ELUDINGELUDINGELUDINGELUDINGELUDING
I. HISTORY
When the Code became effective on September 1,
1979, eluding was part of the resisting arrest offense,
N.J.S.A. 2C:29-2. The offense was elevated from a
disorderly persons offense if the perpetrator: (1) “[u]ses
or threatens to use physical force or violence against the
law enforcement officer or another,” N.J.S.A. 2C:29-2a;
or (2) “[u]ses any other means to create a substantial risk
of causing physical injury to the public servant or
another.” N.J.S.A. 2C:29-2b. In 1981, the Code was
amended to renumber the sections and to create a
separate offense for eluding in N.J.S.A. 2C:29-2b. That
offense was restricted to the use of motor vehicles and was
only a disorderly persons offense.
The Code was amended again in 1991 to make
eluding a fourth-degree offense if there was a risk of death
or injury. L. 1991, c. 343, § 3. A permissive inference
regarding a person’s conduct during flight or attempt to
elude was added at the same time. Id. Finally, in 1993,
eluding was elevated from a fourth-degree offense to a
crime of the third-degree. L. 1993, c. 219, § 5. It became
a second-degree offense if the attempt to elude created a
risk of death or injury to any person. Id. At the same time,
the Legislature amended N.J.S.A. 2C:12-1b(6), the
section of the Code relating to aggravated assault by a
motor vehicle while eluding the police or law
enforcement person, to eliminate the requirement of
“serious bodily injury.” L. 1993, c. 219, § 2. It
substituted “any bodily injury.” Id. Read together, the
sections suggest that the Legislature intended both
second-degree eluding and second-degree aggravated
assault caused while eluding a law enforcement officer
under N.J.S.A. 2C:12-1b(6) to require “bodily injury” or
“risk of bodily injury” as defined in N.J.S.A. 2C:11-1a
rather than “serious bodily injury.”
II. ELEMENTS AND CONSTRUCTION
The eluding statute creates a duty immediately to
bring a vehicle to a full stop after receiving a law
enforcement officer’s signal, whether the officer’s stop is
legal or illegal. State v. Seymour, 289 N.J. Super. 80, 87
(App. Div. 1996).
In State v. Wallace, 158 N.J. 552 (1999), the
Supreme Court of New Jersey ruled that, in a second
degree eluding case, the jury must be instructed that the
term “injury” means bodily injury. The failure to define
“injury” in this case, however, was harmless error because
of the permissive inference contained in the eluding
statute that the flight or attempt to elude creates a risk of
death or injury if defendant is found to have violated one
or more of the motor vehicle statutes contained in Title
39, Chapter 4. The jury must be instructed as to the
elements of the applicable Title 39 offenses. State v.
Dorko, 298 N.J. Super. 54, 58 (App. Div.), certif. denied,
150 N.J. 28 (1997). Here, the case was based on that
theory; the jury was charged with the permissive
inference, and defendant was convicted of several motor
vehicle offenses.Even if the statutory inference is unavailable,
moreover, the State need not prove that some member of
the public was in the vicinity of the chase. The eluding
statute is intended to protect all persons, including police
officers chasing the vehicle and occupants in the eluding
vehicle, as well as persons exposed along the chase route.In State v. Curt Thomsen, 316 N.J. Super. 207 (App.
Div. 1998), the Appellate Division reversed defendant’s
conviction for second degree eluding. The trial court,
prosecutor, and defense counsel were all unaware until
sentencing that, when defendant committed his crime,
eluding was a second as opposed to a fourth degree crime.
The court in sentencing defendant imposed a minimum
five year term and entered a judgment of conviction
reflecting a second degree conviction because he viewed
the matter primarily as a sentencing problem. The
appellate court held that defendant was entitled to a
mistrial at the trial level. First, defendants are entitled to
know the penal consequences of any criminal charge they
must defend against. Once it was apparent that the trial
was conducted under a misapprehension as to the gravity
of the crime involved, defendant could be convicted of no
crime of a greater degree than he and everyone else
understood to be charged. Second, the trial court could
have declared a mistrial for fundamental fairness reasons
when it became aware of the “manifest and pervasive”
error committed. Finally, defense counsel was ineffective
for not knowing the eluding statute’s effective
amendment date, particularly as it related to considering
the State’s pretrial plea offer. The Appellate Division
would not speculate whether or not a different defense
strategy would have been used at trial since the
misinformation in several ways denied defendant an
adversarial process.In State v. Wallace, 313 N.J. Super. 435 (App. Div.
1998), the Appellate Division affirmed defendant’s
eluding conviction, but remanded for re-sentencing to
reflect appropriate mergers of his resisting arrest and