Evading Arrest

Are you facing a criminal allegation for Evading Arrest? This can be a misdemeanor. It can also be a felony, depending on how the alleged incident took place. For instance, one very simple initial question is: did you attempt to evade an arrest on foot or in a car? The answer to that question will tell a good bit about what kind of charge you will be facing. Both are discussed below. There are other questions to ask as well, and the Evading Arrest statute has many parts to it. This page discusses what it means, and what you can expect if you are facing this criminal charge. It is not possible to address the specific aspects of your case without talking to you directly. If you or a loved one is having to deal with this, please call me. I will discuss your case with you. I am happy to consult with you, free of charge. Whether you are facing misdemeanor or a felony, Evading Arrest is a serious charge, and it is important to talk with a criminal defense attorney who can guide you and build your defense.    

What is Evading Arrest in Texas?

The law on Evading Arrest comes from Chapter 38 of the Texas Penal Code. This chapter of the penal code deals with obstructing governmental operations in general. Evading arrest is grouped together with other crimes such as Resisting Arrest and Failure to Identify. Here is the statute:  

Section 38.04. Evading Arrest or Detention.

  • A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.
  • An offense under this section is a Class A misdemeanor, except that the offense is:
  • a state jail felony if the actor has been previously convicted under this section;
  • a felony of the third degree if:
  • the actor uses a vehicle while the actor is in flight;
  • another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
  • the actor uses a tire deflation device against the officer while the actor is in flight; or
  • a felony of the second degree if:
  • another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
  • another suffers serious bodily injury as a direct result of the actor’s use of a tire deflation device while the actor is in flight.

As you can see, there are different parts to this law. There are several different kinds of Evading Arrest. This is simply because there are different ways a person can attempt to evade arrest:

  • A person can run from the police on foot
  • A person can also flee from the police in a vehicle

There are, presumably, many other ways to flee from the police. You could flee on a motorcycle, or on a bicycle. Vehicle is defined broadly in the Transportation Code.[1] There are also enhanced penalties if someone flattens the tires of a police car, or causes serious bodily injury while fleeing. The rest of this article breaks down and discusses each part of the statute in turn, and outlines the specific penalties for each.                       

What Are Some Defenses to Evading Arrest?  

To begin with, here are the things that must happen for an Evading Arrest charge to stick to you: a peace officer must be trying to lawfully arrest or detain you, you must know the person trying to lawfully arrest you is a peace officer, and you must flee from that person intentionally. Let’s discuss all of these terms in bold.

It is a defense to evading arrest that the person is not a peace officer. Although there are many variations and examples of what a “peace officer” means.[2] Everything from park ranger to security guard. It is also a defense to this statute if the peace officer is not trying to “lawfully arrest or detain” you. The Federal and Texas Constitutions mandate that arrests and detentions be lawful. We have laws that enforce our rights and police must abide by these laws. This topic is a lengthy article unto itself, but suffice to say that the lawful arrest mandate is a very important requirement. IT is also a defense if you have not “intentionally” evaded an arrest. The battle over whether something was an intentional act or not is an age old criminal defense battle. Intending to evade means that it is your conscious objective to flee or evade. This means that accidentally evading an arrest is a defense, or not intending to do so, is a defense. Closely related to intent is that you have to “know” that the individual trying to lawfully arrest you is a peace officer. If you did not know that a peace officer is trying to arrest and detain you, that is also a defense to Evading Arrest. And this part is more important, and arises more often than you might think. Police don’t always wear their easily identifiable navy blue uniforms. Detectives often wear plain clothes. A lot of times, the detective or detectives are wearing street clothes, and the incident happens quickly. Whether or not the detectives had time to show their badges to the person being charged with Evading Arrest will be a key issue in the case.              

What are the Penalties for Evading Arrest on Foot?

Running from a peace officer on foot is a Class A misdemeanor. This means that it carries a potential range of punishment of up to one year in jail and up to a $4,000 fine. These are the maximum penalties. Probation is also available.  However, if you have been convicted of this before, you will be charged with a state jail felony. A state jail felony carries a potential range of punishment of up to two years in state jail and up to a $10,000 fine.      

What are the Penalties for Evading Arrest by Vehicle?

If you try and evade a police officer in your vehicle, the charge is going to be more stiff. Evading in a vehicle is a third degree felony. A third degree felony carries a potential range of punishment of between two and twenty years in prison, and up to a $10,000 fine.  

What is Arrest and What is Detention?

There are many Texas and Federal rules that govern when a police officer can make a lawful arrest or detention.[3] Furthermore, the Fourth Amendment to the United States Constitution prohibits police from making unconstitutional seizures.[4] A seizure of a person amounts to an arrest, and essentially police need either a warrant or probable cause to make an arrest. A detention, as opposed to an arrest, is when a person is briefly stopped but not taken into custody. This is, for instance, when a police officer pulls you over for speeding, for running a red light, or for having a broken taillight. That is a detention but not an arrest; however, a police officer needs some objective reason to detain you, and cannot detain you simply on a whim. There has to be an articulable reason for your detention. If there is not, whatever criminal charge stems from the detention will be excluded, and you win your case.                                    

Do You Need a Criminal Defense Lawyer?

If you are facing this or any criminal charge, call me and we can discuss the specifics of your case and your defense. Evading arrest is something of a conundrum, if you think about it. If a person is in the position of having to defend themselves against a criminal allegation, how can that person have evaded arrest? Facing a criminal charge is not exactly very evasive. You have been arrested and now you are being told to hire an attorney and deal with your criminal charge. Call me and we can discuss our charge, build your defense, and get your life back on track.       

[1] Tex. Transp. Code Ann. Section 541.201

[2] “Peace officer” is defined broadly in Article 2.12 of the Code of Criminal Procedure. If the person trying to arrest you if a police officer, sheriff, or deputy, or constable, those are obviously going to qualify as a peace officer. Peace officer includes many more things, including airport security personnel, park rangers, and many, many others.  

[3] Tex. Code Crim. Pro. 14, 15. Chapter 14 outlines the lawful authority of police to make an arrest without a warrant. Chapter 15 outlines the requirements for arrest with a warrant.    

[4] U.S. Const., amend. IV  

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