Getting arrested can be a very frightening experience for a person. When a law enforcement officer decides to arrest you, it is extremely important that you comply with their wishes. Regardless of your guilt or innocence, you have to remain calm and follow the directions of the police officer.
Unfortunately, people aren’t always thinking with a sound mind when they encounter law enforcement. It’s human nature to have a fight or flight reaction when you are confronted by the police. For obvious reasons, it’s a very bad idea to fight a police officer because you would be facing serious charges of assaulting a police officer. Instead of assaulting a police officer, it’s not uncommon for a suspect to drop everything and run from the police whether it is on foot, or in a motor vehicle.
You are entitled to the best legal defense possible. Houston Criminal Lawyer Charles Johnson can deliver that defense for you. You can contact Houston Evading Arrest Lawyer Charles Johnson day or night, 24 hours/day 7 days/week and speak with him directly at (713) 222-7577. His Law Office is headquartered in Houston, with offices conveniently located in Dallas, Austin and San Antonio (by appointment). You can take advantage of your Free Case Review right over the phone and speak directly to Attorney Charles Johnson. Call Today and let him go to war for you to save your family’s future.
Under § 38.04 of the Texas Penal Code, a person is guilty of evading arrest or detention when they intentionally flee from a person who they know is a police officer attempting to lawfully arrest or detain them. An offense under this section is classified as a Class B misdemeanor unless the suspect used a motor vehicle to flee law enforcement. A Class B misdemeanor is punishable by up to 180 days in jail and/or a fine up to $2,000.
A conviction for fleeing the scene can also be prosecuted as a felony, which carries three levels of punishment: a state jail felony, felony in the third degree and felony in the second degree. The penalties for felony evasion range between 180 days in jail to 20 years in prison and a $10,000 fine.
If you are ever pursued by law enforcement, it’s extremely important that you allow them to arrest you. Just because you are arrested does not necessarily mean that you will be ultimately convicted of a crime. Even if you are innocent, it would be a grave mistake to run from the police because running from the police will result in charges for evading arrest. Evading arrest can be charged as a misdemeanor or a felony, and if you fled from the police in a motor vehicle, then you can be charged with a state jail felony or another felony offense. If you ran from the police, it will be extremely important that you retain the services of a seasoned defense attorney. Evading Arrest Authority Attorney Charles Johnson will be able to explain what happened to the prosecution, and they will seek sentence and penalty reductions. So what are you waiting for? Contact Attorney Johnson now to get started protecting your legal rights!
Evading Arrest or Detention in Texas
This guide will give you a breakdown of the what must be proven in an evading arrest case, as well as the possible penalties for conviction. I will also touch on “Eluding” arrest, a lesser known alternative in the law to evading arrest.
Evading Arrest or detention – Texas Penal Code Section 38.04
38.04(a) 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.
Punishment for evading arrest ON FOOT – 1st Offense
38.04(b) An offense under this section is a Class A Misdemeanor…
A Class A Misdemeanor is up to 1 year in county jail and a fine not to exceed $4,000.
Note: This is ONLY evading arrest on foot, the first time you are ever charged with evading arrest. With a previous conviction or use of a vehicle, there are enhanced punishments.
Punishment for evading arrest ON FOOT – 2nd+ Offense
38.04(b)(1)(A) An offense under this section is a State Jail Felony if the actor has been previously convicted under this section.
A State Jail Felony is 6 months to 2 years in State Jail and a fine not to exceed $10,000
Punishment for evading arrest IN A MOTOR VEHICLE
38.04(b)(2)(A) An offense under this section is a felony of the 3rd degree if the actor uses a vehicle while the actor is in flight;
(B) 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
(C) the actor uses a tire deflation device against the officer while the actor is in flight; or
(3) a felony of the 2nd degree if:
(A) 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
(B) 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.
A 3rd degree felony is 2 to 10 years in TDC (prison) and a fine not to exceed $10,000.
A 2nd degree felony is 2 to 20 years in TDC and a fine not to exceed $10,000.
Fleeing or attempting to Elude an Officer – Texas Transportation Code Section 545.421
(a)*A person commits an offense if the person operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.
Fleeing or attempting to elude a police office is a Class B misdemeanor punishable by up to 6 months in jail and a fine not to exceed $2,000. However, the offense is a Class A misdemeanor if the person, during the commission of the offense, recklessly engages in conduct that places another in imminent danger of serious bodily injury (see the punishment range for class A Misdemeanors above).
Defenses to Evading a Police Officer Depend upon the Facts
If the prosecution can prove you drove in “willful and wanton disregard for the safety of others,” a felony evading arrest charge is likely. If you cause injury or death to another while evading arrest, a three to ten year prison sentence is possible.
A conviction requires a few things. First, the police officer must be pursuing you either in a marked police car, marked motorcycle or a bicycle. Second, to convict you, the prosecution must prove that you willfully fled or attempted to elude the police officer. Third, the prosecution must prove you had the specific intent to evade that officer. Fourth, the police car exhibited at least one red light visible from the front and sounded the car’s siren. Next, the prosecution must prove you saw or should have seen the red light on the police car. Lastly, the officer must be wearing a distinctive uniform.
There are many defenses to this crime that are often overlooked. A marked police car does not necessarily have to be black and white, but it must have a red lamp, a siren and logos, insignia or other characteristics that distinguish it from a civilian car. Just having a red lamp and siren are not enough. An amber light is also not sufficient. So if the “police car” displayed no logos or insignia that made it look different than a normal car most people drive, this crime cannot be proven.
Second, the prosecution must prove you had the specific intent to evade the officer. This means you specifically intended the prohibited result, i.e. to get away or lose the officer. Often, we see evading an officer in the context of a DUI. If our client is so drunk or high that he does not realize an officer is attempting to pull him over, he cannot have the specific intent required for this crime (even if the intoxication is voluntary), although our client will most certainly face DUI charges.
In other contexts, our client is distracted by conversation with a passenger or even talking on a cell phone and just drives along without realizing there is a police car attempting make a traffic stop. Or the passenger may be forcing you to keep driving and not stop. Lastly, our client may be female and scared of pulling over in a dark area at night, so she will keep driving until there is an area to stop that appears safe.
The next element of the crime that is often susceptible to defeat is whether the red light was visible and the siren was loud enough. The siren must be at least 115 decibels, so evidence of its recent calibration and testing to this level or above should be established by the prosecution.
The last element of the crime susceptible to defenses is that the officer be wearing a distinctive uniform. A plainclothes officer, for example, who puts on a baseball cap with the words “Police” on it and a badge may be sufficient, even though a badge is not considered clothing. Arguably, if the officer was in plainclothes and only wore a badge, this would not be enough to satisfy the elements of this crime.