Resisting Arrest – Orange County Defense Attorney

Resisting Arrest – Penal Code section 148(a)(1)

The crime of “resisting arrest” is covered in Penal Code section 148(a).  It is a misdemeanor to willfully and unlawfully “resist, obstruct or delay” an officer in the performance or attempted performance of their duties.  If convicted, the maximum possible sentence is up to one year in county jail and/or a fine of up to a thousand dollars.

Is not answering questions “resisting or delaying”?

There are different levels of police interaction and each has its own rules.
Consensual Encounters – the police need no justification or evidence to contact anyone, as long as they are in a place they have a lawful right to be.  The key to a consensual encounter is that you truly have to be free to walk away and not cooperate if you don’t choose to.  You don’t have to answer any questions.  When in doubt, ask, “Am I free to go?”  If they say yes and you don’t feel like sticking around, tell them to have a nice day and be on your way.  If they say you’re not free to go and/or they do something that makes it so you’re not free to go, then you are detained.

Detentions – a detention allows the police to temporarily hold you for investigation, but it is limited.  They must have “reasonable suspicion” of criminal activity and some information that connects you.  They can then detain you for a “reasonable” period of time while they confirm or dispel their suspicions.  During a detention, you are obligated to identify yourself (and failing to do so or falsely identifying yourself is a separate crime).  You are still not obligated to incriminate yourself, however.  During a detention, they are not required to read you your Miranda rights.  That doesn’t mean that the Fifth Amendment doesn’t apply to you though.  There’s nothing that says you have to help them gather evidence against you, whether you’ve been read your rights or not.  If you do choose to answer their questions, however, intentionally misleading or delaying answers may rise to the level of a misdemeanor resisting, delaying or obstructing offense.  Better safe than sorry – aside from answering truthfully who you are, if you’re under investigation or detained, ask for an attorney and keep quiet.

Arrests – Finally, if the police develop “probable cause” to arrest you, you can be taken into custody.

For more about interacting with the police, see this article.

Do I have to answer any questions at all?  Or will that be “resisting”?

As I discussed above, you must identify yourself truthfully during a detention.

If you’re arrested, they must advise you of your Miranda rights before any interrogation.  If you hear those magic words starting (“You have the right to remain silent . . .”), that’s your cue to keep quiet and request a lawyer.  There is nothing you can say or do at that point to get them to “un-arrest” you.  Either they have enough (and they think they do – that’s why they arrested you) or they don’t.  If they have enough, your time to explain will come, but you really should speak with an attorney first.  If they don’t have enough and they’re hoping you’ll say something to build their case for them… don’t.  It’s tough to undo a statement to police.  Don’t help them build a case.  Keep quiet.

What conduct is “resisting or delaying”?

If the police have enough information to detain you, they are entitled to use “reasonable force” to keep you there while they investigate.  If they inform you that you’re either being detained or arrested and you run, that can be enough to add on the charge of resisting or delaying.  A brief protest is usually insufficient, so if you face a resisting arrest charge because you questioned the officer’s actions or challenged his authority, you may have a valid defense.

What are the defenses?

The law says that a person may not use force against a police officer – that’s a separate crime of battery on a peace officer [Penal Code section 243(b)], but it is a defense to resisting arrest if the arrest itself was unlawful.

A person is NOT GUILTY of resisting arrest if the underlying detention or arrest was unlawful.  One of the elements to resisting arrest is that the officer must be in the “lawful performance” of their duties.  An illegal detention or arrest without sufficient evidence is unlawful and any resisting arrest is not technically against the law.  If the arrest was lawful, but the officer used excessive force in doing so, then they are not in the “lawful performance” of their duties and you would have a defense to a resisting arrest charge.

And finally – a person must know (or reasonably should know) that the person they’re resisting is a peace officer.  If an officer is undercover, fails to properly notify you that they’re the police and you run away – it’s NOT resisting or delaying an officer.

Every case is unique – to discuss your situation further, please contact me and schedule a case review.

Joe Dane

(714) 532-3600

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