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What’s the Difference Between Evading and Resisting Arrest?

 

Evading Arrest vs. Resisting Arrest in Texas

When police officers in Texas make a traffic stop or approach a suspicious person, they may decide to make an arrest. They must have probable cause or reasonable suspicion to arrest, search or detain a person. However, the person being searched or detained is expected to comply with the instructions of the officer. This remains true even if that person believes that they are wrongfully being searched or detained.

Preventing a law enforcement officer from performing his or her duty when they are trying to make an arrest can result in criminal charges. Depending on the circumstances of the case, a person may be charged with evading arrest or resisting arrest. Although these charges share some similarities, they are usually applied in different situations. A closer examination will point out the differences and similarities between these two criminal offenses.

What is Evading Arrest?

If a police officer is trying to make a lawful arrest and the person being arrested flees the scene, they may be charged with evading arrest. This charge only applies if the officer is trying to arrest or detain the person. For example, if a person sees a police car in their neighborhood and runs away, they have not necessarily committed a crime. However, if they run away when an officer is trying to handcuff them or detain them for questioning, they may be breaking the law.

According to Section 38.04 of the Texas Penal Code, a person commits an offense if they attempt to flee from a peace officer who is attempting to detain them or place them under lawful arrest. This is a Class B misdemeanor offense if the person attempts to flee on foot. However, the charges can be enhanced in some cases.

For example:

  • Fleeing in a vehicle is a state jail felony
  • A person who flees in a vehicle and has a previous evasion conviction can be charged with a third degree felony
  • If a person is killed during the evasion attempt, a second degree felony charge can be filed
What Is Resisting Arrest?

Under Section 38.03 of the Texas Penal Code, resisting arrest is defined as any action taken by a person to prevent a peace officer from lawfully conducting a search or performing an arrest. It’s also a crime to try to prevent an officer from transporting a suspect.

For example, if an officer is trying to handcuff someone and that person refuses to place their hands behind their back, they may be charged with resisting arrest. It’s also a crime to use force to prevent an arrest. A person who pushes officers away during an arrest attempt can face elevated charges. There are two main degrees of resisting arrest:

  • Ordinary resisting arrest is a Class A misdemeanor
  • Resisting arrest by using a deadly weapon is a felony of the third degree
What’s The Difference?

These two criminal offenses are somewhat similar and they may both occur in one incident. For example, a person who flees from the police during an arrest attempt and then fights against being handcuffed may be charged with both resisting arrest and evading arrest.

The primary difference is the way in which a person behaves. Refusing to cooperate with officers while remaining at the scene is an example of resisting arrest while actually leaving the scene is classified as evasion.

The other big difference between these two charges is the way in which they are prosecuted. For example, a person who has been charged with evading arrest may try to claim that their arrest was unlawful. If they are successful, this is a legitimate defense to prosecution.

That’s not the case with resisting arrest. It’s illegal to resist any arrest, even if the person being arrested believes that they are being arrested illegally. They can still be convicted of resisting if the officer was making an illegal arrest.

Anyone who has been charged with resisting arrest or evading arrest can consult with a lawyer to discuss defense options. With the right kind of evidence, it may be possible to have resisting and evasion charges dropped or reduced in court.


Are you being charged with evading or resisting arrest? Allow attorney Matthew Sharp to navigate complex laws and protect your rights. Contact his office today at (713) 868-6100.

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