Evading Arrest in Vehicle Attorney Austin | ATX Legal
Austin Resisting Arrest Lawyer | ATX Legal
A resisting arrest charge is sometimes justified, but often it is charged when the police officers cannot prove anything else. Experienced criminal defense lawyers can often get these charges dismissed without a trial. Especially in Travis County, the prosecutors are not usually anxious to press resisting arrest charges forward.
Still, it’s important to take resisting arrest charges seriously. If you or a loved one is charged with misdemeanor or felony resisting arrest, you should fill out a contact form for a free consultation with an experienced defense attorney.

Understanding Resisting Arrest in Texas
Resisting arrest is a serious offense in Texas, and it’s essential to understand the laws and consequences surrounding it. According to Section 38.03 of the Texas Penal Code, a person commits resisting arrest when an individual intentionally uses force to prevent or obstruct a peace officer from making an arrest, conducting a search, or transporting them. This law applies even if the arrest or search was unlawful. Resisting arrest can result in additional criminal charges with more severe consequences than the original reason for arrest.
When Can a Law Enforcement Officer Charge Me with Resisting Arrest?
Under the Texas Penal Code Section 38.03, a person can be charged with resisting arrest if they intentionally prevent or obstruct a person who they know is a peace officer or someone performing a function of a peace officer from effectuating an arrest, search, or transportation. Under Texas Penal Code Section 38.04, ‘evading arrest or detention’ is defined as intentionally fleeing from a person they know is a peace officer attempting to lawfully arrest or detain them. Failure to comply with a law enforcement officers’ commands can also lead to a charge of resisting arrest.
Differences Between Evading Arrest and Resisting Arrest
While evading arrest and resisting arrest are related offenses, they have distinct differences. Evading arrest involves fleeing from a law enforcement officer without coming into contact with them, whereas resisting arrest involves interaction with an arresting officer in order to subvert their intention to arrest. One charge does not preclude the other, so you can be charged with both evading and resisting arrest. Understanding the differences between these two offenses is crucial in building a strong defense.
What Does the Prosecutor Need to Prove in a Resisting Arrest Case?
To be found guilty of resisting arrest, the prosecutor must prove all elements beyond a reasonable doubt. First, the individual being charged must have intentionally resisted, obstructed, or prevented a law enforcement officer’s attempt to carry out a lawful arrest or detention. This implies a conscious effort to oppose or hinder the arrest.
Second, the individual must have been aware that the person they were resisting was indeed a peace officer, or someone acting under a peace officer’s official authority, carrying out their lawful duties.
This means the police officer was performing an action within their jurisdiction and the scope of their duty, such as making a lawful arrest or executing a valid court order.
Lastly, the police officer involved must have been acting lawfully at the time of the alleged resistance. If the arrest or detention was unlawful, then the charge of resisting arrest may not stand. However, it’s crucial to note that the specifics of what constitutes a lawful arrest can be complex and varies from jurisdiction to jurisdiction.
Always consult with a qualified criminal defense attorney if charged with resisting arrest to understand the laws specific to your location and situation.
Non-Physical Acts, Threats, or Refusals to Obey Orders
While physical acts of resistance against a police officer are the most common form of resisting arrest, it’s important to note that non-physical passive resistance such as threats or refusals to obey orders can also constitute resisting arrest.
For example, if someone refuses to comply with a police officer regarding a lawful order to stand still or show their hands during a stop and frisk, this could be considered resisting arrest.
Defending Against A Resisting Arrest Charge
Defenses against a resisting arrest charge often hinge on whether the law enforcement official was acting lawfully at the time and if the defendant was aware they were resisting a lawful procedure. To contest such a charge, an individual might assert the following defenses:
Unlawful Arrest: This is the most common defense. If the initial arrest was not lawful, the person cannot be charged with resisting that arrest, since they can resist arrest that is unlawful. This is difficult to prove in practice.
Self-Defense: If the police officer used excessive force during the arrest, the defendant might have been simply defending themselves from harm. This defense requires establishing that the officer’s use of force was unreasonable under the circumstances.
If the defendant was not aware they were resisting a peace officer, they could use this as a defense against resisting arrest. For instance, if the officer was not in uniform and did not identify themselves as a law enforcement agent, the defendant should not be found guilty of resisting arrest.
False Accusation: Sometimes, a defendant may claim that they have been falsely accused of resist arrest. This usually happens in cases where there are no witnesses to the arrest apart from the arresting law enforcement officers.
Each of these defenses is fact-specific and requires thorough analysis of the circumstances surrounding the arrest. It’s critical to consult with a criminal defense attorney who can guide you through the complexities of your case. An experienced defense attorney can build a strong defense, protect your rights, and seek a favorable resolution based on the specifics of your situation.
