When a person is stopped by a law enforcement officer for a suspected driving while intoxicated (DWI) offense, many innocent people can immediately become adamant that they are not in violation of the law and decline to cooperate with any police procedures. Failure to abide by requests from law enforcement can be a bad decision because a person could face charges for resisting arrest or evading arrest, and a DWI and resisting arrest attorney immediately becomes a critical need.
Resisting arrest and evading arrest are actually two separate criminal offenses. People charged with this crime often face many other accompanying charges, such as an underlying DWI crime, possession of controlled substances, or unlawful possession of a firearm.
DWI and Resisting Arrest Defense Lawyer in Plano, Allen, Frisco, and McKinney, TX
Were you arrested for resisting arrest or evading arrest in connection with a DWI stop? Contact the Law Offices of Richard C. McConathy today at (469) 304-3422 for a consultation about your alleged offense in Plano, Allen, Frisco, McKinney, TX, and surrounding areas of Collin County, Texas. A criminal defense attorney will be important for helping you overcome the possible serious penalties of a conviction.
The Law Offices of Richard C. McConathy understand why people can become indigent about DWI stops and can work to ensure that you can avoid the costly consequences of criminal convictions. Contact us online for a free consultation so our firm can dig deeper into your case and better understand exactly what kind of issues you are dealing with.
Resisting Arrest vs. Evading Arrest
Under Texas Penal Code § 38.03(a), a person commits a resisting arrest offense if they intentionally prevent or obstruct a person they know is a peace officer or a person acting in a peace officer’s presence and at their direction from effecting an arrest, search, or transportation of the alleged offender or another party by using force against the peace officer or another party. Texas Penal Code § 38.03(b) establishes that it is not a defense to prosecution that the arrest or search was unlawful.
Resisting arrest is a Class A misdemeanor but becomes a third-degree felony if the alleged offender uses a deadly weapon to resist the arrest or search. Contrast this state law with Texas Penal Code § 38.04, which states that a person commits an evading arrest offense if they intentionally flee from a person they know is a peace officer or special federal investigator attempting lawfully to arrest or detain them.
An evading arrest offense is a Class A misdemeanor, except that the offense becomes a state jail felony when an alleged offender has been previously convicted of this crime. It is a third-degree felony if the alleged offender uses a vehicle while they are in flight, another party suffers serious bodily injury as a direct result of an attempt by the officer from whom the alleged offender is fleeing to apprehend the alleged offender while they are in flight, or the alleged offender uses a tire deflation device against the officer while they are in flight.
The crime is a second-degree felony if another party suffers death as a direct result of an attempt by the officer from whom the alleged offender is fleeing to apprehend them while they are in flight, or another party suffers serious bodily injury as a direct result of the alleged offender’s use of a tire deflation device while they are in flight.
A vehicle is defined under Texas Transportation Code § 541.201 as meaning a device that can be used to transport or draw persons or property on a highway, although the term does not include a device exclusively used on stationary rails or tracks or manufactured housing as that term is defined by Chapter 1201 of the Texas Occupations Code. Texas Penal Code § 46.01 defines a tire deflation device as being a device, including a caltrop or spike strip, that, when driven over, impedes or stops the movement of a wheeled vehicle by puncturing one or more of the vehicle’s tires, although the term does not include a traffic control device that is designed to puncture one or more of a vehicle’s tires when driven over in a specific direction; and has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns motor vehicle operators of the traffic control device.
Watercraft is defined under Texas Penal Code § 49.01 as being a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
DWI and Resisting Arrest Penalties
The possible penalties for resisting arrest or evading arrest convictions can vary depending on how the crime was classified. In general, the possible penalties could include:
- Class A misdemeanor — Up to one year in jail and/or fine of up to $4,000
- Third-Degree Felony — Up to 10 years in prison and/or fine of up to $10,000
- Second-Degree Felony — Up to 20 years in prison and/or fine of up to $10,000
Chapter 724 of the Texas Transportation Code is the state law concerning implied consent, and Texas Transportation Code § 724.011 establishes that when a person is arrested for an offense arising out of acts alleged to have been committed while they were operating a motor vehicle in a public place, or a watercraft, while intoxicated, that person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance. Police officers thus have reason to believe that all people they stop for DWI offenses will comply with requests for alcohol testing.
