Resisting Arrest

OC Legal Defense

Under California Penal Code 148, it is a crime to willfully resist, delay, or obstruct a police officer in performing his or her duties. Resisting or obstructing an arrest is a misdemeanor punishable by up to one year in jail.

There are certain elements that need to be present for a conviction to occur. The resistance needs to have been willful, the police officer must have been acting in accordance with the law, and the defendant should have reasonably known it was a police officer.

There are many defenses available if you are facing a resisting arrest charge. The most common ones include the arrest being made was unlawful, a reasonable person would not have known it was a police officer, and the resistance was not willful.

Punishment

Resisting Arrest is a misdemeanor and if you are convicted, you can be punished by up to one year in jail and up to a fine of one thousand dollars ($1,000.00).

Resisting arrest is usually charged with another crime. This punishment above can be given when no other punishment is prescribed.

The punishment will often depend on the circumstances of the case. More egregious facts alleged can lead to a heavier sentence.

Elements

The defendant is charged with (Resisting/Obstructing/or Delaying) a police officer in the performance or attempted performance of (his/her) duties [in violation of Penal Code section 148(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. There was a police officer lawfully performing or attempting to perform (his/her) duties;
  2. The defendant willfully (resisted/obstructed/or delayed) the officer in the performance or attempted performance of those duties; AND
  3. When the defendant acted, (he/she) knew, or reasonably should have known, that it was a police officer performing or attempting to perform (his/her) duties.

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.

[A person who is employed as a police officer by <insert name of agency that employs police offıcer> is a peace officer.]

<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Offıcer.>

[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]

[[The People allege that the defendant (resisted[,]/ [or] obstructed[,]/ [or] delayed) <insert name, excluding title> by doing the following: <insert description of acts when multiple acts alleged>.] You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the alleged acts of (resisting[,]/[or] obstructing[,]/ [or] delaying) a police officer who was lawfully performing his or her duties, and you all agree on which act (he/she) committed.]

[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[,]/ [or] obstructed[,]/ [or] delayed) the officer if all the other requirements are met.]

Lawful Performance by a Peace Officer

Some crimes (like resisting arrest) require lawful performance by a police officer to be proven. The following are the required elements and the specific jury instruction for law performance:

A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention).

<A. Unlawful Detention>

[A peace officer may legally detain someone if [the person consents to the detention or if]:

  1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; AND
  2. A reasonable officer who knew the same facts would have the same suspicion.

Any other detention is unlawful. In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person.]

<B. Unlawful Arrest>

[A peace officer may legally arrest someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to make the arrest).

Any other arrest is unlawful.

Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she arrested the person.

<Arrest without warrant for most misdemeanors or infractions>

[In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer’s presence.]

<Arrest without warrant for felony or misdemeanor not requiring commission in offıcer’s presence;>

[In order for an officer to lawfully arrest someone for (a/an) (felony/ [or] <insert misdemeanor not requiring commission in offıcer’s presence>) without a warrant, the officer must have probable cause to believe the person to be arrested committed (a/an) (felony/ [or] <insert misdemeanor not requiring commission in offıcer’s presence>). However, it is not required that the offense be committed in the officer’s presence.] <insert crime that was basis for arrest> is (a/an) (felony/misdemeanor/infraction).

<Entering home without warrant>

[In order for an officer to enter a home to arrest someone without a warrant [and without consent]:

  1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home; AND
  2. Exigent circumstances require the officer to enter the home without a warrant.

The term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or destruction of evidence.]

[The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. [The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody.] [The officer must also tell the arrested person the offense for which he or she is being arrested if he or she asks for that information.]]]

<C. Use of Force>

[Special rules control the use of force. A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.

[If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s use of reasonable force.

[However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.]]

If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself.

A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.]

Resisting arrest is usually an added crime to other charges you may be facing. It is important to be represented by an attorney if you are facing a resisting arrest charge. Call the Law Offices of Nam Q. Doan | OC Legal Defense today at (714)248-DOAN(3626) and I will help you fight your case.