If you are facing allegations of Evading Arrest while Driving While Intoxicated (DWI), you are certainly very worried—and rightly so. While Evading Arrest (without alleged use a motor vehicle) alone can be a misdemeanor with relatively light penalties, when paired with DWI, it can be classed as a felony with severe penalties.
The type of charge and penalties you are facing will primarily depend on the circumstances of your arrest, including if you attempted to evade capture on foot or while driving a car. Regardless, Evading Arrest is a serious charge, and it is essential that you talk with an experienced and double board certified criminal defense and DWI attorney like Doug Murphy. He can advise you and help you build your defense.
What is Evading Arrest in Texas?
A person could be arrested for Evading Arrest if they attempted to avoid being arrested or detained by law enforcement officers. Perhaps the person was deliberately trying to get away from officers or was unaware that the police were attempting to detain them, or were hoping the police were following someone else.
It is often the case that police will charge someone with DWI and Evading Arrest if an intoxicated person is alleged to have tried to flee from the police officer in their car after the officer turned on police lights and sirens and asked the driver to pull over to the side of a roadway.
DWI with Resisting Arrest or Evading Arrest
It happens fairly often that officers allege an individual who is under the influence of alcohol or drugs will flee from police officers to avoid arrest. When officers apprehend the person, officers are likely to arrest the person for both DWI and add a charge for Evading or Resisting Arrest. Though the person does need to have intentionally tried to avoid arrest to be charged with Evading Arrest, being unaware or impaired because of drugs or alcohol does not eliminate the driver's intent to flee from police. A driver whose inebriation led them to make the unfortunate decision of evading police can still be held accountable for that decision.
Charges of DWI and Resisting or Evading Arrest are difficult and complicated to defend. You need an experienced criminal defense attorney like Doug Murphy to ensure that you have a strong defense.
What Does Texas Law Say About Evading Arrest?
Texas Penal Code Section 38.034 states the following:
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle 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 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 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 from whom the actor is fleeing to apprehend the actor while the actor is in flight.
Interestingly, a charge of Evading Arrest requires that the officer's detention attempt is itself lawful. However, someone can be arrested and convicted of Resisting Arrest even if the attempted arrest was unlawful.
There are severe penalties for Resisting Arrest and Evading Arrest in Texas. First offense Resisting Arrest is a Class A misdemeanor, punishable up to one year in jail and/or a fine of no more than $4,000.
First offense Evading Arrest is a Class B misdemeanor, punishable by confinement in jail for a term not to exceed 180 days, a fine of up to $2,000, or both. However, both the penalties for Resisting Arrest and Evading Arrest may be enhanced based on the circumstances of the case. Penalties can be more considerable if someone has prior convictions for Resisting Arrest or Evading Arrest or if someone suffers a serious bodily injury in the course of events.
In addition, the penalties for Evading Arrest can differ based on the method of evasion. Fleeing from a law enforcement officer on foot is a Class A misdemeanor, punishable by up to one year in jail and a fine for no more than $4,000. But if someone used a vehicle to try to evade a police officer, the charge and potential penalties will be more severe. Evading in a vehicle is a third-degree felony, which has penalties of between two and twenty years in prison and a maximum fine of $10,000.
What Does Texas Law Say About DWI?
Chapter 46 Section 6 of the Texas Penal code contains Texas' laws on Driving While Intoxicated and states that a person can be charged with DWI if they are operating a motor vehicle in a public place while intoxicated. This means that someone can be arrested for DWI even if the person's blood-alcohol level is under the legal limit of 0.08.
There is a separate criminal offense in Section 545.421 of the Texas Transportation Code that says in part:
(a) A person commits an offense if the person 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.
(b) A signal under this section that is given by a police officer pursuing a vehicle may be by hand, voice, emergency light, or siren. The officer giving the signal must be in uniform and prominently display the officer's badge of office. The officer's vehicle must be appropriately marked as an official police vehicle.
(c) Except as provided by Subsection (d), an offense under this section is a Class B misdemeanor.
(d) An offense under this section is a Class A misdemeanor if the person, during the commission of the offense, recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(e) A person is presumed to have recklessly engaged in conduct placing another in imminent danger of serious bodily injury under Subsection (d) if the person while intoxicated knowingly operated a motor vehicle during the commission of the offense.
This means that an intoxicated person who attempts to flee a law enforcement officer can be prosecuted under either, or both, of these statutes. Someone accused of having fled from the police could face charges of felony Evading Arrest, or “Evading with a Motor Vehicle.”
Some Defenses to Evading Arrest
For an Evading Arrest charge to stick, someone must have intentionally fled a peace officer who was lawfully trying to arrest or detain them. Also, the person must have known that the officer was a peace officer and that the officer was attempting to make a lawful arrest. If any of these details are in question, that may provide a defense to the charges.
If the officer was not a peace officer, the individual might be able to use that as a defense. There are many ways to define “peace officer.” A peace officer could be a police officer, a state trooper, or a sheriff's deputy. A peace officer could also be a park ranger. Some might even say that a security guard is a peace officer.
It can also be a defense to these charges if the peace officer was not trying to “lawfully arrest or detain” you or if you were not intentionally evading an arrest. Intending to evade means that you were aware of your actions and decided to flee or escape. Therefore, accidentally evading arrest because you did not know what was happening could be a defense.
Likewise, if you did not know the person trying to arrest you was a peace officer, because the person was not in uniform, did not show a badge, or otherwise was not easily identifiable, that could also be a defense.
Help is Here
Regardless of the circumstances of your case, DWI with Evading or Resisting Arrest is a very serious matter. Your future is at stake. It would help if you had someone who understands these legal issues and has experience representing people in the same situation you're in now. Doug Murphy will fight for your rights, make sure you have full access to everything you are entitled to, and help secure your freedom, regardless of the facts of your case.
You are facing very serious charges, with severe repercussions. Not handling this right could lead to prison time and steep fines. But, with experienced, knowledgeable, effective representation, you can put your life back on track and put this unfortunate situation behind you. Contact Board Certified Criminal Defense and DWI Attorney Doug Murphy today.