dissenting.
The majority opinion follows the analysis of the district court by relying on the Court of Appeals case of State v. Monaghan, 116 Idaho 972, 783 P.2d 311 (Ct.App.1989). However, while I agree that Monaghan was correctly decided, the majority’s reliance on that case is misplaced.
As the majority opinion states, Monaghan interpreted former I.C. § 49-645, which defined the criminal offense of “failure to yield to an emergency vehicle” by explicitly referring to the siren and emergency light specifications set forth in former I.C. § 49-606. Former Idaho Code § 49-645(1) stated:
Upon the immediate approach of an authorized emergency vehicle making use of an audible or visible signal, meeting the requirements of section 49-606, Idaho Code, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the nearest edge or curb of the roadway lawful for parking and clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer, (emphasis added).
The Court of Appeals noted the importance of the statute’s explicit reference to the siren and emergency specifications of former I.C. § 49-606 by stating:
To determine whether proof of compliance with statutory requirements is an element of the infraction of failure to yield to an emergency vehicle, we must determine whether the statutes are clear or ambiguous. If clear, “then we read the statute literally, neither adding nor taking away anything by judicial construction____” In our view the statutes are clear and unambiguous and must be read literally.
Monaghan, 116 Idaho at 974, 783 P.2d 311 (citations omitted).
In my view, that same analysis should apply in this case. However, as I read the literal words of the criminal statute at issue here, former I.C. § 49-1102(1), this statute does not require that the specifications of former I.C. § 49-606 be made an element of the crime of eluding a police officer. Former I.C. § 49-1102(1) states:
Fleeing or attempting to elude a police officer — Penalty.—(1) Any driver of a motor vehicle who wilfully flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by a peace officer may be emergency lights or siren, (emphasis added).
Thus, former I.C. § 49-1102(1) does not explicitly require that the specifications of former I.C. § 49-606 be complied with as an element of the crime of eluding a peace officer as did the offense considered in Monaghan. Instead, I.C. § 49-1102(1) allows any “visual or audible signal.” While the visual or audible signal requirement “may be [by] emergency lights or siren,” the statute does not require emergency lights or signals of any kind and certainly does not make the signal requirements of I.C. § 49-606 an element of this offense.
*875In addition, the assertion of the majority opinion that “the waving of a flashlight or the honking of a horn” is not enough under former I.C. § 49-1102(1) is in error. If a peace officer yelled at a person at close range while on his police motorcycle or motioned to a person with his hand while driving beside him, to me this would meet the “visual or audible” requirement of the statute if it was clear that the intended person perceived and understood the meaning of the officer’s signal. This is because the purpose of former I.C. § 49-1102(1) differs from the statute considered in Monaghan. The criminal offense of “failure to yield to an emergency vehicle” must meet the visual and audible signal requirements of former I.C. § 49-606 because the signal must be loud enough or bright enough to warn all moving vehicles and pedestrians that an emergency vehicle is approaching so they can move aside. In contrast, the offense of “fleeing or attempting to elude a police officer” contemplates only that a single offender be aware of the police officer’s “visual or audible signal.” Therefore, if the offender is aware of the signal it does not matter if the signal met the requirements of former I.C. § 49-606 or was by some other means including “the waving of a flashlight or the honking of a horn."
Accordingly, because the jury found Bedard guilty of the offense of attempting to elude a peace officer and as the facts indicate that Bedard saw the “visual or audible” signals from the police officer in this case, I would hold that the judgment of the district court on this issue be reversed and that the jury verdict finding the defendant guilty of attempting to elude a peace officer be reinstated.
BAKES, C.J., concurs.