Penalties for Resisting Arrest
The penalties for resisting arrest in Texas can be severe. Resisting arrest is a Class A misdemeanor, carrying fines up to $4,000 and a prison term of up to a year. If the resistance was done with a deadly weapon, the offense is considered a third-degree felony, carrying a prison sentence of two to 10 years and a fine of up to $10,000. It’s essential to seek the guidance of an experienced criminal defense lawyer to navigate the complexities of resisting arrest charges.
Felony Resisting Arrest Charges
In Texas, resisting arrest is typically classified as a misdemeanor. However, the charge can escalate to a felony under certain conditions. Texas Penal Code Section 38.03 defines resisting arrest, search, or transportation.
A person is guilty of a felony charge if the individual uses a deadly or dangerous weapon to resist the peace officers’ arrest or search. A deadly weapon refers to anything that is designed, made, or adapted for the purpose of inflicting death or serious bodily injury. It could include firearms, knives, or even certain types of vehicles.
If a person causes death while fleeing from law enforcement, they may face charges as a second-degree felony, which incurs significant prison time and fines.
A person convicted of this third-degree felony, an individual could face between 2 to 10 years in a state prison and/or a fine up to $10,000. Always consult with a Texas criminal defense attorney to understand the nuances of the law and potential defenses if facing such charges.
Misdemeanor Resisting Arrest
In Texas, as per the Texas Penal Code Section 38.03, the typical misdemeanor resisting arrest charge is classified as a Class A. Individuals convicted of a Class A misdemeanor offense can face penalties which may include up to one year in county jail and/or a fine not exceeding $4,000.
The specific penalties for resisting arrest can vary based on the court’s discretion, the individual’s prior criminal history, and the specifics of the case. Having a prior conviction can elevate a misdemeanor charge to a felony, leading to more severe penalties such as longer prison sentences or higher fines.
It’s also essential to remember that a conviction may have far-reaching consequences beyond the immediate legal penalties, including potential difficulties in securing employment or housing due to a criminal record. Therefore, it is advised to seek professional legal counsel if facing such charges.
What to Expect During the Legal Process
If you’re facing resisting arrest charges, it’s essential to understand what to expect during the legal process. The first step is to seek the guidance of an experienced criminal defense lawyer who can provide guidance and representation throughout the process. Your lawyer will help you understand your rights and options, investigate the circumstances surrounding your arrest, and build a strong defense. The goal is to minimize the consequences of any arrest or charge. With the right representation, you can increase your chances of a favorable outcome.
Resisting Arrest FAQs
Does Resisting Arrest Conviction Mean Jail Time?
A conviction for resisting arrest can lead to county jail time. If it’s a Class A misdemeanor, it can result in up to one year in county jail. If a deadly weapon was used and the charge escalates to a third-degree felony, the individual could face between 2 to 10 years in a state prison. This doesn’t mean jail time is likely in the majority of cases, but there is a substantial risk if charged with a felony. In Texas, evading arrest can escalate from a misdemeanor to a state jail felony, depending on the circumstances, which can result in penalties and jail time.
Can I be charged with Resisting even though there is no underlying charge?
Yes, you can be charged with resisting arrest even if there’s no underlying charge. The act of using physical force to resist against an arresting officer, regardless of the legality of the arrest, can lead to a separate charge of resisting arrest.
What is Unlawful Arrest?
Unlawful arrest (aka illegal arrest) refers to an arrest that is made when the arresting officer acts without probable cause or without a proper arrest warrant against the arrested person. It means that the law enforcement officer has acted outside of their lawful authority.
Don’t I Have the Right to Resist Unreasonable or Excessive Force?
While every situation is unique, generally, individuals have a right to resist unlawful arrests or excessive force. However, it’s important to consult with a legal advisor for case-specific advice because your opinion on what is reasonable force might not be in-line with case-law.
Should I Sue the Police for Excessive Force?
It’s important to recognize that the civil and criminal case are separate proceedings. Usually I recommend to handle criminal charges first. However, there are exceptions to every rule. If you believe that excessive force was used during your arrest and you have a serious physical injury, it may be possible to take legal action against the police.
These cases can be complex and require substantial evidence. Therefore, it is strongly recommended to consult with a lawyer before proceeding with such action.
Our Experienced Criminal Defense Lawyer Can Help
If you have been charged with resisting arrest or believe that excessive force was used during your arrest, our experienced criminal defense lawyer can help. If a person intentionally flees from law enforcement officers attempting to make a lawful arrest or detention, it constitutes an offense under the Texas Penal Code, which can lead to various degrees of charges and penalties depending on the situation. Attorney Rob Chesnutt understands the complexities of resisting arrest cases and will work to protect your rights and defend your case.
We will thoroughly investigate the circumstances surrounding your resist arrest case and gather evidence to support your defense. Our goal is to provide you with the best possible