By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Evading Arrest or detention is governed by Tex.Pen.C. 38.04 and it is committed where a person “intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.”
Evading can be charged differently depending on the facts and resulting injuries someone may sustain (in a car accident for example during a chase). It’s a Class B Misdemeanor if done without a vehicle (by foot); a State Jail Felony if done by vehicle OR if the accused has a prior evading conviction; a 3rd Degree Felony if done with a vehicle AND a prior evading conviction or if during the offense someone sustains serious bodily injury; a 2nd Degree Felony if someone dies during the evading.
The Officer Can’t Chase You Just to Chase You
Though the statute seems very cut and dry, evading cases do have many defenses. For example, An officer must be in the process of a “lawful” arrest or detention. The law surrounding detention is the same law which crops up for drug cases or DWI cases… Meaning the officer must have articulable facts which indicate there is probable cause to suspect someone has committed an offense. If a peace officer lacks probable cause, then the dentition is invalid and the fact someone attempted to flee in and of itself doesn’t make it an offense. Acquittals can and do result from this issue. (For the record evading is never a good idea regardless of legal defenses!)
You Have to Know You’re Being Chased
Additionally the state still needs to prove beyond all reasonable doubt that the accused knew it was a peace officer from which he was fleeing and/or that the person heard or knew to stop from the officer’s lawful command. Defending these elements can be difficult, but a qualified defense lawyer doesn’t give the State a pass on any element.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any case you should directly consult an attorney.