Resisting Arrest

Overview of Resisting Arrest

As per PC 148, it is a criminal offense for a person to intentionally or deliberately obstruct, delay, or resist a peace officer or EMT from executing his or her official duties. The lawful duties in question include almost everything job-related and not limited to the act of making an arrest. PC 148 is a crime on its own with distinct penalties upon conviction.

Take note that you don’t need to be guilty of the underlying crime to be convicted of violating PC 148. Even if you are innocent of the crime whose reason for arrest you disputed, the court will find you guilty of resisting arrest. This means that it is against the law for an innocent person to resist arrest.

However, law enforcement officers are prohibited from using excessive force when responding to the reaction of a suspect resisting, delaying, or obstructing an investigation or arrest.

Recently, in the new circles, cases of police using excessive force on suspects resisting arrests have been on the rise resulting in serious injuries or death on the person resisting arrests. Most of these cases have, however, been associated with racism or ethnic biasness by police. While these cases are there, it’s critical to understand what prosecutors must prove to convict a person for resisting arrest.

Three Things a Prosecutor Must Prove Under PC 148 to Convict you of Resisting Arrest

To demonstrate that the defendant is guilty of violating PC 148, the prosecutor must assert the following elements:

1. The Casualty a Peace Officer, EMT, or Public Officer Lawfully Executing or Attempting to Execute Official Duties.

The prosecutor must show the jury that the victim, in this case, a peace officer, was executing or trying to execute official duty that is within his or her job description. If the officer were doing anything outside his or her job description, the arrest would be illegal in the first place, which means you can challenge resisting arrest charges that are brought against you for disputing an arrest.

Keep in mind that an officer can only be executing lawful duties if he or she uses reasonable force when conducting an arrest. If the force exceeds what is considered reasonable force, the force becomes excessive, and the officer will no longer be engaging in a lawful duty. Therefore, you can challenge this element if excessive force was used during the arrest.

2. The Offender Intentionally Fought Back, Foiled, or Delayed the Execution of Lawful Responsibilities.

Under this element, critical terms are consciousness and intention. You don’t need to know that your conduct is illegal to be guilty. If your actions were deliberate, you would be subject to PC 148 charges. But if you inadvertently conduct yourself in a manner that obstructs a peace officer form executing legal duties, then you are innocent of these charges.

Note that the terms resist, delay, or obstruct may sound vague. For this reason, it is up to the prosecutor to show the actions amount to resisting, obstructing, or delaying arrest. They must show that you intentionally ran away, hid, or physically fought off the arresting officer.

You could still be guilty if the prosecutor can show there was physical compliance, but you gave a false name during the arrest and booking process.

Similarly, a third party who has not committed any crime can end up with a conviction for resisting arrest if the officer feels their actions, for instance, talking to the arrestee, is delaying the arrest the officer is trying to make. A third party will also be guilty of resisting arrest if they swear, jeer or say things that threaten the safety of the officer making an arrest. If the words don’t pose any threats of violence against the EMT or public officer, the action will not be deemed as resisting arrest.

3. The Offender Knew or Ought to have Known that the Victim was Executing Official Duties.

The prosecuting attorney must also show that you had knowledge or should have known the officer was engaged in the execution of official duties. But the decision on whether or not you knew an officer was performing lawful duties is objectively left to the court.

For example, if you are on the phone while driving and fail to notice that a police officer is pursuing you, the court will still find you guilty of resisting arrest even if you were not aware an officer was pursuing you. The court will presume that if a reasonable person were driving under the same circumstances, he or she would have known that an officer was pursuing them and stopped.

You should understand that PC 148 is not only limited to the act of resisting arrest. Any interference of the performance of official duty amounts to resisting arrest. If you prevent the authorities from interviewing a witness, interfere with the travel of police officers to the scene of a crime, or attempt to interfere with officers monitoring a suspect, you are guilty of PC 148 violation.

A person is subject to PC 148 charges if he or she commits any of the acts defined under this statute, which are; resist, obstruct, or delay. Also, with the arrival of smartphones, Californians record officers every time they are making an arrest, mainly if there is an altercation at the scene. If you are where you are required to be or in a public place when recording an arrest, the officers don’t have any right to arrest you. However, if you are recording the video at a location you have no right to be, you can end up with charges and a sentence for resisting arrest.

