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June 4, 1999

No. 214880

LC No. 98-002530 FH

Calhoun Circuit Court








Defendant was charged with third-degree fleeing
and eluding, MCL 750.479a(3); MSA 28.747(1)(3), resisting and
obstructing an officer, MCL 750.479; MSA 28.747, and driving with
a suspended license, MCL 257.904(1)(a); MSA 9.2604(1)(a). After
the district court bound him over on all of the charges,
defendant moved to quash the fleeing and eluding charge in the
trial court, claiming that there was insufficient evidence to
establish probable cause that he had committed the offense. The
trial court granted the motion and quashed the fleeing and
eluding count. Plaintiff appeals by leave granted, and we

Plaintiff argues that there was sufficient
evidence to support the charge of third-degree fleeing and
[1] and that the trial court should not have quashed the
count related to that charge. We agree. Generally, we review a
circuit court’s decision to grant a motion to quash a felony
information de novo to determine if the district court abused its
discretion in ordering bindover. People v Northey, 231
Mich App 568, 574; ___NW2d___ (1998). However, in this case, we
are also called upon to review the trial court’s decision as to
whether defendant’s conduct fell within the scope of MCL
750.479(a)(3); MSA 28.747(1)(3). The decision whether alleged
conduct falls within the statutory scope of a criminal law
involves a question of law, and we also review questions of law
de novo. People v Sierb, 456 Mich 519, 522; 581 NW2d 219
(1998); People v Hamblin, 224 Mich App 87, 91; 568 NW2d
339 (1997).

No prior cases have analyzed what conduct
constitutes third-degree fleeing and eluding under MCL 750.479a;
MSA 28.747(1). We are thus confronted with an issue of first

The goal of statutory interpretation is to
ascertain the intent of the Legislature. People v Sheets,
223 Mich App 651, 656; 567 NW2d 478 (1997).

The first criterion in determining the
Legislature’s intent is the specific language of the
statute. If the plain and ordinary meaning of the
language is clear, judicial construction is normally
neither permitted nor necessary. In interpreting
statutes, words are to be given their common, generally
accepted meaning. The court should presume that every
word has some meaning and should avoid any construction
that would render a statute, or any part of it,
surplusage or nugatory. [People v Fox (After Remand),
232 Mich App 541, 553; ___NW2d___ (1998) (citations
omitted), lv pending.]

MCL 750.479a; MSA 28.747(1), as amended
effective June 1, 1997, provides in part:

(1) A driver of a motor vehicle who is
or audible signal by a police or conservation officer,
acting in the lawful performance of his or her duty,
directing the driver to bring his or her motor vehicle to
a stop shall not willfully fail to obey that direction by
increasing the speed of the vehicle, extinguishing the
lights of the vehicle, or otherwise attempting to flee or
elude the police or conservation officer. This subsection
does not apply unless the police or conservation officer
giving the signal is in uniform and the vehicle driven by
the police or conservation officer is identified as an
official police or department of natural resources

(2) Except as provided in subsection
(3), (4), or (5), an individual who violates subsection
(1) is guilty of fourth-degree fleeing and eluding, a
felony punishable . . . .

(3) Except as provided in subsection
(4) or (5), an individual who violates subsection (1) is
guilty of third-degree fleeing and eluding, a felony . .
. . if 1 or more of the following circumstances apply:

(a) The violation results in a
collision or accident.

(b) A portion of the violation occurred
less, whether the speed limit is posted or imposed as a
matter of law.

(c) The individual has a prior
conviction for fourth-degree fleeing and eluding,
attempted fourth-degree fleeing and eluding, or fleeing
and eluding under a current or former law of this state
prohibiting substantially similar conduct.

The statute criminalizes the conduct of a
person who fails to obey the direction of an officer by
"increasing the speed of the vehicle, extinguishing the
lights of the vehicle, or otherwise attempting to flee or
[2] The words "flee" and "elude" as
used in MCL 750.479a; MSA 28.747(1) have not acquired a
particular meaning in our courts. Random House Webster’s
College Dictionary
(1997) defines "flee" as
"to run away, as from danger or pursuers; take flight; to
move or pass swiftly; fly; speed." It defines
"elude" as "to avoid capture or escape detection
by; evade." Id. Both terms connote an intent to take
affirmative action, not simply fail to submit.

Based on a plain reading of the statute, there
are six elements necessary to establish third-degree fleeing and
eluding: (1) that the law enforcement officer was in uniform and
performing his lawful duties and that his vehicle was adequately
identified as a law enforcement vehicle; (2) that the defendant
was driving a motor vehicle; (3) that the officer ordered
defendant to stop with his hand, voice, siren, or emergency
light; (4) that defendant was aware that he had been ordered to
stop; (5) that defendant refused to obey the order by trying to
flee from the officer or avoid being caught, which conduct could
be evidenced by speeding up his vehicle or turning off the
vehicle’s lights among other things; and (6) that some portion of
the violation took place in an area where the posted speed limit
was thirty-five miles per hour or less, or defendant’s conduct
resulted in an accident or collision, or defendant had been
previously convicted of certain prior violations of the law as
listed in MCL 750.479a(3)(c); MSA 28.747(1)(3)(c). See CJI2d
13.6c. The clear language of the statute reveals no requirement
that the defendant’s speeding exceed a certain level or that the
speeding occur over a long distance in order for the elements of
the statute to be met. The elements do, however, require the
prosecution to demonstrate that defendant refused to obey by
trying to flee or avoid capture, which element necessitates a
finding of some intent on the part of the defendant to flee or
avoid capture.

