In State v. Ritts, 94 Wn. App. 784, 973 P.2d 493, 494 (Wash. Ct. App. 1999), the Court of Appeals of Washington, Division Three, affirmed the trial court's granting of the defendant's motion to dismiss the charge of attempted felony eluding where the police car the defendant attempted to elude was not "marked" with identifying police lettering or insignia, although the car was equipped with flashing lights and a siren.
In Ritts, the facts were undisputed. 973 P.2d at 494. The police officer was in uniform; however, he was driving an unmarked vehicle. Id.
"The vehicle was equipped with alternating high beam and headlights (wigwags), siren, red and blue strobe lights mounted at the top of the windshield and inside the front grill, and blue and yellow flashers in the rear window.
It was not 'marked' with lettering or a logo on the doors." Id. at 495.
The defendant when first approached by the officer braked hard and then drove off at a high speed for about two miles. Id. The defendant subsequently abandoned the car and ran on foot. Id.
The defendant "admitted he saw the officer behind him." Id.
The defendant was charged with violating Washington, Rev. Code Wash. (RCW) § 46.61.024, which provided:
Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.
The Court addressed "whether the flashing lights and siren 'appropriately marked' the undercover Bronco as a police vehicle, absent a police logo or lettering on the sides." Id.
The Court explained RCW § 46.08.065 requires that "all public vehicles including police cars must be marked on the sides with identifying lettering or logo." Id.
Undercover sheriff's office and police vehicles, however, are exempt from the lettering or logo requirement. Id.
The Court also observed that because RCW § 46.61.024 is a criminal statute, it must be strictly construed in favor of the defendant. Id.
The Court reasoned:
The eluding statute expressly requires that the signal to stop come from a uniformed officer whose vehicle is appropriately marked showing it to be an official police vehicle. RCW 46.61.024. Appropriate marking is described in RCW 46.08.065 as identifying lettering or logo. The undercover exemption of RCW 46.08.065(1) waives the administrative marking requirement to permit the sheriff's department to operate unmarked cars for investigations. However, the criminal statute cannot be read to waive the requirement that the police vehicle be marked.
The plain language of RCW 46.61.024 expressly requires both a signal and a marked car. It does not require one or the other. If either the presence of signaling equipment or the nature of the signal itself renders a police vehicle appropriately marked, the language requiring appropriate identifying marking is superfluous. The statutory language includes no exception for unmarked undercover vehicles, with or without flashing lights.
. . . .
. . . The undercover vehicle pursuing Mr. Ritts was not appropriately marked as a police vehicle. Therefore, the State failed to prove the elements of RCW 46.61.024. This may not be the result the Legislature intended by this statute, but it is nonetheless the result required by the present wording of the statute. We are constrained to therefore affirm the order of dismissal. Id. at 496.
The Court held that even though the defendant admitted he knew an officer was behind him, this did not "relieve the State of proving the elements of the eluding statute." Id.