Evading Arrest Defense

Evading arrest means fleeing or trying to get away from an officer while knowing you are being detained or arrested. It happens most often with young people who panic and run.

On foot it is a Class A misdemeanor. Add a vehicle and it becomes a felony. It also comes up when an officer activates their lights and the driver has a small amount of contraband, maybe marijuana, maybe a pistol, and keeps driving instead of pulling over. It does not have to be a high-speed chase. That decision turns a misdemeanor possession case into a felony evading-with-a-vehicle case.

The firm has handled many cases that should have stayed a misdemeanor possession, with pretrial intervention or a short probation on the table, that instead carried a real risk of prison time because someone did not pull over.

The Statute

Citation: Texas Penal Code §38.04

Degree and classification

• Class A misdemeanor on foot with no priors
• State jail felony for vehicle or watercraft use on a first offense
• Third-degree felony for vehicle use with a prior, serious bodily injury during flight, or use of a tire deflation device against an officer
• Second-degree felony for a death during flight or serious bodily injury from a tire deflation device. A 2023 amendment, §38.04(b-1), added a separate third-degree felony tier with no vehicle-use or prior-conviction requirement when the evading occurs in the course of a smuggling-of-persons offense

Statutory language: 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.

Past results do not guarantee or predict a similar outcome in any future case. Every case is decided on its own facts.