That said, there is no state law compelling people to comply with requests for field sobriety tests, which are a battery of tests used by police officers to determine if a person may be intoxicated. You are lawfully allowed to decline to perform these tests.
It is important to remember that Texas Penal Code § 9.31(c) establishes that the use of force to resist an arrest or search will be justified when, before an alleged offender offers any resistance, the peace officer (or person acting at their direction) uses or attempts to use greater force than necessary to make the arrest or search, and to the degree, the alleged offender reasonably believes the force is immediately necessary to protect themselves against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
Collin County DWI and Resisting Arrest Resources
State v. Mayorga, 901 S.W.2d 943 (Tex. Crim. App. 1995) — Haydee Mayorga was charged with resisting arrest, the trial court granted his motion to suppress, and the state appealed the trial court’s order. The Fifth Court of Appeals reversed and remanded the cause for further proceedings, but Mayorga filed a petition for discretionary review, contending in her sole ground for review that Texas Code of Criminal Procedure § 38.23 requires suppression of evidence of resisting arrest when the defendant has been illegally arrested. On July 20, 1991, Mayorga was involved in a minor traffic accident in front of her home, two police officers received information that there were outstanding warrants for her arrest, and informed her that she would have to accompany them to the jail, although the officers later realized there were no outstanding warrants for her arrest and the charges relating to the outstanding warrants were dropped although Mayorga was charged with resisting arrest. The Court of Criminal Appeals of Texas ruled that because the court of appeals did not address Ford v. State, 538 S.W.2d 633, 635 (Tex.Cr.App.1976) or Barnett v. State, 615 S.W.2d 220, 223 (Tex.Cr.App.1981), and did not have the benefit of Arizona v. Evans, ___ U.S. ___, ___, 115 S.Ct. 1185, 1188, 131 L.Ed.2d 34 (1995), at the time of its decision, it remanded the cause to the court of appeals for consideration in light of these opinions.
Leos v. State, 880 S.W.2d 180 (Tex. App. 1994) — In 1992, Officer Walter Landrum of the Victoria Police Department arrived at Christopher Casanova Leos’ home in response to reports of a disturbance and an allegation of criminal mischief. Officer Landrum knew Leos and initially approached him merely to discuss these reports. Remembering that Leos carried a weapon in the past, Officer Landrum was cautious. “You are not under arrest,” the officer said, “but for my safety I need to [pat] you down to make sure you have no weapons at all.” Leos had begun to allow the frisk but then turned around and pushed Officer Landrum away, saying, “I am not going to go to jail.” Only then did Officer Landrum tell Leos that he was under arrest. Leos ran toward the house, but Officer Landrum was faster and prevented his escape. Leos was charged with and eventually convicted of resisting arrest and criminal mischief. His appeal did not contest the underlying conviction for criminal mischief. The Court of Appeals of Texas in Corpus Christi ruled that no rational trier of fact would have found Leos guilty beyond doubt of using force against the peace officer and sustained Leos’ sole point of error, reversing the conviction and rendering a judgment of not guilty.
Find A Collin County Attorney for DWI and Resisting Arrest Charges | Law Offices of Richard C. McConathy
Were you arrested for resisting arrest or evading arrest after a DWI stop in Collin County? Do not wait another moment to get yourself a criminal defense lawyer.
Call (469) 304-3422 or contact the Law Offices of Richard C. McConathy today for a consultation about your alleged offense in Plano, Allen, Frisco, McKinney, TX, and surrounding areas of Collin County, Texas. We can then better understand the nature of your charges and also examine your possible defense options.