Thank you in advance for assisting me with this question. I am preparing to take the TCLEOSE Basic Peace Officer Certification Test next month. I was in the midst of studying when this question arose:

In what type of situation would a suspect be charged with PC 38.04(b)(1) (Evading arrest or detention using a vehicle - state jail felony) versus TC 545.421(a) (Fleeing or attempting to elude police officer (using a vehicle) - Class B misdemeanor)? What is the difference between the two?

Under PC 38.04(d) it states "A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law". Why / why not charge with the higher charge (PC 38.04)?

Again, any assistance is greatly appreciated.

E. Githens

Take a look at Walker, 95 S.W.3d 516 if you can. It describes the difference between the two offenses. Presumably the State would always choose to charge the greater offense unless there were some reason to doubt the defendant would have known the person from whom he was fleeing was a peace officer, even though the State might often rely on the circumstances described in 545.421(b) to prove that element of the offense.

If you don't have access to Westlaw or a law library, send me your email and I will send you copy of the case Martin referenced. Good luck.