Written by attorney Patrick Mahaney

Alabama's "Attempt to Elude" Statute

Effective August 1, 2009, section 32-5A-193, the traffic code "attempting to elude" statute, was repealed and replaced by a more comprehensive statute, now located in the Alabama Criminal Code at 13A-10-50 et seq. This new section of law is a comprehensive revision of the law surrounding the intentional flight from law enforcement. In 13A-10-51, for purposes of this statute, the statute defines a "law enforcement officer" as: Holding the power of arrest Certified by APOSTC Acting in his or her official capacity Not on strike or involved in a work stoppage Not on duty as a private security officer. This definition of "law enforcement officer" is narrower and more restrictive than the general definition of a law enforcement officer found in Rule 1.4 (p) Alabama Rules of Criminal Procedure. The phrase "not on duty as a private security officer" may prove problematic in future cases. The case law of Alabama has long held a law enforcement officer, once sworn by the employing governmental authority, holds a general power of arrest both "on duty" and "off-duty." This includes law enforcement personnel who have not yet become POSTC certified. Further, a police officer working as security for a private business retains the general power of arrest. See, Ringstaff v. State, 480 So. 2d 50 (Ala. Cr. App. 1985). An Alabama law enforcement officer retains qualified immunity from a civil rights action based on unlawful use of force when the force employed in making the arrest took place while the officer was "off-duty." In Perry v. Greyhound Bus Lines, where two Montgomery police officers were working in the municipality's police uniform in an "off-duty" capacity as a private security for a bus company, the Court held the officers held both the power to arrest and the inherent right to use reasonable force to make an arrest, irrespective of the fact their employment at the time of the arrest was as a private security officer. See, Perry v. Greyhound Bus Lines, 491 So. 2d 926 (Ala. 1986). In section 13A-10-52, unlawful flight from a law enforcement officer is defined as: a) Intentional flight by any means b) While operating a motor vehicle to intentionally flee or attempt to elude a law enforcement officer "after having received a signal from the officer to bring the vehicle to a stop." [Note: Unlike former 32-5A-193, the term "signal" is not further defined.] c) Establishes the penalty as a Class A misdemeanor unless the flight or attempted flight causes actual death or physical injury to "innocent bystanders or third parties" in which case the crime shall be punished as a Class C felony. d) In addition, the court shall order the suspension of the defendant's driver license for a period of not less than six months nor more than two years. [Note: Presumably, this suspension of driver license shall take place whether the offender was operating a motor vehicle or not. If the sentencing court does not enter a specific duration for the license suspension period, the Department of Public Safety, upon receipt of the conviction, shall enter a six month suspension by operation of law.] In section 13A-10-53, the statute establishes two affirmative defenses: the underlying arrest was unlawful or that the person operating the motor vehicle did bring the vehicle to a stop "within a reasonable time and at a reasonable location based on the facts and circumstances of the stop." Finally, in section 13A-10-54, the statute prohibits also charging resisting arrest under Code section 13A-10-41 "based on the same facts" as the violation alleged in this section.

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