9 Things You Didn’t Know About Resisting Arrest

Penal Code 148(a)(1)

Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

How Does the Prosecutor Prove “Resisting Arrest”?

To prove that the defendant is guilty of this offense, the prosecutor has to prove the following facts or elements1

  • The defendant willfully resisted, obstructed, or delayed2;
  • A person who was a peace officer3 officer/public officer/emergency medical technician4 lawfully performing5 or attempting to perform his/her duties as a peace officer/public officer/emergency medical technician;
  • When the defendant acted, he/she knew, or reasonably should have known, that the person whom he/she resisted was a peace officer/public officer/emergency medical technician performing or attempting to perform his/her duties.
Example
  • If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully resisted and/or obstructed and/or delayed the officer if all the other requirements are met as set forth above.
  • Struggling with a police officer while he/she is trying to arrest you.
  • Providing a false name and/or other personal information when a police officer asks you to provide information about a crime.
  • Asking an officer to loosen his/her grip to avoid pain or to move your hand position to avoid feeling pain from handcuffs is not considered resistance.

Who Can Be Charged With Resisting Arrest Under California Law?

Any person can be charged with the offense under Penal Code 148(a)(1) PC as long as he/or she has committed at least one of the acts described in the offense (i.e. resisting, obstructing, or delaying) and the act was committed against a peace officer/public officer/emergency medical technician.

Example

You have been speeding on the highway and an officer pulls over your vehicle.  After some questions by the police officer he attempts to search your vehichle. You protest the search believeing its not warranted and the police officer threatens to arrest you if you do not sit calmly.  You continue to assert your rights and the police officer attempts to arrest you but you refuse to be handcuffed.  Under this scenerio you would be resisting arrest under california law.

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How Can You Fight a Charge of Resisting Arrest?

Defenses to a charge of resisting arrest are based on the facts and circumstances of each case. There are defenses that are common to this particular offense:

Unlawful Arrest

There are numerous occasions when police have engaged in unlawful conduct in detaining or arresting persons. If you were unlawfully arrested, then the police actions were unlawful and you have every right to resist since the officer was not engaged in the lawful performance of his or her duties or acting in his or her official capacity.

Examples of unlawful or illegal police activity include:

  • Executing a search warrant based on facts known to be false
  • Entering a home or business without a search warrant or consent
  • Arresting someone without probable cause or an arrest warrant if one is needed
  • Racial profiling in detaining someone and then arresting them
  • Using excessive or unreasonable force

It is not unusual for police to enter a residence where they suspect drugs or contraband may be found and search the area without a search warrant and then assert that the defendant gave consent when evidence is found and the defendant placed under arrest.

A lawful arrest can only be made pursuant to an arrest warrant if the crime was not observed by the officer or if based upon probable cause. In many urban areas, police have and continue to use racial profiling to stop and question persons of certain ethnic or racial origins and then arrest them without probable cause to do so

Probable cause for an arrest is found when a reasonable and cautious police officer believes that criminal activity is or has taken place. Police must point to objective circumstances leading them to believe that a suspect has committed a crime before arresting them.

It is different if police wish to detain someone. In these cases, an officer has probable cause to detain but not arrest the person if he or she has a reasonable suspicion that the person may be involved in criminal activity. So if the officer cannot articulate certain facts or circumstances that would lead a reasonable officer to believe a crime has or is about to take place, then an arrest may be unlawful.

Self Defense

Self-defense is often used as a defense in assault, manslaughter or murder cases. If a police officer is using excessive or unreasonable force against you, then you have every right to fight back or to resist. There are certain standards or restrictions on how much force you may use and when you must back off:

  • You may use no more force than you believed was necessary to protect yourself and
  • You used no more force than a reasonable person under similar circumstances would have believed was necessary to protect yourself

Self-defense in this context may only be used if the police action was initially illegal. If for instance the police did have probable cause to arrest you but then used excessive force to subdue you, then your actions in resisting the officer is not considered self-defense. The officer involved, however, could be charged with assault.

Important Evidence

Lack of probable cause in arresting a suspect is a common defense in resisting arrest cases since you cannot use self-defense unless the arrest itself was illegal. To reiterate, it is not uncommon for police officers to fabricate a justification for entering a residence or searching you, your home or car when they lacked probable cause to do so and then arresting you.

As a defendant, you need to use every tool at your disposal to show that the police acted unlawfully in arresting you.

Pitchess Motion

If police misconduct is suspected, your defense lawyer can file a Pitchess Motion under Evidence Code Sections 1045 and 1043. The motion is to request the personnel file of the police officer who is the subject of the resisting arrest charge that may contain past incidents of misconduct. If the record does show that this officer has had complaints of misconduct or had been investigated and/or reprimanded, the court may disclose the name and contact information of the individuals making said complaints. A defense investigator may follow up and the defense may potentially call these complainants as witnesses to reboot the credibility of the police officer.

Video Evidence

Many police departments equip their officers with body cams. This has been in response to allegations of police brutality in stopping, detaining and arresting persons. Police vehicles may also be equipped with cameras or dash cams and audio since what was seen and said by the officer and defendant in the moments before the arrest was made or while excessive force was used is vital in determining if police acted unlawfully.

Bystanders often use their smartphones to videotape police actions and have been instrumental in many cases of excessive force by police.

Police and Defendant Testimony

Following an arrest, police are required to submit a report of the arrest that will contain statements made by themselves and the defendant. These statements can be contradicted by the body and dash cams or other video evidence from bystanders.

Eyewitness testimony from bystanders or pedestrians may also be vital, especially if they are neutral or disinterested parties.

What are the Penalties & Punishment For Resisting Arrest?

This offense is a misdemeanor for which the penalties may include up to:

PenaltyMisdemeanor
FineMax of $1,000 + Penalty Assessments
County JailUp to 1 year

Information On The Court Process

How We Can Help

We have significant experience defending clients charged under california penal code 148(a)(1) and in consultation with our clients we come up with the most effective defense strategy for your case.

Contact us for a free confidential consultation at 818-351-9555.

Request A Free Consultation 818-351-9555 

Footnotes

  1. Penal Code 148 – Resisting Arrest Defined (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment []
  2. Someone commits an act “willfully” when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. []
  3. A peace officer is any person who comes within the provisions of Penal Code section 830 and who otherwise meets all standards imposed by law on a peace officer, and notwithstanding any other provision of law, no person other than those designated in this code section is a peace officer. Peace Officer Defined: Penal Code Section 830 et seq. []
  4. An emergency medical technician is someone who holds a valid certificate as an emergency medical technician []
  5. A peace officer is not lawfully performing his/her duties if he/she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his/her duties. For example, a peace officer is not lawfully performing his/her duties when an arrest or detention is unlawful and/or when force is unreasonable or excessive. If a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section.” People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541]. An unlawful arrest includes both an arrest made without legal grounds and an arrest made with excessive force. Id. at p. 167. “[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element.” People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159]. The court has a sua sponte duty to instruct that the defendant is not guilty of the offense charged if the arrest was unlawful. People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663]. On request, the court must instruct that the prosecution has the burden of proving the lawfulness of an arrest beyond a reasonable doubt. People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651]. []

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