Being charged with Evading Arrest or Detention can turn a minor encounter into a serious criminal case — and using a vehicle turns a misdemeanor into a felony. Board Certified criminal defense attorney and former Felony Chief Prosecutor Brian Foley defends evading cases throughout Montgomery, Harris, Brazos, and Walker County, Texas.
What Is Evading Arrest or Detention?
Under Texas Penal Code §38.04, 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. Three elements drive the case:
- Intentional flight. Accidentally failing to notice an officer, or stopping as soon as it is safe, is not the same as intentionally fleeing.
- Knowledge that the person is an officer. The State must prove you knew it was law enforcement — marked units, lights, and sirens usually go to this element.
- A lawful arrest or detention. This is the most important defense issue. If the officer lacked reasonable suspicion to detain you or probable cause to arrest you, the attempted detention was not lawful, and there can be no conviction for evading.
Punishment Ranges for Evading Arrest in Texas
| Situation | Offense Level | Punishment Range |
|---|---|---|
| Evading on foot (first offense) | Class A Misdemeanor | Up to 365 days jail; up to $4,000 |
| Evading with a prior evading conviction | State Jail Felony | 180 days–2 years; up to $10,000 |
| Evading using a vehicle or watercraft | 3rd Degree Felony | 2–10 years prison; up to $10,000 |
| Evading causing serious bodily injury | 3rd Degree Felony | 2–10 years prison; up to $10,000 |
| Evading causing death during the pursuit | 2nd Degree Felony | 2–20 years prison; up to $10,000 |
Because using a car or truck makes this a felony, many people are surprised to learn that what felt like a brief failure to pull over is charged as Evading Arrest with a Motor Vehicle.
How Evading Arrest Cases Are Defended
The strongest defenses attack the elements above. Was the detention actually lawful? Did you know the person pursuing you was an officer? Was your conduct truly intentional flight, or were you looking for a safe place to stop, didn't realize you were being signaled, or feared for your safety? Brian reviews the dash and body-camera video, the radio traffic, and the basis for the stop to find where the State's case falls apart. Evading is frequently filed alongside other charges such as DWI, resisting arrest, or interference with public duties — and the conditions of your release will be set through bond conditions.