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  • Brian Foley

Montgomery County Criminal Defense Attorney - Evading Arrest

Montgomery County Criminal Defense Attorney - Brian Foley discusses the charge of Evading Arrest in Texas, Conroe, Houston, and The Woodlands.

Evading Arrest is an interesting crime in the State of Texas. It can be a misdemeanor, a state jail felony, a third degree felony or a second degree felony. The punishment range could be from a fine only all the way to life in prison. It is also strangely not merely evading "arrest." There is also evading detention.

Sec. 38.04.  EVADING ARREST OR DETENTION.  (a)  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.

In only a few short words the Texas penal code outlines that a person commits the offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain.

Misdemeanor - An Evading arrest is a Class A misdemeanor in Texas when it is done on foot or without the use of a motor vehicle.

State Jail Felony - An evading arrest is a State Jail felony in Texas when the person evading has a prior conviction under the Evading statute.

Third Degree Felony - An evading arrest is a third degree felony when the person evading;

A)  the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section; or
(B)  another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight

Second Degree Felony - an Evading Arrest is a second degree felony when another suffers serious bodily injury as a direct result of the attempt to apprehend the actor while the actor is in flight.

The way you beat an Evading Arrest charge is to prove that the State cannot prove one of the essential elements beyond a reasonable doubt or prove that the detention or arrest was illegal to begin with by attacking the reasonable suspicion for the detention or probable cause for the arrest. Typically the only element that will be at issue in an Evading Arrest case will be that the defendant "intentionally" evaded arrest. Intentionally is a very difficult mental state and it is the only mental state which the State may prove in an Evading case. The most likely type of evading arrest case to be disproven because of a lack of intent is when a defendant may be intoxicated or distracted while driving and slowly or at a reasonable speed continues to drive without knowing that police are chasing the person. The mental state is that the actor must "intentionally flee" meaning they must be trying to get away and not merely failing to pull over at the first reasonable location.


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