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Montgomery County Criminal Defense Attorney - Evading Arrest with a Motor Vehicle

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law


Evading arrest is an interesting crime for a number of reasons. First it differs from resisting arrest in that you can not only evade an arrest but you can evade a detention. Also different from resisting arrest is that if the reason for the initial detention by the police is not legally justified then you are not guilty of evading arrest.


Police officers have to observe facts which lead to reasonable suspicion in order to detain someone to investigate.


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.


See the part where it says, "lawfully to arrest or detain him?" That is the important part. This allows a defense attorney to attack the validity of the initial traffic stop. So if you were pulled over for failure to display an inspection sticker and then you evaded arrest at 130 miles per hour for 20 minutes then your case may still be dismissed. Why? Because failure to display an inspection sticker stopped being a valid basis for a traffic stop a number of years ago. Now an inspection is required but only a registration sticker must be displayed on your vehicle's windshield.


The other part of an evading arrest case which may be defensible is the language "intentionally flee." You see the prosecutor has to prove the case beyond a reasonable doubt. He has to prove every word of the statute was violated beyond a reasonable doubt. If you were distracted by music or conversation in the vehicle while speeding, you never sped up when the officer turned on his lights, and pulled over and cooperated with law enforcement, a strong argument can be made that you did not have the intent to evade detention. If however you took off after the red and blue lights came on and accelerated to 120 miles per hour before crashing then your argument is going to be a lot weaker.


Often times I've seen Evading cases filed when someone merely wanted to drive their vehicle home before being arrested because they knew they had warrants. Sometimes prosecutors have difficulty proving these cases because of the requirement of the law to prove intentional fleeing from police.


Evading Arrest or Detention is a third degree felony if you use a motor vehicle or watercraft like a boat or jet ski. A third degree felony is punishable by 2-10 years in prison or up to 10 years of probation. Evading Arrest without a vehicle is a Class A misdemeanor unless you have been previously convicted of Evading in which case it is a State Jail Felony. A class a is punishable by 0-365 days in a county jail and a State Jail Felony is punishable by 6 months - 2 years in a State Jail Facility.



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For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.


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.
 
Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 839 (H.B. 3423), Sec. 4, and Ch. 391, Sec. 1

(b)  An offense under this section is a Class A misdemeanor, except that the offense is:
(1)  a state jail felony if:
(A)  the actor has been previously convicted under this section; or
(B)  the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section;
(2)  a felony of the third degree if:
(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; or
(3)  a felony of the second degree if another suffers death 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.
 
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