Both evading arrest and resisting arrest are serious offenses in Texas. While they might sound similar, resisting and evading are separate charges that encompass various nuances. Understanding each offense and the associated defenses is key to protecting your rights and future.
Resisting Arrest, Search or Transportation appears in Section 38.03 of the Texas Penal Code:
A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
Though we often label this offense as “resisting arrest,” it is important to understand that you can be charged with resisting at any point during a lawful police encounter. For example, a police officer pulls you over and asks you to exit the vehicle after he smells marijuana in the car. You refuse to exit, and a struggle ensues when the officer has to pull you out of your vehicle. Although you haven’t been formally arrested, the officer was attempting to conduct a search of the vehicle. Since the statute encompasses an arrest, search, or transportation, you will be charged with resisting.
Resisting arrest is charged as a Class A misdemeanor, wherein you can face up to 365 days in jail and/or a $4,000 fine. But, if you use a deadly weapon to resist, then you will be charged with a third degree felony and will face 2-10 years in prison and/or up to a $10,000 fine.
Section 38.04 of the Texas Penal Code defines evading arrest as:
A person commits an offense if he intentionally flees from another person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.
Like resisting arrest, it is important to note that an evading will occur during an arrest or detention. For example, you are speeding down the freeway and pass an officer that is running radar. The officer clocks you going 80 mph in a 65 mph zone. He turns on his red and blue lights and begins to trail behind you. At this point, you are effectively detained. You must pull over and allow the officer to investigate, which typically results in a citation. However, if you do not pull over and decide to continue driving, you will be arrested for evading once you are apprehended.
Anytime you are detained by a law enforcement officer, you are not free to leave. If you do flee, then you will be charged with evading arrest.
You will also be charged with evading arrest if you try to flee upon or after arrest. Let’s say the officer tells you that you are under arrest for possession of a controlled substance. Before he has the chance to put the handcuffs on you, you take off running. Again, you will be arrested for evading.
In order to be convicted of evading you must know that you are fleeing a law enforcement officer. If you though that you were running away from a crazed gunman, it is the prosecution’s burden to prove otherwise.
Evading arrest is generally charged as a Class A misdemeanor. However, there are exceptions:
- A state jail felony if you’ve been previously convicted for evading.
- A state jail felony if you use a vehicle or watercraft to flee police.
- A third degree felony if you use a vehicle while in flight and have a previous evading conviction.
- A third degree felony if another suffers serious bodily injury as a result of your attempt to flee.
- A second degree felony if another suffers death as a direct result of your attempt to flee.
Resisting versus Evading
Although they share similarities, resisting and evading are two separate and distinct offenses. Resisting arrest means that you are actively working against the officer trying to detain or arrest you. Here are a few examples of resisting arrest:
- Struggling against the arresting officer.
- Refusing to provide identification.
- Preventing an officer from handcuffing you.
- Inflicting harm or engaging in physical violence with the officer.
Evading arrest is relatively straightforward, and denotes fleeing from a police officer, either by foot or in a vehicle.
One of the major distinctions between the two offenses is that an evading arrest requires that the arrest or detention is lawful. Contrastingly, it is no defense to a resisting arrest that the arrest or search was unlawful.
For example, an officer behind you turns on his lights because you have a brake light that is out. Instead of pulling over, you continue driving and are eventually stopped and charged with evading. Later, the video footage shows that your brake light was never out, and that the officer had no reasonable suspicion to stop you. Since the detention was unlawful, your attorney argues that your case must be dismissed.
Now let’s say that you were stopped for speeding. The officer smells alcohol on your breath and asks you to perform the field sobriety tests. You refuse, telling him that you are having a diabetic episode. When the officer arrests you for DWI, you put up a fight. Later, the evidence shows that you were in fact not intoxicated. Even though your DWI will be dismissed, the resisting arrest will still stick.
A resisting or evading arrest charge can have a negative impact on your future. It is important that if charged with one of these offenses, you contact a knowledgeable criminal defense attorney to protect your rights. Call my office today to discuss your case.