I want to be absolutely clear about this: Do not resist arrest, even if the officer arresting you is acting unlawfully. Here in Texas, there are absolutely no circumstances in which physically resisting or evading arrest can benefit you. So, the answer to the title of this article is "no." No, you cannot resist an unlawful arrest. It will only make your situation worse.
No matter how unfair the situation is, it’s best to comply with an arrest warrant, then later have your lawyer handle it.
An arrest often consists of three steps.
When you’re arrested, whether that’s during a traffic stop, at your home, or at a bar, you’ll be:
- Handcuffed
- Searched
- Read your Miranda rights
It’s an upsetting, even painful, process. But as your arrest unfolds, it’s crucial to stay quiet and avoid actions that could be interpreted as resisting or evading.
Resisting arrest is an avoidable charge.
According to the Texas Penal Code, a person is resisting arrest if he “intentionally prevents or obstructs” an officer from performing an arrest by using force.¹
Use of force is a key part of the definition here. There’s no hard line between force and no force, so even small actions can be considered force depending on the circumstances.
Resisting arrest is a Class A misdemeanor in Texas and can be elevated to a felony if an individual uses a deadly weapon.
Lawfulness is irrelevant.
The code very clearly states that claiming an arrest is unlawful is not a viable defense against a resisting arrest charge.¹
Evading arrest is equally serious.
Next in the Texas Penal Code is evading arrest, which is when a person “intentionally flees”² an officer attempting an arrest or detention.
Evading is also a Class A misdemeanor, unless the person uses a vehicle to flee or someone gets injured as a result of the escape, in which case the charge will be upgraded to a felony.
Detention also qualifies you for evading arrest.
You can still get hit with an evading arrest charge even if an officer is only detaining you. If an officer stops your car to write you a ticket, you cannot try to flee, even if they aren’t placing you under arrest. Don’t do the following:
- run away on foot,
- drive off during a traffic stop, or
- delay or refuse to stop when an officer signals you to do so.
You can be charged with both resisting and evading.
For example, if you flee during a traffic stop and then physically struggle when they catch you, you can face two separate charges — on top of what the initial stop was for.
You cannot resist arrest in Texas.
This is the point I want to emphasize. In Texas, you cannot legally resist an arrest, even if it’s unlawful. If it is unlawful, you can dispute the arrest and related charge later, in court, with your defense attorney.
But nothing you say or do in the moment of arrest — other than complying — can benefit you.
Verbal disagreement is not resisting.
You cannot be charged with resisting or evading for asking questions or disagreeing with the police. Legally, you are allowed to dispute.
But arguing will not help you.
Other than saying you do not consent to a search and invoking your right to remain silent, you should not talk to officers. It can only make your situation worse.
Let’s look at some examples.
Should you pull away from an officer’s grip while they’re trying to handcuff you because you think your arrest is unfair?
No.
Should you refuse to put your hands behind your back because the officer isn’t giving you an explanation?
Also no.
And should you drive off because your traffic stop is not legitimate?
Definitely not.
I know how stressful an arrest can be. However, no matter how panicked you are, avoid taking any actions that could be perceived as resisting or evading arrest.
Fight your charge in court with a lawyer.
If you believe an officer is wrong to arrest you, the safest approach is simple: Do not resist. Do not flee.
Comply with commands, invoke your right to remain silent, and contact an attorney as soon as possible.
Ultimately, whether an arrest was lawful is a question for the court, not for officers. That means your lawyer may be able to get evidence suppressed or even get your charges dismissed entirely.
Let Gold Legal handle your defense.
At Gold Legal, PLLC, we challenge unlawful arrests.
If you’ve been charged with a crime in Texas, whether it includes resisting or evading arrest, contact us today.
— Kandi Gilder, Attorney at Law
References
- Texas Penal Code §38.03 (Texas 2023).
- Texas Penal Code §38.04 (Texas 2023).
