What is Evading Arrest?
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In Texas, the offense of evading arrest occurs when a person flees a police officer who is legally attempting to lawfully detain or arrest that person. That is not to say that every police encounter requires a person to stop. An officer must have reasonable suspicion to stop a person. [If an officer does not give you a reason for the stop, a prudent and respectful question would be to ask whether you are being stopped. This may seem obvious, but officers often make consensual encounters with people who could have walked away if they only knew to ask.] If an officer has reasonable suspicion to stop someone, probable cause for their arrest, or a warrant for their arrest, then fleeing from that officer is the criminal offense of evading arrest under Penal Code Section 38.04.
Under Texas Penal Code 38.04, “a person commits the 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.” [Sorry, Bandit!]
Elements of Evading Arrest
Evading arrest consists of four elements that must be proved by the government in order to convict. Tex. Pen. Code § 38.04(a) The government must show that at the time of the incident:
- the person was acting intentionally;
- the person fled;
- the person knew that he was fleeing from an officer; and
- that the officer was attempting to lawfully detain or arrest the person.
In Texas, intentionally is defined as a “conscious objective or desire to engage in the conduct or to cause the result.” Tex. Pen. Code § 6.03(a). Evading arrest does not require the use of any physical force. Using physical force would result in the offense of resisting arrest. Tex. Pen Code § 38.03(a).
Evading Arrest on Foot
Depending on the circumstances, evading arrest can be a misdemeanor or a felony can in Texas. If the person flees the police on foot, the offense is a Class A misdemeanor under most circumstances.
Evading Arrest on Foot with a Prior
If a person has been convicted of evading previously, the subsequent offense becomes a state jail felony. Tex. Pen. Code § 38.04(b)(1)(B).
Evading Arrest in a Vehicle
Evading Arrest in a Vehicle is a State Jail Felony. Tex. Pen. Code § 38.04(b)(1)(B).
Evading Arrest in a Vehicle with a Prior
A subsequent charge becomes a third-degree felony. Tex. Pen. Code § 38.04(b).
A person who has evaded arrest and broken another law in the same course of conduct is subject to prosecution for both crimes. Tex. Pen. Code § 38.04(d). Evading arrest itself is a continuing crime and a person cannot be charged twice for the same incident. Instead, the one evasion lasts until the person is apprehended by officers. Hobbs v. State, 175 S.W.3d 777, 781.
Punishment Enhancements for Evading Arrest
There are aggravating circumstances that can cause the offense to be charged as a higher degree offense. One of those aggravating circumstances is a prior conviction for the same offense. Tex. Pen. Code § 38.04(b)(1)(A). If the actor has two aggravating factors such as a prior conviction under this section and use of a motor vehicle, the offense is then bumped up again to a third degree felony. Tex. Pen. Code § 38.04(b)(2)(A). A third degree felony will also result from the use of a tire deflation device in an attempt to evade or the serious bodily injury of another as a direct result of the police attempting to chase someone evading arrest. Tex. Pen. Code § 38.04(b)(2)(B)-(C). If the use of a tire deflation device itself causes a serious injury, a second-degree felony charge will ensue. Tex. Pen. Code § 38.04(b)(3)(B) (West 2011). If a death of another person results from the officers attempting to apprehend the evading person, a second-degree felony will be charged. Tex. Pen. Code § 38.04(b)(3)(A).
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