FLEEING and ELUDING vs. FLEEING and ELUDING
Have you ever wondered if at all if there is a difference between the FLEEING and ELUDING Statue/Law 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 outcome/consequences.
According to the Statues/Laws, 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. What this means is, ATTEMPTED FLEEING AND ELUDING, 4th DEGREE is still a two-year felony. However, FLEEING AND ELUDING under the Penal Code is a one year MISDEMEANOR. As, a lawyer, when a client is charged with FLEEING and ELUDING under the Motor Vehicle Code, and no defense is present, then you want to try to work out an agreement whereby your client pleads to FLEEING and ELUDING under the Penal Code. Again, this will allow and justify a reduction from a felony to a misdeameanor. The difference between the two Statues is that individuals are charged under the Motor Vehicle Code/Laws when a motor vehicle is involved. The Penal Code/Laws contains crimes and punishment/penalties for offenses both used by motor vehicles and otherwise.The impact on an individuals license is the same as if the defendant was convicted of the original charge. MCL 257.204B(1)
EXPUNGEMENT
I often receive calls and e-mails asking me whether a previous conviction can be removed from criminal history. The answer is yes, and no. First let me answer this question as it relates to any offense involving a Motor Vehilce. NO, you can never ask a court of law to remove a conviction where it involved a Motor Vehicle, as defined under the Motor Vehicle Code as discussed above. This means among others, that DRINKING and DRIVING convictions, DRIVING ON A REVOKED/SUSPENDED LICENSE convictions, FLEEING and ELUDING convictions, RECKLESS can never be removed from your criminal history once a plea is entered. There are other ways that a defendant prior to entering a plea can work out an agreement with a prosecutor to avoid convictions and abstracts sent to the state. This is an entire discussion to be covered at a later date.
WHAT IF SOMEONE IS CHARGED WITH FLEEING and ELUDING under the Motor Vehicle Code, yet they are allowed to enter a plea to same under the Penal Code? DOES REMOVING THE CHARGE FROM THE MOTOR CODE TO THE PENAL CODE ALLOW FOR EXPUNGMENT? ANSWER NO
MCL 257.732(20) provides that “A court shall not order EXPUNCTION of any violation reportable to the secretary of state under this section.
HYTA
Finally, another issue that must be resolved is, can a TRAFFIC OFFENSE, be covered under HOLMES YOUTHFUL TRAINEE ACT (HYTA), MCL 762.11. ANSWER, NO. HYTA is not allowed for “A TRAFFIC OFFENSE.”
“TRAFFIC OFFENSE” means a violation of the Michigan VEHICLE CODE, or a violation of a local ordinance substantially corresponding, which involves the operation of a vehicle, at the time of the violation, is a Felony or Misdemeanor. Basically what this all means is that a person charged with FLEEING and ELUDING under the MOTOR VEHICLE CODE could not get HYTA status and a person charged under the PENAL CODE could. However there has been debate as to the above.
WHAT IS EXPUNGEMENT? In plain terms after a (5) year period from the date of your conviction you can ask the court/judge who presided over your case to remove the conviction from the public record. Thus, for job applications, loans, interviews you would no longer have to admit to or mark off that you have any prior criminal convictions. Take notice that you can only seek out this remedy if you have one conviction of either a MISDEMEANOR or FELONY. Meaning, if when you were 18 you were charged and convicted of HOME INVASION/FELONY, and then at 24 received a conviction for DRIVING ON A SUSPENDED LICENSE/MISDEMEANOR you are barred forever from utilizing EXPUNGEMENT. If you only had the conviction for HOME INVASION, and that was it period, then (5) years after the fact, you can apply for relief.
HYTA, simply explained is a law that allows for a bite of the apple. If you are someone 17 years old yet under 21 years old at the time an offense was committed, FELONY or MISDEMEANOR, and you are eligible, then once you enter a plea of guilty the court will hold off from entering a criminal conviction if you successfully satisfy probation. Other terms and conditions may apply according to orders of court.
Please feel free to e-mail any questions regarding this article or others posted here.