Penalties for Resisting Arrest as per PC 148

Resisting arrest is a misdemeanor in California, and upon conviction; you will be subject to the following consequences:

• No more than twelve months in a Los Angeles County jail
• Up to 1000 dollars in court fines

A judge may also impose summary probation in place of jail incarceration. But keep in mind that the probation comes with a lot of conditions. If you violate these terms of probation, the judge will cancel the probation and have you serve the original sentence.

Fighting a Resisting Arrest Charge

Whenever you are facing resisting arrest charges in Van Nuys, you should talk to Leah Legal immediately so that they can begin preparing your defense. The reason you should speak to a criminal defense attorney is that they have in-depth knowledge of these statutes and will ensure you won’t face charges for a crime you didn’t commit. An attorney will analyze the specifics and nature of your case and put up the right defenses. Some of the legal defenses that can apply in these charges include:

No Likely or Probable Cause

The 4^th Amendment requires an arresting officer to have likely or probable cause for an arrest to be considered legal. If the officer lacked probable cause during an arrest, the arrest is not lawful. This means that even if you resist, obstruct or delay the unlawful arrest, the court will not find you guilty of violating PC 148. Also, if the officer engages in any unlawful activity while making the arrest, such as racial profiling and conducting an illegal search, then even if you resist, the court will not find you guilty. 

It is not common for law enforcement officers to enter a property where they suspect drug activity and search the area without a search warrant and then claim that they had consent from the owner once they have enough evidence. If the police officer observed the crime, then he or she can make a lawful arrest but with an arrest warrant. The only other way an arrest will be legal is when an officer has probable cause.

Probable cause will be present if a sober and cautious officer believes that a person is engaging or has engaged in criminal activity. An officer must point out specific facts that make him or her believe that the defendant engaged in criminal activity before the arrest.

Similarly, an illegal arrest means that the evidence gathered against you will not hold up in court because it is inadmissible. The prosecution may be forced to offer a plea deal or drop the charges.

Our defense attorneys at the Leah Legal could also file a Pitchess Motion there is evidence to show an officer engaged in police misconduct. If the judge grants the motion, the officer must provide a copy of the personnel file containing all documentation of complaints and police misconduct. With this kind of evidence, your criminal defense attorney can force the prosecution to offer a better plea deal.

False Allegations

A police officer might falsely accuse you of resisting arrest just to cover up their misconduct. Others will bring false accusations just because they don’t like you or due to racial profiling. Moreover, you might face resisting arrest accusations because of requesting an explanation for the reason for your arrest. An officer who thinks that it is rude to request an explanation for arrest will arrest you for resisting arrest.

If this happens and you are facing charges of violating PC 148, your defense attorney should explain the events that led to the criminal accusations. The police bodycam footage and statements from eyewitnesses can be used as evidence to show you are falsely accused. Filing a Pitchess Motion could also help you prove that you are a victim of false allegations.

Self-Defense

Police officers are required by the law to use reasonable force when making an arrest. Any use of force that exceeds reasonable is excessive, and if an officer of the law uses excessive force during arrest, you have a right to resist or fight back. However, there is a particular set of standards on when you should back off. One of these standards is you can use no more force than what is deemed necessary for self-defense. The other standard is that the force used to fight back is reasonable, and a sober person under similar circumstances could have used the same force.

If this is the case, then your attorney can assert that you were protecting yourself or another party from harm. Take note that if the police officer uses excessive force when responding to forceful behavior or aggressiveness from your part, the court will not consider resisting arrest as self-defense.

No Willful Act

As mentioned earlier, an accused can only be guilty under PC 148 if the conduct was intentional or willful. An excellent attorney can argue that you obstructed delayed or resisted arrest by accident and that you didn’t resist arrest knowingly.

Critical Evidence in Resisting Arrest Cases

A defendant cannot use self-defense if an arrest is lawful, which makes self-defense a common defense strategy in PC 148 charges.

Police cannot fabricate evidence to justify their reason for entering a household and conducting a search if they have no probable cause for doing so or for making an arrest. It is your role as a defendant to provide all the evidence that can help demonstrate the conduct by the police at the time of arrest was illegal. Some of the crucial evidence you will require for this includes:

1. The Law Enforcement Officer’s Personnel File

Where there are suspicions of police misconduct, your attorney can register a Pitchess Motion. If the court grants the motion, the defense team can access documents that contain complaints registered against the officer in the past.

If the file shows that the officer has a history of police misconduct, the court will share with the defense team the name and contact of the people who registered various complaints. Excellent criminal defense attorneys usually have investigators who conduct independent investigations on complex cases. Such an investigator will be used to track down the complainant and find out if the complaints are credible. In the event they are, the attorney can use this for negotiations during plea bargains.

