Carjacking is always considered a felony. In order to be convicted of carjacking, a defendant must take a car not belonging to him/her, in the immediate presence of the car’s rightful possessor against their will, using force or fear, with the intent to temporarily or permanently deprive the possessor of the car. The defendant must intend to take the vehicle at the time that they used force or fear against the possessor. A threat is sufficient to constitute force or fear.
The taking of the vehicle is completed once the defendant has moved the vehicle some distance, however short it may be. The car’s rightful possessor need not be inside the vehicle, merely within its immediate presence. So long as the person is close enough that they could have controlled the vehicle except for the defendant preventing them from doing so by force or fear, the element of immediate presence is satisfied. Taking someone’s car keys by force or fear, even if they are not anywhere near their car, satisfies the elements of carjacking.
Carjacking has been described as a crime against possession as opposed to a crime against ownership. This means that even if someone has a claim of ownership in the car, they are still not allowed to forcibly take it from someone who also has a right to possess it.
One can try to use defenses such as mistake of fact, self-defense, consent and other traditional affirmative defenses but they have been found to not apply to carjacking because there are very few factual scenarios which would allow for use of any of these affirmative defense to carjacking.
Elements, crimes and defenses vary from state to state and within the federal system. If you or someone you know is charged with any crime, as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law. You can always look for your local criminal attorney at www.crimelawyers.org.