Resisting Arrest Laws, Charges and Punishment

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The term “resisting arrest” is often used by law enforcement professionals to indicate that their arrest or investigation was not as easy as it could have been. For instance, someone who was reluctant to respond to an officer, or even slightly slow, could face a resisting arrest charge. A charge can even be brought if no arrest is taking place! Naturally, law officers are limited to a certain degree in terms of how they interpret the behavior.

Resisting Arrest Laws

The laws for resisting arrest vary significantly depending on the state. For instance:

  • In California, resisting arrest is covered under Penal Code 148(a)(1), although this code also discusses other issues. Specifically, this code forbids people from purposefully obstructing, delaying, or otherwise resisting the duties of law enforcement officers and emergency medical technicians (EMTs).
  • In Washington State, resisting arrest is covered under RCW 9A.76.040 if they intentionally attempt to prevent or prevent the lawful arrest of a peace officer. This code classes it as a misdemeanor offense.
  • In Maryland, Md. Ann. Code Section 9-408 classifies resisting arrest as a misdemeanor punishable by up to three years in prison and/or an up to $5,000 fine.
  • In Virginia, Section 18.2-479.1 classifies resisting arrest as fleeing from a law enforcement officer, which is a Class 1 misdemeanor.

Resisting Arrest Crimes & Charges

In order for someone to be prosecuted for resisting arrest, different issues have to be proven. The burden of proof lies with the prosecution and the judge or jury will determine whether the proof indicates the deed was done beyond reasonable doubt. Under the majority of laws, it has to be demonstrated that:

  • The defendanst willfully obstructed or resisted an officer of the law, meaning they hindered the arrest. The result, including harm, may not have been intentional.
  • The defendants acted in a violent way, or threatened to act in a violent way.
  • The officer of the law was acting in an official capacity and had properly engaged. This does not necessarily mean that the defendants are guilty of the crime they were arrested for, however.

Resisting Arrest Punishment

The punishment for resisting arrest depends on whether it is charged as a misdemeanor or a felony crime. This, in turn, depends on state laws and on the facts surrounding the case. While the exact penalties vary from one state to another, misdemeanors usually come with:

  • Up to one year in jail
  • Fines of up to $5,000
  • Informal probation for a period of between three and five years

In the case of a felony charge, punishments usually include:

  • Up to three years in jail (ten years in Louisiana)
  • Fines of up to $10,000
  • Restitution
  • Formal probation, requiring monthly or even weekly reporting for a set period of time

Resisting Arrest Sentencing Guidelines

The sentencing guidelines are wholly different from one state to the next. The circumstances surrounding the resistance are usually taken into consideration, helping a judge to decide whether the crime is a misdemeanor or a felony, and to what class it belongs. The absence or presence of violence is usually a determining factor.

Resisting Arrest Statute of Limitations

Each state can set its own statute of limitations. That said, resisting arrest is generally charged as a misdemeanor crime, which usually involves a two year statute of limitations. If violence was involved, it is often more, however.

Resisting Arrest Elements

In order for a charge of resisting arrest to stick, a number of different elements have to be present. Mainly, it has to be demonstrated that they willfully resisted or obstructed an officer of the law’s official and legal duties. Often, it must also mean that there was a significant risk of bodily injury to a third party, whether or not he is the officer; or that they acted in such a way that the officer felt justified in using force.

There are states in which any action that can be seen as impeding an officer of the law can be prohibited. What this means is that, even if an officer did not even attempt to make an arrest, defendants can still face a resisting arrest charge. Other states, however, only allow the charge if the officer was in fact in the process of making an arrest.

The burden of proof for a guilty verdict lies with the prosecution, and they must generally demonstrate beyond a reasonable doubt that:

  • The defendants were, or should have been, aware of the fact that they were resisting or obstructing the work of a law enforcement official.
  • The arresting officers had a legal right to perform their duties.
  • The defendants willfully resisted the efforts of the officer.

Resisting Arrest Techniques

Usually, in a resisting arrest case, people delay, resist, or obstruct the law enforcement officer from performing his duty. Exactly how they do that will vary, but it is common to see:

  • Physical struggle during an arrest
  • Attacking an officer during an arrest
  • Providing false information or fake details to an officer
  • Forcing an officer to drag or carry an individual during their arrest

Resisting Arrest Defenses

It is often very difficult to determine whether those charged truly obstructed or resisted an arrest, because the legal standard is quite vague. It is common to see judgments from law enforcement officers that is perhaps rushed because of the highly stressful situations they are in. The result is that a number of common defenses are seen in these charges, including:

  • The use of excessive force, leading to the accused feeling the need to use self-defense
  • That the arrest was unlawful, which means the law enforcement officers were not acting according to their duties.
  • Factual errors, which is a dangerous defense as it essentially means accusing an officer of the law of lying. However, if the facts in the police report are erroneous, this could be a defense.
  • Lack of harm, which can only be used in those states where resisting arrest always involves harm to the officer or another third party. In some states, the risk of bodily injury has to be present, and it is possible to argue that this risk was not present.

Resisting Arrest Cases

  • Five-Year Prison Sentence on Route 78 DUI and Other Charges – A man who was arrested on charges that included driving under the influence and resisting arrest has been sentenced to five years in prison.
  • McAlester man enters guilty plea; receives suspended sentence – Evan James McGee, 21, of McAlester, entered a guilty plea Feb. 8 for charges against him – including one misdemeanor count of resisting arrest – and received suspended sentences and probation as part of a plea agreement.
  • Ex-Tinian mayor’s employee gets 15-day prison term – A former employee of the Tinian Mayor’s Office facing charges of domestic violence, threats to kill police officers, and spitting on a police officer, has pleaded guilty and was sentenced to 15 days in prison. The remaining charges of disturbing the peace, resisting arrest, and fleeing a police officer were dropped.

References

  • Resisting Arrest. (n.d.). Retrieved from http://criminal.findlaw.com/criminal-charges/resisting-arrest.html
  • Resisting Arrest: Laws, Penalties, and Defense. (n.d.). Retrieved from https://www.criminaldefenselawyer.com/crime-penalties/federal/Resisting-Arrest.htm
Geoffrey Nathan, Esq.

About Geoffrey Nathan, Esq.

Geoffrey G Nathan is a top federal crimes lawyer and Chief Editor of FederalCharges.com. He is a licensed attorney in the Commonwealth of Massachusetts since 1988, admitted to practice in both Federal and State courts. If you have questions about your federal case he can help by calling 877.472.5775.