What is Resisting Arrest?
“Resisting arrest” refers to Penal Code section 148(a). That section criminalizes resisting, delaying, or obstructing, a public officer, peace officer, or emergency medical technician. It is also illegal to maliciously interrupt, disrupt, impede, or otherwise interfere with peace officer communications (PC 148(a)(2). Violation of either of these subsections is a misdemeanor. The punishment is a fine up to $1,000 and/or a maximum of one year in jail.
Penal Code section 148(b) criminalizes removing a weapon from an officer. The punishment is a maximum of one year in jail OR in state prison for 16 months, 2 years, or 3 years (PC 1170(h)(1)). When the punishment for a crime is no more than one year in jail (misdemeanor) OR prison for 16 months, 2 years, or 3 years under Penal Code section 1170(h) (felony), it is a “wobbler.” The prosecutor has the discretion to determine whether to charge a wobbler as a misdemeanor or a felony. The Judge has the power to reduce a wobbler from a felony to a misdemeanor under Penal Code section 17(b).
Penal Code Section 148(c) makes it illegal to remove a firearm from an officer (felony) or to attempt to remove a firearm (wobbler).
Defenses to Resisting Arrest
Criminal Conduct by Law Enforcement
Penal Code Section 148 does not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.
Violation of Constitutional Rights
Section 148 does not apply if the peace officer uses excessive force or makes an unlawful arrest. An arrest is unlawful if it is made without probable cause or a warrant.
Diversion
For misdemeanor charges, the defendant can request diversion under Penal Code Section 1001.95. If the defendant successfully complete diversion, the judge will dismiss their case.
Probation
Probation is possible for most charges that involve resisting arrest. The local probation department is responsible for supervising probation if the charge is a felony. Certain misdemeanors are also subject to supervised probation. For most misdemeanors, the judge supervises probation.
Other Resisting Arrest Charges
There are addition statutes criminalize resisting or evading arrest, including the following:
Penal Code Section 243(b) makes it illegal to commit a battery upon a peace officer. The punishment is up to one year in jail and/or a fine of no more than $2,000. The definition of a battery is any willful and unlawful use of force or violence upon another person.
Penal Code Section 69 makes it illegal to resist arrest using force or violence, or to obstruct an officer using threats or violence. Violation of this section is a “wobbler,” with a punishment of county jail or prison and/or a fine of no more than $10,000.
Vehicle Code Section 2800.1 makes it illegal to flee or elude a peace officer’s vehicle. Violation of this section is a misdemeanor punishable by up to one year in county jail. The prosecutor must prove the following facts to convict the defendant: that the officer’s vehicle was marked, showing a red lamp, sounding a siren (as reasonably necessary), and operated by a uniformed peace officer.
Vehicle Code Section 2800.2 makes it illegal to flee or elude a peace officer while driving recklessly. Driving “recklessly” means driving without regard to the safety of people or property. Committing three or more point violations while driving is also driving recklessly. Violation of this section is a wobbler for which the punishment is county jail or prison and/or a fine of $1,000 to $10,000.
Reporting Law Enforcement
Reporting law enforcement misconduct has its risks. Law enforcement could retaliate against you if you report them. However, it is also important to help prevent law enforcement from injuring people in the future. Establishing a pattern of misconduct helps future victims in their criminal defense. It is also helpful in lawsuits against law enforcement.
Suing Law Enforcement
You must file a “910 claim” with the law enforcement agency that harmed you within 6 months of your injury. If you fail to do this and file a lawsuit, your suit could be dismissed immediately.
The U.S. and California authorize lawsuits against law enforcement officers for violating federal or state rights. (See 42 U.S. Code Section 1983 or Cal. Civ Code Section 52.1).
RBX Law defends against resisting arrest charges.