Evading Arrest, Explained: Penalties, Defenses, and Legal Options

If you’ve been charged with evading arrest in Texas, you may feel overwhelmed and uncertain about what to do next. Evading arrest is a serious criminal offense that can result in hefty fines, jail time, and a permanent mark on your record.

At Whalen Law Office, we understand the stress and anxiety of facing criminal charges. In this article, we’ll break down the law on evading arrest in Texas, explain the potential penalties, and discuss strategies for fighting the charges.

What is Evading Arrest Under Texas Penal Code § 38.04?

Under Texas Penal Code Section 38.04, a person commits the offense of evading arrest or detention if they intentionally flee from a person they know is a peace officer or federal special investigator attempting to lawfully arrest or detain them.

To convict someone of evading arrest, prosecutors must prove beyond a reasonable doubt that the defendant:

1. Intentionally fled, or in other words, acted with a conscious objective or desire to evade arrest or detention; and
2. Knew the person they were fleeing from was a peace officer or federal special investigator attempting to lawfully arrest or detain them.

Evading arrest is separate from resisting arrest under Texas Penal Code § 38.03. Resisting arrest involves using force against an officer to prevent or obstruct an arrest, while evading arrest only requires intentional flight.

Evading on Foot vs. Evading in a Vehicle

The severity of the offense and potential punishment for evading arrest in Texas depends largely on whether you fled on foot or used a vehicle.

Evading arrest on foot is typically a misdemeanor, however, if you used a vehicle to flee, the charge is bumped up to a state jail felony, even if it’s your first offense.

The statute defines “vehicle” broadly to include not just cars and trucks, but also watercraft like boats and jet skis. So, if you hopped in any means of motorized transport to evade arrest, expect to face a felony charge.

Penalties for Evading Arrest Conviction in Texas

The punishment for evading arrest in Texas varies based on the circumstances of the offense, particularly whether you have prior evading convictions and if you used a vehicle to flee.

Let’s break down the potential penalties:

• Class A Misdemeanor: Up to 1 year in county jail and a fine of up to $4,000
  • Applies to evading on foot, first offense
• State Jail Felony: 180 days to 2 years in a state jail and a fine of up to $10,000
  • Applies to evading in a vehicle, first offense
  • Also applies to evading on foot with a prior evading conviction
• Third Degree Felony: 2 to 10 years in prison and a fine of up to $10,000
  • Applies to evading in a vehicle with a previous evading conviction
  • Also applies if another person suffers serious bodily injury as a direct result of the police chase
• Second Degree Felony: 2 to 20 years in prison and a fine of up to $10,000
  • Applies if another person dies as a direct result of the police pursuit

As you can see, the stakes get higher with each prior evading arrest conviction on your record. Plus, if someone gets seriously hurt or killed during the chase, you could be looking at a first or second-degree felony charge and decades behind bars.

Felony Evading Arrest Charges

Many people are surprised to learn that you can face a felony charge for evading arrest in Texas, even if it’s your first offense. The most common ways to catch a felony evading charge are:

1. Using a car, truck, motorcycle, boat, jet ski, or other vehicle to flee
2. Having at least one prior evading arrest conviction, even if you fled on foot
3. Causing serious bodily injury or death to another person as a direct result of the police chase

Because the penalties for felony evading arrest are so severe, it’s crucial to have an experienced criminal defense attorney in your corner who can identify weaknesses in the prosecution’s case and raise all applicable defenses.

Defenses to Evading Arrest Charges

While evading arrest may seem like an open-and-shut case, several legal defenses can be raised to fight the charges, depending on the facts:

Lack of Knowledge

One key element of evading arrest is knowledge that the person you were fleeing was a peace officer attempting to lawfully arrest or detain you. Potential challenges to this element include:

• The officer was in plainclothes with no visible badge or identification
• The officer was in an unmarked vehicle with no lights or sirens activated
• The officer did not verbally identify themselves as law enforcement
• You were not aware the officer was trying to pull you over (e.g., due to loud music, distractions)

If the state can’t prove beyond a reasonable doubt that you knew you were fleeing from a peace officer, they can’t convict you of evading arrest.

Unlawful Arrest or Detention

You have the right to be free from unreasonable searches and seizures under the Fourth Amendment. Police can’t just pull you over or detain you on a whim – they need at least reasonable suspicion that you’re involved in criminal activity.

Some common challenges to the lawfulness of the attempted detention or arrest include:

• No reasonable suspicion for the initial traffic stop
• No probable cause to arrest for the underlying offense
• The officer exceeded the lawful scope or duration of the stop
• The officer engaged in an unlawful search or seizure

If your defense attorney can show the attempted arrest or detention was unlawful, any evidence obtained as a result (including evidence of evading arrest) may be thrown out.

Necessity

In rare cases, a defendant may raise the defense of necessity, arguing that they fled from police to avoid greater immediate harm.

To establish necessity, you must show:

1. You reasonably believed evading arrest was immediately necessary to avoid imminent harm
2. The harm you sought to avoid clearly outweighed the harm caused by evading
3. No legislative purpose exists to exclude this particular necessity defense

For example, if you were rushing a gravely ill passenger to the hospital and police tried to stop you for speeding, a necessity defense might apply. However, the defense is narrowly construed and rarely successful.

Challenging Intent

Prosecutors must prove beyond a reasonable doubt that you intentionally fled from police – in other words, that you had the conscious objective or desire to evade arrest.

Some potential challenges to the intent element include:

• You were not aware the officer was trying to detain you
• You did not immediately pull over but slowed down or turned on your hazard lights to indicate you were looking for a safe place to stop
• You panicked and drove away out of fear or confusion, not to intentionally flee

Attacking the intent element can be a powerful defense strategy, especially in cases where the defendant’s flight was brief, or they quickly pulled over after initially failing to stop.

The Bottom Line on Evading Arrest in Texas

Evading arrest is a serious offense in Texas that can lead to hefty fines, jail time, and a permanent criminal record. Even a first-time offense can be charged as a felony if you used a vehicle to flee or caused injury to another person.

If you’re facing evading arrest charges, don’t try to handle it on your own. The stakes are too high to take chances with your freedom and your future.

At Whalen Law Office, we’ve built a reputation for providing skilled, effective representation in complex criminal cases, including evading arrest. If you or a loved one has been charged with evading arrest in Frisco, Sherman, or the surrounding areas, contact us today for a confidential consultation.