If the police unexpectedly pull you over, it can be a scary incident for many people, particularly if the police have never pulled you over before. Unfortunately, if you don't pull over as soon as it's safe to do so, the police may think you're attempting to evade them. If that stop leads to a DWI, you could face more serious penalties if the police also charge you with attempting to evade arrest. In Harris County and throughout Texas, many people face DWI charges every year. But arrests that lead to DWI or evading arrest charges aren't convictions in a court of law. An experienced Houston DWI attorney can help you develop your best options to defend yourself.
What is a DWI in Texas?
Texas law defines a DWI as operating a vehicle in a public area when:
- Your BAC is .08% or higher, or
- You don't have the normal use of your physical or mental faculties.
The high BAC or lack of normal use of your faculties must be because of the use of alcohol, a controlled substance, a dangerous drug, or a combination of these. As a result of the Texas definition of driving while intoxicated, the police can charge you with a DWI even if your BAC is lower than the legal limit of .08% based on your behavior.
A DWI stop in Texas typically involves:
- A traffic stop,
- Some interaction with the police,
- A field sobriety test,
- A BAC test, and then
- A DWI arrest.
However, if you attempt to evade the police when they try to pull you over, or if the police believe you were attempting to evade them, your DWI stop could follow a very different pattern. If the police believe you evaded them, when you do pull over, they may arrest you and then obtain a warrant for BAC testing, skipping the interim steps. The police could well believe they have probable cause for a DWI arrest based on your alleged “evasion” and failure to pull over.
What is Evading Arrest in Texas?
If a Houston police officer attempts to pull you over, you must pull over at the closest safe location. Under Texas Penal Code § 38.034, you may be “evading arrest or detention” if you “intentionally flee[…] from a person [you] know is a peace officer attempting to lawfully arrest or detain” you. Typically, this crime is a Class A misdemeanor, punishable by up to one year in jail and a $10,000 fine. However, it's a state jail felony if you're using a vehicle at the time, which can result in 180 days to two years in jail and up to a $10,000 fine.
If you have a previous conviction for evading arrest or if you seriously injure someone during your alleged flight, you could face a third-degree felony, punishable by two to ten years in jail and a $10,000 fine. Evading arrest is a second-degree felony under the penal code if someone dies during your alleged flight, punishable by two to twenty years in prison and a fine of up to $20,000.
The Texas Transportation Code also defines evading arrest. Under § 545.421, someone is evading arrest “[i]f 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.” The Texas Transportation Code offense is a misdemeanor. However, the police can charge you with the crime under the transportation or penal code, or both. You could also face charges of resisting arrest and “hindering apprehension or prosecution.”
Unintentionally Evading Arrest
While intentionally evading arrest is a serious crime in Texas, it can be easy not to see the flashing lights and sirens. If your music is loud, it could easily drown out the sound. If you're driving in heavy traffic, it can be easy to miss flashing lights while you're concentrating on your driving. Finally, if the road is dark or unsafe, you may slow down, signal that you're getting over, and continue driving until you find a safe location to stop. However, sometimes the police may misinterpret your intentions. A good example of this is the Arkansas woman who had her car flipped by a police officer when she failed to pull over and stop in a construction zone with no shoulder.
To prove an evading arrest case, the prosecution must show:
- You Intended to Evade Arrest: The state must prove that you intended to evade arrest. If you made a mistake, didn't hear sirens, the police car wasn't marked or easily identified, or if you were looking for a safe place to stop, the state might not have enough to convict you of evading police. Failure to pull over because of a reasonable mistake doesn't qualify as evading arrest.
- The Police Lawfully Arrested You: Before the police attempt to pull you over for any reason, they must have “reasonable suspicion” to believe you committed a crime. “Reasonable suspicion” means that an objective person would believe you committed a crime based on the facts and circumstances. Committing a traffic violation typically gives the police reasonable suspicion to pull you over. However, if you ultimately end up with only a charge for evading arrest, your attorney may have a good chance to show the police didn't have reasonable suspicion to stop you in the first place. Without reasonable suspicion, your arrest isn't lawful.
Hire an Expert in Texas DWI Defense
If you're facing charges of evading arrest, resisting arrest, or hindering apprehension or prosecution, as well as a DWI, it's time to bring in the professionals. These charges are complex criminal charges, and you need an expert in DWI defense and criminal law. Attorney Doug Murphy is Board Certified in both Criminal Defense Law and DWI Defense, making him an expert in these two specialties. Moreover, Doug is one of only two Texas attorneys Board Certified in both criminal defense and DWI defense.
It's important to remember that you are innocent until proven guilty, and you can defense these charges. Doug has decades of experience handling complex DWI and criminal cases. The Houston press referred to Doug as “the drinking driver's best friend.” Doug is also the 2021 Houston Lawyer of the Year for DWI defense. Contact the Doug Murphy Law Firm, P.C. online or call 713-229-8333 to schedule your consultation.