b charges in New Jersey. Eluding police is a serious charge and should be handled by a highly skilled criminal defense lawyer and this is precisely what our firm can deliver. Give us a call at 855-450-8310 for immediate assistance.
Frequently Asked Questions In Eluding Cases
Is Eluding a Felony?
Individuals often get confused concerning the severity of an eluding charge given that it stems from operation of their car, motorcycle, truck or other motor vehicle. Make no mistake about it, however, this is far from the classic traffic offense since it is an indictable felony crime. If you are convicted, you always face the possibility of prison.
Can I Obtain Probation or Pretrial Intervention If I Have Been Charged With Eluding?
You absolutely have a chance of obtaining probation and possibly even Pretrial Intervention. Achieving such an outcome definitely has plenty to do with the talents of your attorney, especially if you are looking for probation or PTI on a second degree case.
What Constitutes a Motor Vehicle Under 2C:29-2b?
The term “motor vehicle” is defined under N.J.S.A. 39:1-1 as all vehicles propelled by anything other than muscular power. Items such as cars, trucks, and motorcycles obviously fall within this definition and so would quads, golf carts, and snowmobiles.
When Does Someone Flee or Elude in Violation of this Law?
Eluding can only occur if a motorist knowingly flees the police after receiving a signal to stop. This occurs, in accordance with State v. Mendez, 345 N.J.Super. 498, 507 (App.Div. 2001) and other New Jersey reported cases, when the facts and circumstances presented to a driver indicate that there is a high probability that a police officer is attempting to make a motor vehicle stop. This is why there is a requirement that there be a signal to stop by a police officer in order to convict someone for eluding; a motorist cannot knowingly avoid a stop if there hasn’t even been a signal placing him/her on notice that a stop is being attempted.
When Does Operation Create Risk of Injury or Death To Another Person?
Eluding the police escalates to a second-degree crime if a motorist creates a risk of injury or death to any other person. It is important to keep in mind that the New Jersey Supreme Court held in State v. Wallace, 158 N.J. 552, 560, (1999) that the risk contemplated in the second degree eluding law includes not only police officers and occupants of the defendant’s vehicle, but also any people potentially exposed to injury or death along the chase route. The risk exists, in accordance with State v. Bunch, 180 N.J. 534 (2004) and a long line of cases thereafter, if the conduct created the possibility of injury to at least one person.
Will I Secure Pretrial Release If I Have Been Charged With Eluding?
As you may already know, the state no longer utilizes monetary bail as the primary tool to ensure that someone will appear in court. An individual must secure release at either a first appearance or as the result of the successful defense to a motion to detain. Our attorneys are almost always successful in obtaining pretrial release at either of these proceedings.
What Happens If There Is An Accident During the Course of Eluding?
N.J.S.A. 2C:12-1(b)(6) makes it a second-degree crime for aggravated assault to cause bodily injury to another person “while fleeing or attempting to elude”. What this means is that you will face two charges, one for aggravated assault and another for eluding, that carry 5-10 years in prison if you cause even momentary pain to another as the result of an accident while eluding.
