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Resisting Arrest and Evading Arrest

Resisting Arrest and Evading Arrest are separate offenses under Texas law. Resisting arrest is defined in Section 38.03 of the Penal Code, and Evading arrest is defined in Section 38.04. These offenses both describe situations in which defendants are accused of trying to keep from being arrested. Of course, no one wants to be arrested and we all try to avoid this from happening. But “evading” and “resisting” are never allowed, but there are limitations on what is considered “evading” and “resisting.” Also, it can be important to understand what these two offenses are to determine when you can legally leave an encounter with the police.

These cases frequently hinge on whether the officer was lawfully attempting to arrest or detain the accused individual. This is usually attacked by means of a “Motion to Suppress.” I have more information below about the elements of proof required for each of Evading Arrest and Resisting Arrest below.

Note that Section 545.421 of the Texas Transportation Code specifies an entirely separate offense for the scenario in which someone “operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.”

What is the law on Evading Arrest?

Section 38.04 of the Texas Penal Code defines Evading Arrest as follows:

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.

What is the law on Resisting Arrest?

Section 38.03 of the Texas Penal Code defines Resisting Arrest as follows:

A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

What is the difference between Resisting Arrest and Evading Arrest?

Resisting Arrest requires you to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. Therefore, even if you were arrested unlawfully, you can still be convicted if you resist.1

Evading Arrest does not require you to have used force, but it does require the evasion to be from a lawful arrest. So you can be convicted of Evading Arrest even if he or she did not use force, but only if the arrest was lawful. If the arrest was unlawful, then he or she cannot be convicted of Evading Arrest.

What are the defenses to Resisting Arrest?

The use of force to resist an arrest or search is justified under Texas Penal Code Section 9.31(c):

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

What does the government have to prove?

The government has to prove intent for both of Evading Arrest and Resisting Arrest. This means that you are not guilty of either crime if you did not intend to flee or intend to resist arrest. If you did not know that the police were trying to arrest you, then you cannot be guilty of Resisting Arrest. For instance, if you were not paying attention or you thought the police were trying to get someone else, than you have a defense to these charges.

Sometimes I come across situations where individuals are charged with Evading Arrest, but they are charged with nothing else. This always begs the question whether they were being lawfully detained in the first place or intended to evade at all.

When are you free to leave the police if you are being questioned, interrogated or detained?

People are often arrested for Evading Arrest when they were simply exercising their right to walk away from a police offer’s questions. Police officers will frequently tell people that they are “free to go” when they are being questioned. They might also tell you that you are being “detained.” So it is difficult to know when the police are trying to arrest you and when you have the right to leave the encounter.

If the police tell you that you are free to leave, you should not be arrested for Evading Arrest, but this happens anyway sometimes. However, if you are being “detained” or the officer tells you that you are being arrested, then the law says that you are not allowed to not free to go. If the arrest or detainer was unlawful, then you may ultimately not be convicted of the Evading Arrest offense, but the officer very well may arrest you at that particular time. In no case, however, is force allowed to be used to prevent the officer from arresting you unless it falls into the narrow category below.

What is the punishment for Resisting Arrest?

Resisting Arrest is a Class A Misdemeanor2 unless the state’s attorneys prove that a deadly weapon was used, in which case it is a third degree felony3.

What are the penalties for Evading Arrest?

Evading arrest is punishable, at a minimum, as a Class B Misdemeanor.4 What is a Class A Misdemeanor?

The punishment can be enhanced to an offense greater than a Class A Misdemeanor if a vehicle was used to flea the police, or if the person has been previously convicted for evading or if someone suffered a serious bodily injury or death as a result of the offense.


Legal References:
1 Texas Penal Code Section 38.03(b). But see Texas Penal Code Section 9.31(c).
2 Texas Penal Code Section 38.03(c)
3 Texas Penal Code Section 38.03(d)
4 Texas Penal Code Section 38.04(b)