If you’ve been arrested or are being investigated for Evading Arrest or Detention in a Motor Vehicle in Texas—often called “felony evading”—you’re facing a serious felony charge with long-term consequences.
Most people don’t realize that:
- The base offense for evading in a vehicle is a Third-Degree Felony.
- This is true even for low-speed, short chases that last only a few seconds.
- The same charge applies to dangerous, high-speed pursuits involving multiple police units.
Whether your case lasted 30 seconds at low speed or 30 minutes at dangerous speeds, the statute treats both the same. The real difference comes in punishment and negotiation, and that’s where an experienced Houston criminal defense lawyer makes all the difference.
The Law: Texas Penal Code §38.04
Under Texas Penal Code § 38.04, a person commits the offense of Evading Arrest or Detention if they:
“Intentionally flee from a person they know is a peace officer or federal special investigator attempting lawfully to arrest or detain them.”
Two Main Categories of Evading
- Evading Arrest or Detention on Foot — Misdemeanor (Class A) for first offense, State Jail Felony if enhanced by prior evading conviction.
- Evading Arrest or Detention in a Motor Vehicle — Third-Degree Felony for first offense, enhanced to Second-Degree Felony if serious injury or death results.
Evading on Foot
- Class A misdemeanor (first offense)
- Up to 1 year in county jail
- Fine up to $4,000
- State Jail Felony (if previously convicted of evading on foot or certain other conditions)
- 180 days to 2 years in state jail
- Fine up to $10,000
Evading in a Motor Vehicle — Third-Degree Felony
- Punishment range:
- 2 to 10 years in prison (TDCJ)
- Fine up to $10,000
- Enhanced penalties:
- Second-Degree Felony (2 to 20 years) if someone suffers serious bodily injury or dies as a direct result
- Other enhancements possible for certain prior convictions or concurrent felony charges
The Same Law for Different Levels of Conduct
One of the biggest criticisms of the statute is that it doesn’t distinguish between:
- Someone who rolls away at low speed for 30 seconds before stopping.
- Someone who leads police on a reckless, 30-minute high-speed chase.
Both face a Third-Degree Felony charge under §38.04. The differences come during plea negotiations, sentencing, or trial arguments—not in the actual statute.
What the State Must Prove
For a conviction, prosecutors must show beyond a reasonable doubt that:
- You were operating a motor vehicle.
- You knew a person attempting to stop you was a peace officer or federal special investigator.
- The officer was lawfully attempting to arrest or detain you.
- You intentionally fled—not simply failed to stop out of confusion, fear, or safety concerns.
If any element is weak, your attorney can use that as leverage to negotiate or fight the case.
Consequences of a Felony Evading Conviction
- 2 to 10 years in prison for the base Third-Degree Felony
- Felony record for life, affecting employment, housing, and licenses
- Loss of certain civil rights (e.g., firearm possession)
- Driver’s license complications (especially if combined with other charges)
- Possible civil liability if property damage or injury occurred during the incident
Common Defenses in Evading Arrest Cases
- Mistaken Identity — Police must prove you were the driver. Poor lighting, tinted windows, or unclear video can help your case.
- No Intent to Flee — You may not have realized you were being stopped, or you may have been seeking a safe place to pull over.
- Unlawful Detention — If the officer had no legal reason to stop you, the entire case could be challenged.
- Emergency or Necessity — A legitimate emergency may justify immediate driving away, though this is a narrow defense.
- Insufficient Evidence — Weak dashcam/bodycam footage or conflicting accounts can undermine the State’s case.
How to Get an Evading in a Motor Vehicle Case Dismissed (Even If You Think You’re Guilty)
While no lawyer can promise a dismissal, these strategies are often used in Harris County and surrounding areas:
1. Reduction to a Misdemeanor
If the facts are relatively minor (short pursuit, no danger to others), your attorney may negotiate a reduction to a misdemeanor offense, such as Evading on Foot or Obstructing a Highway.
2. Pretrial Diversion
For first-time offenders, a diversion program may be available. You complete certain requirements—like community service, classes, or good behavior—and the case is dismissed.
3. Deferred Adjudication
You plead guilty, but no finding of guilt is entered. Complete probation, and the case is dismissed; you may be eligible for nondisclosure later.
4. Motion to Suppress Evidence
If the stop or arrest was unlawful, or if officers lacked probable cause, your lawyer may be able to have key evidence excluded, leading to dismissal.
5. Negotiated Pleas Using Mitigation
Strong mitigation (steady job, no criminal history, family obligations) can be used to negotiate reduced charges or probation.
Differences Between Evading on Foot and Evading in a Motor Vehicle
| Factor | On Foot (Class A) | In Motor Vehicle (3rd-Degree Felony) |
|---|---|---|
| Charge Level | Misdemeanor (first offense) | Felony (first offense) |
| Jail/Prison Time | Up to 1 year county | 2–10 years prison |
| Enhancement to Felony | Prior evading conviction → State Jail Felony | Injury/death → 2nd-Degree Felony |
| Collateral Consequences | Misdemeanor record | Felony record |
| Public Perception | Less severe | Viewed as more serious, even if low speed |
How Prosecutors View Felony Evading
District Attorneys consider:
- Speed and length of the pursuit
- Danger posed to the public
- Criminal history of the driver
- Whether anyone was injured or property was damaged
- Behavior after the stop (cooperative or combative)
The statute treats all motor vehicle evading as a felony, but prosecutors may be more lenient in short, low-risk cases—especially if your lawyer provides strong mitigating evidence.
Why Hire Attorney Eric Benavides for Felony Evading Cases
Eric Benavides, a seasoned Houston criminal defense lawyer, has represented numerous clients charged with Evading Arrest in a Motor Vehicle. His approach includes:
- Deep knowledge of Harris County court procedures and prosecutors’ priorities
- Proven track record of negotiating felony reductions to misdemeanors
- Aggressive use of motions to suppress when stops are questionable
- Building persuasive mitigation packets to secure better outcomes
- Experience handling both minor, short chases and high-profile pursuits
Frequently Asked Questions
Is evading in a motor vehicle always a felony?
Yes. The base offense is a Third-Degree Felony for a first-time motor vehicle evading case.
When is it a State Jail Felony?
State Jail Felony applies to enhanced misdemeanors, such as evading on foot with a prior evading conviction—not for first-time vehicle cases.
Can I avoid prison?
Yes, many first-time offenders receive probation, deferred adjudication, or reductions.
What if I just wanted to get to a safer location before stopping?
That can be part of a defense, but must be documented and supported by evidence.
Final Word
Evading Arrest in a Motor Vehicle is one of the few crimes in Texas where short, low-speed incidents are treated the same—under the law—as long, dangerous pursuits. The difference in your outcome depends on how your case is handled.
If you’ve been charged with felony evading in Houston or surrounding counties, call Attorney Eric Benavides immediately. Early, skilled representation can make the difference between prison and freedom, or between a felony conviction and a clean slate.