2. Video Evidence

The Van Nuys police department has equipped its officers with body cams. Police cars are also fitted with cameras, dash cams, and audio because every event that happens before an arrest is critical in determining if there was police misconduct.

Eyewitnesses also can use smartphones to record when an arrest is going on if they are in the right place. If an officer was using excessive force, these videos could act as reliable evidence.

3. The Police and Defendant Testimony

When an officer makes an arrest, the law requires the officer to prepare a police report consisting of the offender’s and victim’s testimony. If the officer lies in the police report, the body and dash cams will show otherwise. Statements by eyewitnesses can also help in building a strong defense.

Plea Bargains and Resisting Arrest Cases

A plea deal is an agreement between the accused and the prosecutor, where the accused confesses to committing another crime in exchange for a lesser sentence. Usually, the defendant is the one that initiates this process, but at times, the prosecution can also initiate the process. If the charges against you are for resisting arrest, the prosecutor will only accept a plea for trespassing or disturbing peace.

Plea deals are good for defendants because they reduce embarrassments and are cheap. If the facts of the case are against you and no kind of defense can save you, a plea deal can be a great alternative. The prosecutor won’t quickly agree to a plea deal unless they realize they have no guarantee of winning a case. When this is the case, your defense attorney makes an offer, and if the prosecuting attorney agrees to it, they lower the charges in exchange for a confession for another offense.

Plea bargains are often costly and time-consuming, and despite this, the deal must go before the court so that they can determine if it is in the interest of justice. It is up to your attorney to convince the prosecutor and the court in general that you need to face a different and lesser charge because the defendant has no prior offense, was provoked, or because it is in the interest of justice.

Related Charges

Multiple crimes are related to resisting arrest. These are:

Resisting an Executive Officer

As per California PC 69, it is illegal to resist an executive officer. CPC 69 is violated when you willfully and unlawfully attempt to avert an executive official from executing their official duties using threats or violence or use energy or violence to contest an executive officer from executing official duties.

An executive officer, in this case, includes elected officers, government prosecutors, and defense attorneys, judges, and police officers.

Prosecutors file this offense as a misdemeanor or a felony. A conviction for a misdemeanor attracts a penalty of no more than a year in jail while a felony sentence will attract 16, 24, or 36 months in the Los Angeles county jail.

Assault

Assault is defined under CPC 240 as an attempt to commit a violent injury to somebody else. The charge is compounded with resisting arrest, where there is a physical altercation between the suspect and the arresting officer. Keep in mind that even if the officer is not injured, but you made verbal threats, and you had the present ability to carry out the threat, you will still be charged with assault.

To earn a conviction, the prosecutor must prove the following elements:

• You as the defendant did something that could result in the use of force against an officer
• You engaged in the act deliberately
• You knew of the facts that would make a sober person believe that the conduct would openly or perhaps result in the use of energy.
• When you acted, you could apply force on someone else

The punishment for assault is a maximum of twelve months in jail and 2000 dollars in fine.

The Battery on a Peace Officer

It is possible to be charged with battery on a peace officer on top or in place of resisting arrest. California PC 243 is the statute that defines this offense as the intentional and illegal touching of a peace officer in a harmful or offensive fashion when the officer is executing official duties. The statute is violated when you commit battery, and you know or should have known that the victim of your actions is an EMT, public or private officer executing lawful duties.

The penalties for this offense upon conviction include jail incarceration for a year and court fines amounting to a maximum of two thousand dollars. These consequences are similar to those of assault, but if you cause severe injuries to the officer, the offense becomes a felony punishable by four years in prison.

Evading Arrest

California Vehicle Code 2800.1 forbids intentionally evading a pursuing officer in a vehicle. VC 2800.2, on the other hand, prohibits evading a pursuing officer while driving recklessly. VC 2800.1 is a misdemeanor with a sentence of no more than a year in jail, while VC 2800.2 is a wobbler and can be filed as a misdemeanor or felony based on the facts and circumstances of the case.

Find a Criminal Defense Attorney Near Me

If all officers adhered to the law when making an arrest, very few people would face resisting arrest charges in Van Nuys. Unfortunately, many officers violate the law resulting in wrongful accusations. At Leah Legal, we are here to provide defense against these charges. Contact us today at 818-484-1100 for a free consultation.