Resisting arrest is a misdemeanor, punishable under California Penal Code 148(a)(1) PC. Anyone who "resists," "delays," or otherwise "obstructs" an officer or EMT in the course of his or her duties can be charged under Penal Code 148 (a). As a standalone crime with its own distinct penalties, you can be charged and convicted for resisting arrest even if you are not found guilty of the crime the officer was attempting to arrest you for.
If an individual immediately disputes the officer's reason for arresting them (i.e. they are not guilty of the underlying crime), there may be a knee-jerk reaction to resist. As a result, it can be a crime for an innocent to contest their guilt.
Resisting arrest is one of the most commonly charged variants of this offense, however, there are a number of offenses one can be charged with under Penal Code 148a, including:
- giving false information, such as a false name, to officers in the course of an arrest
- taunting or jeering officers in the course of duty, in a way that threatens violence
- interviewing witnesses and suspects related to a crime
- traveling to the scene of an accident or crime
- otherwise monitoring criminal suspects
- taking a gun or other weapon from a police officer
- maliciously or knowingly interrupting/interfering with communication over a public safety radio frequency
There are three elements required to prove the crime of resisting arrest in California:
1. A peace officer, EMT, or public officer was lawfully performing or attempting to perform their duties.
The officer or EMT must be lawfully executing some aspect of their job description, while on duty. If they are attempting to make an unlawful arrest (which could be later argued by your criminal defense attorney), then you may have a defense to resisting arrest.
An officer is permitted to use reasonable force to make an arrest or conduct a lawful detention, however, if they exceed this vague boundary and use "excessive" force, this may a defense if you are charged with resisting arrest.
2. Willfully resisted, obstructed or delayed the execution of the officer or EMT's duties
"Willfulness" and "intention" are the key elements. The person does not need to know their actions are illegal in order to constitute this crime. So long as their actions were intentional, they may be charged.
If a person inadvertently acts in such a way that obstructs an officer in the course of their duties, they may not be found guilty of resisting arrest (if they can prove that they acted unintentionally).
Resistance, obstruction or delay can be vague terms. Physical struggle is what most people tend to picture when they think of "resisting arrest." This may include running away, hiding, or physically fighting off an officer who is attempting to arrest you. However, a person may be found guilty of resisting arrest even in the context of complete, undisputed physical compliance. If a person gives a false name to officers during the arrest and booking process, he or she may be found guilty of resisting arrest.
Alternatively, a third party who is not being arrested could be found guilty of the offense if they so much as talk to the person being arrested - if police believe the person's actions ultimately delayed the arrest they were attempting to make. If you or a friend swear at, criticize or jeer at officers during your arrest, it will not be considered resistance or obstruction unless your words pose an immediate threat of violence to the officer or EMT.
3. The offender knew or should have reasonably known that the officer was in the course of performing his or her duties
This element is determined objectively by the court. Under specific circumstances, a person may genuinely not have known that an officer was attempting to pursue or detain them. For example, a driver may be extremely distracted by something and not realize an officer is pursuing them. However, if the court objectively finds that a "reasonable person" in the same position would have been aware that they were being pursued by an officer, then they could still be found guilty of resisting or obstructing arrest.
Is It Considered 'Resisting Arrest' if You Record An Officer?
With the advent of smartphones, it has become increasingly common for individuals to film and photograph attempted arrests, especially when there are scenes or altercations. The California legislature amended the Penal Code in 2015 to clarify that it is legal to take an audio or video recording, without being charged with resisting arrest. The person recording the incident must, however, have the right to be where they are, or the officer must be in a public space. Photographing or taking video does not give a peace officer the right to arrest that person.
Penalties for Resisting Arrest in California
As a misdemeanor and a standalone crime, a person convicted of resisting arrest under Penal Code 148 PC faces:
- up to a year in county jail
- a fine not to exceed $1,000 and/or
- probation under Californian probation laws, with probation terms relevant to the nature of the offense.
These penalties would be in addition to any penalties you receive if you are convicted of the crime for which you were being arrested.
Defenses to Resisting Arrest in California.
If you have been charged with resisting arrest in California, you are advised to speak with a California criminal defense attorney immediately to go over your options. The breadth of this law makes it much easier for you to be charged, even if you were fighting an arrest for a crime you didn't commit. You should speak with a lawyer so they may review your case, scrutinize your charges and begin building your defense.
There are a number of ways to defend against resisting arrest charges, and the applicability of these defenses will depend on the circumstances of your case. Police misconduct is a common way to challenge a charge for resisting arrest.
Potential defenses include, the arrest itself was unlawful due to:
- lack of probable cause
- officer entered your home without permission or warrant
- unreasonable use of force
- racial profiling
If an officer uses excessive force, then your resistance may be construed as self-defense in which case you did not commit a crime. If, however, the officer's increased use of force was a response to unsolicited aggressive or forceful behavior on your part, the court can find in favor of the officer.
If your lawyer raises questions about police misconduct, they may file a Pitchess motion, the purpose of which is to request information contained in the arresting officer's personnel file. If there is a history of misconduct or false allegations, your charge may be dismissed.
Many times, the charge of resisting arrest is not justified. If you are rude or uncooperative with officers, there is a chance you will be cited for resisting arrest. Under these circumstances, recordings can be very helpful in determining whether or not your behavior was legally appropriate.
It is certainly possible that a charge for resisting arrest will be compounded with an assault charge, if there was a physical altercation between you and your arresting officer. Even if you inflicted no injury or only made verbal threats, you could be charged with assault- so long as you were presently "capable" of carrying out the threats you made.
The penalties for assault are up to 1 year in jail and a maximum fine of $2,000. It is also possible that you will be charged with battery of a peace officer, if you use unlawful physical force against the arresting officer. The penalties are the same as assault, unless you inflict serious bodily in which case the crime becomes a felony punishable by up to 4 years in prison.
East Bay Criminal Defense Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing criminal charges, including resisting arrest. Contact East Bay criminal defense attorney Lynn Gorelick.