Resisting Arrest

California law defines a variety of felony and misdemeanor offenses that may apply in cases of threatening or resisting a police officer, deputy sheriff, or other peace officer. Cases of Resisting Arrest are generally charged as felonies when a person is accused of (a) using force or violence against the officer, (b) making threats, (c) causing serious bodily injury or death, or (d) taking a firearm or weapon from the officer. The cases are generally charged as misdemeanors when a person is accused of resisting, delaying, or obstructing an officer, but is not accused of using force or violence.

Common Charges for Resisting a Police Officer or Deputy Sheriff

Criminal charges for Resisting Arrest are most frequently brought under Penal Code sections 69 or 148(a). Section 69 defines the offense of using force or violence to resist an executive officer. Section 148(a) defines the offense of resisting, obstructing, or delaying a peace officer. Unlike section 69, section 148(a) does not require proof that the accused person used force or violence to resist. Police officers and deputy sheriffs typically fall within the definition of an executive officer under section 69 and a peace officer under section 148(a).

Resisting Arrest by Means of Force or Violence (Penal Code section 69)

The crime of Resisting Arrest under section 69 is a “wobbler” offense, which means it can be charged as a felony or misdemeanor. As a felony, the offense carries a maximum imprisonment term of 16 months or two or three years and a maximum fine of $10,000. A person who is convicted under section 69 is generally eligible for probation and a suspended sentence.

A prosecutor's initial decision to allege a felony violation of Penal code section 69 does not mean necessarily that the allegation must remain a felony. Since the offense is a “wobbler,” it can be reduced to a misdemeanor by the prosecutor or judge. A person accused of a felony violation of section 69 should consult his attorney about seeking a reduction of the charge so that he can defend the case as a misdemeanor rather than a felony. As a misdemeanor, the charge carries a maximum imprisonment term of one year in the county jail.

Resisting, Obstructing, or Delaying Arrest (Penal Code section 148(a))

The crime Resisting Arrest under Penal Code section 148(a) can be charged only as a misdemeanor. Prosecutors typically bring the charge when a person is accused of delaying an officer, but not by means of force or violence. Common examples include allegations that a person ran away from an officer or refused to obey commands.

The penalties for violating Penal Code section 148(a) include a maximum imprisonment term of one year in the county jail and a maximum fine of $1,000. A person who has been convicted under section 148(a) should consult his attorney to prepare the best strategy for a mitigated sentence.

Pretrial Defense Strategy

A person accused of Resisting Arrest in many cases will want to determine whether the officer has engaged in prior misconduct that might undermine his credibility and undercut the prosecution case. To find out such information, the accused person ordinarily needs to request disclosures from the officer's confidential personnel file. Such disclosures can be obtained by presenting a so-called Pitchess motion in court. A successful motion may lead to discovery of evidence showing that the officer has a record of fabricating police reports, falsely arresting people, using excessive force, or engaging in other misconduct.

Trial Strategy

Trial strategy in Resisting Arrest cases frequently centers on (a) whether the officer was performing his lawful duties and (b) whether the accused person resisted the officer. A person cannot be found guilty of Resisting Arrest if the officer was unlawfully detaining or arresting him. A person also cannot be found guilty if the officer was using unreasonable or excessive force. The prosecution always has the burden of proving beyond a reasonable doubt that the officer was acting lawfully and that the accused person resisted the officer.

When a person is accused of resisting, obstructing, or delaying an officer under Penal Code section 148(a), the defense strategy also may center on whether the accused person caused the officer to encounter any unreasonable delay. The courts have established that a person cannot be found guilty of Resisting Arrest for failing to respond with “alacrity” to an officer's orders. To be held criminally liable, a person's delay in responding to an officer's lawful orders must have been unreasonable.

Aggressive Criminal Defense

Attorney Richard M. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Español.

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