I recently discussed lesser included offenses. Although Arizona’s practice of looking to the statute instead of the facts is frustrating enough in principle alone, there are some instances where I am particularly bothered by what a defendant can’t get as a lesser included offense.
One instance involves felony flight. In an unpublished decision released this past September, Arizona’s Division One Court of Appeals looked at whether someone accused of felony flight could request a lesser included instruction for failure to stop. The felony flight statute applies to a driver who wilfully flees or attempts to elude a police vehicle with lights and sirens, and the failure to stop statute applies to a driver who knowingly fails or refuses to bring his or her vehicle to a stop after being given a visual or audible signal or instruction by an officer. In both instances, the driver doesn’t stop. In one instance, the driver just fails or refuses to stop. In the other, the driver does that, but also willfully flees or attempts to elude the officer. The former is therefore a lesser included of the latter, right?
Unfortunately, it isn’t that simple. Arizona’s Division One Court of Appeals previously used ridiculous reasoning to create a nonsensical interpretation of the felony flight law that encompasses any refusal to stop for an officer in a car. Because of that, although Division One acknowledged failure to stop is a lesser-included offense of felony flight because the greater offense of felony flight cannot occur unless failure to stop also occurs, the court decided you can’t get a lesser included offense instruction. The court basically reasoned that, notwithstanding the plain language of the statutes, the only difference between them is that one involves flight from an officer in a vehicle and the other one doesn’t. You can’t be convicted of failing to stop if the officer is in a vehicle because an officer in a car automatically makes any refusal to stop felony flight. If the officer has a car, you don’t get a lesser included offense instruction.