The evidence at the preliminary examination
revealed that on January 28, 1998, a uniformed sheriff’s deputy
observed a car with defective taillights pass his marked police
car. The deputy pulled out behind the car, which was undisputedly
driven by defendant, and followed it to a stoplight. After the
stoplight, as the vehicles were approaching railroad tracks, the
deputy activated his flashing emergency lights in an attempt to
signal defendant to stop. Defendant did not stop, but instead
accelerated beyond the thirty mile-per-hour speed limit and
continued on his way. The deputy then activated his siren, called
out that he was following, and continued to follow. The deputy
later turned his siren off because the other vehicle, although
speeding, was not traveling at a high rate of speed. The deputy
kept his emergency lights activated. He followed the vehicle for
approximately one mile as it made two left turns and ended up
going through an alley or "some back yards" before
coming to a stop behind a residence. Both defendant and the other
occupant of his vehicle exited, refused to heed the deputy’s call
to stop, and started to run around the house. Defendant ran onto
the porch of the house, sat down on the steps, and when the
deputy approached, pointed toward the side of the house and said
something to the effect that "he went around that way",
apparently pretending that he was not the person for whom the
deputy was looking. The deputy informed defendant that he was
looking for him, and the two began to argue. Eventually, the
deputy informed defendant that he was under arrest, and defendant
pushed and struck him. Other officers arrived and defendant was
taken into custody. Defendant’s wife, who had been with him in
his car, testified that she saw the officer following them,
commented to defendant that the officer was going to stop them,
and that defendant kept driving.

The trial court determined that, in its view,
the testimony did not reveal a "substantial effort" by
defendant to flee or elude, that there was no substantial
speeding up over distance, and that there was no effort to
"really" avoid the officer. It therefore granted the
motion to quash. We disagree with the trial court’s determination
that defendant’s conduct did not fall within MCL 750.479a(3); MSA
28.747(1)(3) as written. Keeping in mind that the statute does
not require a certain level of speeding or length of chase, the
preliminary examination testimony supports all of the necessary
elements, including that defendant intended to elude. Defendant
accelerated his car after the officer activated his flashing
lights, which, under the statute, appears to be sufficient
evidence from which to infer intent. In addition to that
testimony, however, there was also other circumstantial evidence
to conclude that defendant intended to elude the officer. The
deputy followed defendant for approximately one mile with his
emergency lights on and with his siren activated for a portion of
that time, and when defendant finally emerged from the car, he
ran away from the deputy and then attempted to misdirect him.
This testimony reasonably leads to the inference that defendant’s
intent in not stopping when ordered to do so was to avoid
capture, in other words to elude the officer. See People v
224 Mich App 43, 59; 568 NW2d 324 (1997)
(Because it is difficult to show intent by direct evidence,
circumstantial evidence is often necessary and will suffice to
show intent). Where there was competent evidence to support that
defendant committed a violation of MCL 750.479a(3); MSA
28.747(1)(3), the trial court improperly granted the motion to
quash and the district court did not abuse its discretion by
finding that there was probable cause to believe that a felony
was committed by defendant.

We acknowledge that the reported cases under
previous versions of MCL 750.479a; MSA 28.747(1) involve conduct
that exceeds the type of conduct in this case. In People v
221 Mich App 656, 658; 562 NW2d 272 (1997), the
defendant initially stopped his car, but then accelerated away as
the police officer approached him after exiting her own car. The
defendant then jumped out of the moving vehicle and fled on foot.
In People v Harrell, 54 Mich App 554, 556-557; 221 NW2d
411 (1974), aff’d 398 Mich 384 (1976), the defendant engaged the
police in a high-speed chase through city streets while
committing other traffic offenses along the way. While we are
mindful of the more extreme behavior in these reported cases, we
reiterate that the statute itself does not limit fleeing and
eluding to high-speed or long-distance chases. The Legislature
could have limited the statute in those manners if it had chosen
to do so. It did not.


/s/ Roman S. Gribbs
/s/ Michael J. Kelly
/s/ Harold Hood


[1] There are four degrees of fleeing and eluding, ranging
from fourth degree fleeing and eluding, which is a two year
felony to first degree fleeing and eluding, which carries a
maximum penalty of fifteen years or a ten thousand dollar fine,
or both. MCL 750.479a; MSA 28.747.

[2] The use of the ejusdem generis clause "or
otherwise attempting" means that acts or conduct of the same
kind, class, or character as speeding or extinguishing lights are
also included within the offense.

[3]"A district court must bind a defendant over for
trial when the prosecutor presents competent evidence
constituting probable cause to believe that (1) a felony was
committed and (2) the defendant committed that felony. MCL
766.13; MSA 28.913; MCR 6.110(e)." Northey, supra at
574 (citation omitted). Circumstantial evidence and reasonable
inferences derived from that evidence are sufficient to support a
bindover. People v Terry, 224 Mich App 447, 451; 569 NW2d
641 (1997). The prosecution is not required, at the probable
cause hearing, to prove the elements of the crime beyond a
reasonable doubt. Id. Moreover, where there is credible
evidence to both support and negate the elements of the crime,
questions of fact exist that must be determined by the jury. Id.

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