car getting pulled over

Evading with a Vehicle

We all know that running from the cops is generally frowned upon, right? We assume that’s pretty common knowledge. But did you know that there are criminal charges specifically for trying to escape arrest? There’s even a special charge for trying to escape in a vehicle or boat. Just to drive that home.

This week we’re talking about Evading with a Vehicle as the final part of this month’s Too Fast, Too Furious series. If you haven’t caught the others, go give them a read here. They’re not required to understand this article, but a little learning never hurts. At least, so my doctor keeps telling me…

Let’s start, as always, by taking a look at the statute:

Texas Penal Code § 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 subsec. (b)(1), (2) as amended by Acts 2011, 82nd Leg., ch. 391 (S.B. 496), § 1 and Acts 2011, 82nd Leg., ch. 839 (H.B. 3423), § 4

(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.

Text of subsec. (b)(1), (2) as amended by Acts 2011, 82nd Leg., ch. 839 (H.B. 3423), § 4 and Acts 2011, 82nd Leg., ch. 920 (S.B. 1416), § 3

(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if the actor has been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight;
(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
(C) the actor uses a tire deflation device against the officer while the actor is in flight;  or
(3) a felony of the second degree if:
(A) 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;  or
(B) another suffers serious bodily injury as a direct result of the actor’s use of a tire deflation device while the actor is in flight.

(c) In this section:
(1) “Vehicle” has the meaning assigned by Section 541.201, Transportation Code .
(2) “Tire deflation device” has the meaning assigned by Section 46.01 .
(3) “Watercraft” has the meaning assigned by Section 49.01 .

(d) A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.

Now that was a long one… but there’s a reason why that we’ll get into a bit later.

Before we get into the Vehicle part, let’s talk about Evading.  If you run from someone you know to be a police officer (of any kind) and that police officer is attempting to stop you for a lawful reason, that is Evading Arrest.  Unlike in Resisting Arrest cases,  a possible defense against Evading is that the detention or arrest was unlawful.  However, an officer only needs “reasonable suspicion” that a crime has been or is about to be committed in order to detain someone lawfully.  Now we don’t have time today to unpack what reasonable suspicion is, but know that it is very easy for the state to prove that an officer had it and it is rare that a judge will find a stop unreasonable.

Evading on foot is a class A misdemeanor, punishable by a year in jail and a $4,000 fine, unless a person has been convicted of Evading before in which case it moves to a state jail felony.  However, once a vehicle is added to the mix, the severity of the punishment jumps up two whole notches, to a third-degree felony.  This is punishable by a minimum of 2 years and up to 10 years in prison and a $10,0000 fine.

The way the statute is written regarding punishment can be confusing, because the legislature made changes to the statute in two different bills in the same session.  This means the changes must be read together, even though they appear to contradict each other. The first change seems to say that a person who has not been convicted of Evading before that is evading in a vehicle should be charged with a state jail felony. But the second says that regardless of history, Evading with a Vehicle is a third-degree felony.Seems at odds, but the courts have spoken: they found no issues with the way the statute works and have determined that it’s a third-degree felony, not a state jail felony. The issue has gone all the way up to the Court of Criminal Appeals, so it’s pretty well settled as law at this point.

Evading in a vehicle can be a very dangerous situation.  Speed limits are exceeded and accidents can easily happen (and often do) when someone decides to get behind the wheel as a means of escape.  So the law provides for this. There’re further enhancements if someone is killed during a police pursuit.  If a person is killed as a result of the pursuit by police of a person evading in a vehicle, it becomes a second-degree felony, punishable by a minimum of 2 years in prison up to 20 years in prison and a $10,000 fine.

A few more notes on Evading: 

First, you must be intentionally fleeing from an officer.  Delaying pulling over in order to get to a safe place is not considered evading by most police officers or prosecutors.  However, delaying too long may cause police officers to react uncertainly with you during a stop, so be careful about this. 

Second, even though it requires a lawful arrest or detention, and even if you think the arrest or detention may be unlawful, it’s best not to put that to the test. The court might not agree. It is a best practice to cooperate with officers when they are attempting to arrest or detain you.  This means pulling over quickly and safely when they are trying to stop you on the roadway, not running from police if they attempt to stop you while on foot, and not resisting officers when they are attempting to put handcuffs on you.  (Resisting Arrest is another offense with a whole list of problems, so just allow an officer to put handcuffs on you, it’s not worth the headache of that potential offense on top of everything else.)

So, maybe less of this.


If you do get accused of Evading, please come talk to us! We offer free consultations and want to help you find the best options for resolving your cases.

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