RBX Law

Resisting Arrest

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 punishable by 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. It is punishable by a maximum of one year in jail OR in state prison for 16 months, 2 years, or 3 years (PC 1170(h)(1)). When a crime is punishable by 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 referred to as 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

If you are charged with a misdemeanor, you can request that the court grant you diversion under Penal Code Section 1001.95. If you successfully complete diversion, your case will be dismissed.

Probation

Probation is possible for most charges that involve resisting arrest. Probation will be supervised by a local probation department if the charge is a felony. Misdemeanor probation is supervised by the court.


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. It is punishable by up to one year in jail and/or a fine of no more than $2,000. A battery is defined as 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,” punishable by 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 punishable by 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 protect future victims from being injured by law enforcement. 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.