Man being stopped by police for DWI

Can Evading Arrest be Dismissed in Texas?

By Jose Ceja
Managing Attorney

Fleeing from the police is known in Texas as evading arrest with a motor vehicle and it is a commonly charged offense. Being charged with evading arrest with a motor vehicle can be a frightening experience as police officers will frequently conduct a “felony arrest” with guns drawn. Depending on the facts of your case, it is possible to get an evading arrest charge dismissed in Texas.

Under Texas Penal Code 38.04, a person commits the offense of evading arrest by intentionally fleeing from a person he knows is a police officer. Evading arrest with a motor vehicle is a third-degree felony punishable by 2-10 years and a $10,000 fine. It is possible to receive a regular probation or deferred probation for evading arrest.

One of the most important things to understand about evading arrest is that it has to be done intentionally. A surprising number of defendants who are charged with felony evading arrest did not intend to flee from the police and may have simply been distracted and unaware that a police officer was trying to stop you. The State of Texas has the burden of proving all the elements of an evading arrest case, including that it wasn’t a mistake. If prosecutors can’t prove that you fled intentionally, that could lead to the dismissal of the charges against you or possibly an acquittal at trial. 

How does a criminal defense attorney show that you did not intend to flee? Although it is impossible to know what was going through the mind of a defendant, the circumstances of the stop can sometimes show that a person would not have had a reason to flee from the police. Virtually all people who flee from the police in a vehicle accept the huge risks of running from the police because they believe that getting stopped is a worse option – either because they have an open warrant, drugs, or are carrying something else illegal.  By the same token, if people did not have a reason to flee, then it stands to reason that they would not have had the intent to flee, and only fled from the police unintentionally. 

Similarly, other factors, such as a defendant’s driving, can also be evidence of a lack of intent to flee. When a driver intends to evade the police, he will drive as evasively as possible and try to lose the police by driving very fast, or making frequent turns. On the other hand, when a driver is simply unaware that the police are trying to stop him, his speed will be more constant and he will not drive evasively. 

A criminal defense attorney can get creative with showing intent. For example, it may be possible to use a polygraph examination to show that a person did not intend to flee the police. If the facts are right, one tool to consider using is a Grand Jury packet, which can be a means to get a felony evading arrest in a motor vehicle case dismissed.

Our office recently represented a young man with no criminal history who has a tech job in the Houston area. He was out of town and got called into work and drove through a rural Texas county. He was allegedly speeding and an officer attempted to pull him over. But he was so engrossed in a podcast, that he did not hear the officer or see his sirens for several miles. He was arrested and charged with evading arrest in a motor vehicle. Ceja Law Firm was able to negotiate a dismissal of the evading arrest case even before he went to court by being proactive and convincing the prosecutor that he had no intent to flee from the police.  

Depending on the facts and on the county, it is sometimes possible to obtain a pre-trial diversion in an evading arrest case. A pre-trial diversion is an agreement with the State of Texas that a case will be dismissed if certain conditions are met (the conditions can be similar to probation). 

An experienced criminal defense lawyer can go over all potential options to get your evading arrest case dismissed. If your case is dismissed, you will likely be eligible to have your records expunged, which results in the destruction of all records relating to your arrest and basically puts you back in the position you were before the incident. If you have been charged with evading arrest anywhere in the Greater Houston area, call Ceja Law Firm today.

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.