What is Resisting Arrest?

Every state defines what it means to resist arrest, and then it is enacted into law. In California, Penal Code Section 148 the offense is termed:

“Resisting, Delaying or Obstructing Officer”

The technical aspects of the statutes are included for the reader’s ease, but is relatively basic in content and form. The first part states that any person who willfully:

  • Resists
  • Delays
  • Obstructs
  • A pubic officer, emergency code officer, peace officer or EMT – during the officer’s duty – will result in the following fine and punishment:
  • Fine:  up to $1,000 and/or
  • Incarceration: up to 1 year, or both

The same penalties can be proscribed by the court for:

Knowingly and maliciously interrupting or interfering with public radio/transmission lines.

Additionally, if a person removes the weapon – other than the firearm – of the public or peace officer – shall be punished by imprisonment in the county jail for a term not to exceed one year.

If the defendant takes (either permanently or temporarily) a firearm of the public or peace officer, punishment shall be for a term to be decided by sub. (h), Sec. 1170.

If the person takes the weapon – without the intent to permanently deprive the owner of the property, punishment will be for a term to be decided by sub. (h), Sec. 1179.

In order to prove this, certain variables are looked at:

  • Whether the officer’s strap was unfastened by defendant.
  • Whether the firearm was partially removed by the defendant.
  • Whether the safety was released.
  • To prove this, the court will look at:
  • Whether an independent witness can corroborate this
  • Whether the independent witness can verify that the defendant intended to remove the firearm
  • Whether the independent witness can corroborate that the defendant tried to remove the gun
  • Whether the defendant’s fingerprints can be found on the gun or holster.

Are There Witnesses?

Whether the court can assert and convict the defendant of resisting arresting may seem like a relatively simple matter but it is often a most difficult. Whether there were witnesses who can – and will – testify as to the actual actions during the arrest will have a great bearing on the outcome. Often the entire outcome will result on the veracity of the witness(s). In many areas – especially crime-ridden areas – individuals will not testify on behalf of the police and frequently the accused is released due to the lack of evidence or desire to testify.

No legal principle is held closer to the heart than the individual’s desire and wishes to be free. It is difficult to prove the most basic cases – simply because the principle of freedom is greater than what the witness might have and might not have seen.

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Michael S. Berg
Attorney At Law