Resisting arrest refers to a situation in which a person interferes with law enforcement’s attempt to perform a lawful arrest. Some states refer to this as the crime of obstruction. Resisting arrest is generally defined as the use of any amount of physical force in order to prevent a police officer from arresting, handcuffing, and/or taking you to jail. It is important to note that even a small amount of force can be enough to constitute resisting arrest.
Resisting arrest is typically a misdemeanor crime. Resisting arrest typically accompanies other criminal charges. This means that in addition to any charges already being brought against you, resisting arrest could result in another charge being brought against you, which will result in adding more fines and possible jail time.
The California Penal Code makes it illegal to willfully delay, resist, or obstruct any emergency medical technician (“EMT”), police officer, or public officer. Specifically the crime of resisting arrest appears in California Penal Code Section 148(a). This section makes it illegal for any person to willfully resist, delay, or obstruct any public officer, peace officer, or emergency technician in the discharge or attempt to discharge any duty of their employment.
What Elements Does a Prosecutor Have to Prove to Convict an Individual of Resisting Arrest?
In order to convict a person of resisting arrest in California specifically, the prosecutor must prove:
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- The victim in the incident was a police officer, EMT, or public officer attempting to or lawfully performing official duties;
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- The defendant willfully delayed, obstructed, or resisted the victim in performance of their duties; and
- The defendant knew or reasonably should have known the victim was a peace office, EMT, or police officer attempting to or actually performing their duties.
In most states, you are no longer allowed to resist arrest even in instances of unlawful arrest. As such, it is imperative that you consult with an attorney as soon as possible.
The jury must decide that the prosecutor has proved every element of the crime beyond a reasonable doubt. While the specific elements vary from state to state, usually all must be true:
- The defendant intentionally resisted a police officer;
- The defendant acted violently or threatened the officer; or
- The police officer was lawfully discharging his official duties and properly conducting official duties.
The prosecutor must prove that the amount of resistance was sufficient as some type of physical violence or force by the defendant. And, at the time of arrest, that resistance interfered or obstructed the police officer to be unable to carry out their official duties.
Is Resisting Arrest The Same as Assaulting a Police Officer?
Resisting arrest is not generally considered to be the same as assaulting a police officer. Assault is an unrelated charge defined as an attempt to commit battery. Assaulting a police officer occurs when someone attempts to commit battery on a police officer, whether or not the officer is trying to make an arrest on that person; resisting arrest is trying to prevent the police officer from making a lawful arrest, or performing their work duties.
Assault is a crime that happens when someone physically harms or has the intention to harm another person. An actual injury does not necessarily need to be inflicted in order to be considered assault. Assault can still occur when a victim fears that they are going to get hurt by someone else that is threatening them.
Many states have a separate law on their books if the victim of an assault is a police officer, and the assault occurs while performing their duties as an officer. The states that do not recognize such a separate law often treat the assault of a law enforcement officer as an aggravating factor to an assault charge. Aggravating factors are what make a crime more serious. Courts typically hand out harsher penalties and punishments for this type of assault.
Assaulting a police officer and resisting arrest can both happen in the same incident. An example of this would be if a person is resisting arrest and assaults the arresting officer in their attempt to resist arrest.
What’s The Punishment for a Resisting Arrest Conviction in California?
In California, resisting arrest is charged as a misdemeanor crime. Criminal punishments for misdemeanor crimes can involve a mix of both jail time, as well as criminal fines. Jail sentences will usually carry a sentence of one year maximum in jail, which is to be served in a county jail facility, and not a state prison facility. Criminal fines are typically capped at $1,000, though again this can vary by state.
Consequences for criminal misdemeanor charges may also depend on the exact type of violation involved. An example of this would be how for a misdemeanor graffiti sentence, the defendant may be required to perform community clean up, and/or write a letter of apology to the affected property owner. Alternatively, punishments for drunk driving can involve mandatory DUI classes, such as traffic school, and other measures. These can be added on top of the fines and/or jail sentence.
California Penal Code, sections 243(c)(1) and (2), detail that battery committed on a peace officer or EMT while resisting arrest may be charged as either a misdemeanor or a felony. This will largely be determined by the facts of each specific case, as well as prior criminal history. If convicted of misdemeanor battery, the penalty is up to one year in county jail and a $2,000 maximum fine. If convicted of felony battery, the penalty is sixteen months, two, or three years in county jail. Additionally, there may be a maximum fine of $10,000.
Are There Any Defenses Against Resisting Arrest Charges in California?
Defendants that are charged with resisting arrest may utilize one or both of the following defenses. The requirements to prove the legal defenses listed below will vary from state to state.
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- Self-Defense: In California, a defendant charged with resisting arrest may be able to claim that the police officer was acting violently, and that the force that was used to perform the arrest was excessive. Simply put, if the defendant can prove that they were simply defending themselves from the excessive force being used by the officer, their resisting arrest charges may be dropped;
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- Unlawful Arrest: In California, a defendant may claim that the original arrest was unlawful, and the arrest was not authorized by law; and
- False Accusation: In California, a defendant charged with resisting arrest may show that the resisting arrest charges were actually a false accusation made by the officer. For example, the defendant may argue that they did not actually resist arrest, but the police officer felt disrespected and added the charge. In proving a false accusation, the defendant may seek to have the body cam or dash cam videos admitted into evidence, as well as the history of arrests and personnel record of the officer.
Should I Contact a Lawyer About Fighting My Resisting Arrest Charge in California?
If you are in California and are being accused of resisting arrest, you should immediately consult with a California criminal defense lawyer. It is important to note that you have legal rights, and an attorney will work to defend and protect those rights. An experienced and local criminal defense attorney will investigate your case and provide any available legal defenses, such as police brutality or unlawful arrest.
Additionally, an experienced and local attorney will also be aware of any state laws and local criminal codes that could affect the outcome of your case. Finally, a criminal defense attorney will also be able to represent you in court as needed, and ensure that any criminal penalties you receive are proportionate and fair to the circumstances of your case.
