Evading Arrest in Texas: A Separate Charge That Often Rides Along With a DWI

What evading arrest is

Under Section 38.04 of the Texas Penal Code, a person commits evading arrest or detention if they intentionally flee from someone they know is a peace officer who is lawfully attempting to arrest or detain them. The key words are intentionally and lawfully. The flight must be knowing, you have to be aware an officer is trying to stop you, and the officer’s attempt to detain or arrest you must itself have been lawful. Both of those requirements create room to defend the charge.

How it gets attached to a DWI

Evading arrest commonly appears alongside a DWI in a specific situation: a driver who, for whatever reason, does not pull over promptly. Someone who continues driving for a stretch before stopping, perhaps looking for a safe place, perhaps not immediately noticing the lights, can find that the delay is charged as evading. What felt like a few extra seconds to the driver can be framed by the state as intentional flight, turning one charge into two. See the DWI traffic stop and how police prove a DWI.

Misdemeanor or felony: the facts decide

Evading arrest is unusual among the related offenses because its severity swings widely with the circumstances. Fleeing on foot, without aggravating factors, is generally a misdemeanor. But the offense level rises with the facts, and the use of a vehicle in the flight is a major factor that can push evading into felony territory. Prior history and any harm caused during the flight raise it further. This means an evading charge attached to a DWI, which by definition involves a vehicle, can be substantially more serious than the DWI itself. See DWI penalties by level.

The defense starts with the lawful-stop requirement

Because the offense requires that the officer was lawfully attempting to detain or arrest you, the defense to evading is tightly linked to the defense of the stop. If the officer lacked reasonable suspicion to pull you over, the attempted detention was not lawful, and that undercuts the evading charge along with the DWI. The other key question is intent: whether you actually knew an officer was signaling you to stop and chose to flee, as opposed to failing to notice or reasonably continuing to a safe stopping place. Both questions are real defenses. See the motion to suppress and the DWI defense framework.

How Deandra Grant Law handles it

The firm treats an evading charge as the serious add-on it can be, especially when a vehicle pushes it toward a felony. Managing Partner Deandra Grant and the team attack the lawfulness of the stop and the question of intent, defending the evading charge and the DWI together rather than in isolation. With more than 30 years and 500 trials behind the firm, a stacked charge is met with a strategy built to take both apart.

Frequently Asked Questions

What is evading arrest in Texas?

It is intentionally fleeing from a person you know is a peace officer who is lawfully attempting to detain or arrest you. The flight must be knowing, and the officer’s attempt to stop you must have been lawful.

Is evading arrest a felony in Texas?

It can be. Evading arrest is a misdemeanor or a felony depending on the facts, and the use of a vehicle in the flight is a major factor that can make it a felony. Prior history and any harm caused raise it further.

Why is evading arrest charged with a DWI?

It is often added when a driver does not pull over promptly. A delay in stopping, even one that felt brief or cautious to the driver, can be framed by the state as intentional flight, turning one charge into two.

Can I defend an evading arrest charge?

Yes. The offense requires that the officer’s attempt to detain you was lawful and that you intentionally fled. If the stop lacked reasonable suspicion, or if you did not knowingly flee, the charge can be challenged.

Does the stop have to be lawful for an evading charge to stick?

Yes. Evading requires a lawful attempt to arrest or detain. If the officer lacked a valid basis for the stop, the attempted detention was not lawful, which undercuts the evading charge along with the DWI.

Is evading arrest more serious than the DWI it comes with?

It can be. When a vehicle pushes evading into felony territory, the evading charge can be more serious than the underlying DWI, which is why a stacked case needs a defense aimed at both charges.

An Evading Charge Can Be More Serious Than the DWI It Rides With.

Because it requires a lawful stop and intentional flight, it is defensible, often on the same grounds as the DWI. Deandra Grant Law takes on stacked charges across Dallas, Fort Worth, North Texas, and Waco. Call (214) 225-7117 for a free, confidential consultation.

Related Offenses Topics

• Public Intoxication — A Class C charge that can still create a record.
• Open Container — Why an open bottle is its own Texas offense.
• Minor in Possession (MIP) — Penalties for a minor caught with alcohol.
• Obstruction of a Highway — A Class B offense sometimes offered in place of a DWI.