Baker, J.
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But we would be remiss if we did not address some of the underlying issues of this case, which are likely to reoccur for other citizens of Indiana. Cowans is far from alone in his belief that motorists are allowed to drive to a safe location after being ordered to stop by flashing police lights….
Yet despite the fact that this belief is both common and sensible, we can find no express sanction for it in either the Indiana Code or case law. We have dealt with an argument similar to Cowans’s in Woodward v. State, 770 N.E.2d 897 (Ind. Ct. App. 2002). In that case, Woodward drove roughly a mile to his residence while a police officer followed him with lights and sirens. Id. at 901. Woodward waited to pull over because he was “trying to rationalize why I would be pulled over,” and he wanted to find a well-lit place. Id. The police officer, however, testified that Woodward passed two gas stations, a Meijer store, and a McDonalds. Id. We recognized that Woodward did not drive over the speed limit or disobey traffic laws, but we could not “say that a person who has admitted to knowing that a police officer wishes to effectuate a traffic stop can, without adequate justification, choose the location of the stop.” Id. at 902 (emphasis added). Because we must “be cognizant of the dangers that could await a police officer stopping where the citizen selects,” we affirmed Woodward’s conviction of resisting law enforcement by fleeing. Id.
We are not aware of any case that has elucidated the one qualification we granted to Woodward, namely, that a person with an “adequate justification” might have some discretion to choose the location of a stop. Clearly, it cannot be the case that a driver must slam his brakes and come to an immediate stop or else face felony prosecution. Moreover, if a police officer begins flashing her lights behind a vehicle that is driving in the middle of a ten-lane highway, the driver clearly must be given time and distance to make her way over to the side of the road.
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If a motorist on a ten-lane highway sees flashing lights, is she required to “stop in her tracks” to avoid committing a felony? If a motorist is aware that there are criminals impersonating police officers in the area, and sees flashing lights on an isolated road at night, is he required to “stop right there” to avoid committing a felony? It would be an intolerable state of affairs if basic common sense, not to mention the explicit advice of many police departments, turned ordinary citizens into felons.
The State’s focus on “knowingly” is misplaced; a person who seeks a well-lit area before stopping knows that he is doing so.4 Instead, the focus should be on the definition of “flee.” At closing argument, the State informed the jury that “in fact by the definition of fleeing as it is contained in the Indiana Code he did. He did flee. He didn’t stop.” Tr. 86-87. This information is incorrect—there is no definition of criminal flight in the Indiana Code. [Footnote omitted.]
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What all these definitions make clear is that a person who drives to a location of greater safety for her or the officer, intending only to be in a location of greater safety, is not “fleeing” from the police. Such a person is not attempting to “avoid arrest,” or “escape law enforcement,” or “prevent apprehension and punishment.” Indeed, a person who seeks a well-lit area to stop, or who gradually slows down on a busy highway rather than slamming on his brakes, might facilitate the stop by making the stop safer for the officer. This is what we meant in Woodward when we referred to “adequate justification.” 770 N.E.2d at 902. [Footnote omitted.}
We believe that a defendant charged with resisting law enforcement by fleeing by vehicle would be entitled, if he so requested, to have a jury instruction regarding the definition of the word “flee.” This word is an element of the crime that the State is required to prove beyond a reasonable doubt. The definition would explain that a person who is attempting to escape police, or attempting to unnecessarily prolong the time before he is stopped, would be fleeing. The definition should also explain, however, that if a reasonable driver in the defendant’s position would have felt unsafe to come to an immediate halt, and if the defendant took reasonable steps to increase the safety of the stop without unnecessarily prolonging the process, then the defendant was not fleeing. In short, the jury instruction would put the question of whether the driver had an “adequate justification” squarely before the factfinder.
This is precisely where the question should be, as the determination requires consideration of myriad facts: how long the driver continued, the speed, the use of hazard lights, the location, the weather, the surroundings, the presence of bystanders, the availability of places to stop, the credibility of witnesses, etc. Juries are uniquely positioned to decide whether a driver was unnecessarily increasing the burden on police officers, or whether a driver was taking reasonable steps that common sense would dictate. Of course we remain “cognizant of the dangers that could await a police officer stopping where the citizen selects,” Woodward, 770 N.E.2d at 902, and so we reiterate that a driver does not have full discretion to choose to stop anywhere. But it would be equally absurd to hold that drivers have zero discretion to choose the location of a stop; whether the driver exercises that very limited discretion reasonably should be a question of fact for the jury.
The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.