Resisting Arrest / Resisting an Executive Officer

June 18, 2020 48299488 0 Comments

Resisting arrest offenses are often thought to only include circumstances where the suspect becomes physically combative and fights with police officers.  The reality is that the offense can include situations where the subject is “passively resisting” or simply interfering with the officer while he/she is performing her duties.  


To prove that a defendant is guilty of resisting arrest (Penal Code section 148(a)(1)), a prosecutor must prove that the he/she:

  • willfully resisted, delayed, or obstructed a public officer, peace officer or emergency medical technician 
  • while performing, or attempting to perform his/her duties
  • the defendant knew or should’ve known that the officer or EMT was engaged in his official duties.

The “willfulness” of the act does not require that the defendant had the intent to break the law, but simply intended “to do the act” or to do so “willingly”.  The following are examples of resisting arrest:

  • the subject is ordered out of his car during a DUI investigation, but refuses to do so
  • a passerby witnesses someone getting arrested and instructs that person to not answer any police questions nor to do anything the police request 
  • the defendant manipulates his hands in order to make it harder to be handcuffed


Defenses do exist for countering a resisting arrest charge.  These may include, but are not limited to: lack of probable cause, accident, or a false accusation.  Using the above examples, consider these added details:

  • the officer had no legal justification to stop the driver in the first place
  • the passerby did not know the subject was being arrested by police officers because they were in plain clothes and hadn’t identified themselves as police officers
  • the handcuffs were being applied so tightly and causing significant pain that the defendant simply reacted instinctively and without an intent to imply resistance  

These scenarios reflect why it is so important to speak with an experienced and knowledgeable attorney.  Only after a full and frank discussion concerning the initial contact with the officer (or EMT) and subsequent arrest, can it be determined if there are legal defenses to a resisting arrest charge.  Alternatively, if a legal defense, as presented to a prosecutor by the attorney, does not result in the case being dismissed, then perhaps the proposed defense can assist in getting the charge reduced and/or penalties mitigated.

Punishment & Additional Charges

A resisting arrest offense is a misdemeanor offense and is punishable by a period of informal probation (usually three years), and up to one year of custody in the county jail, fines/fees.  

However, in cases where the defendant actually uses force or threat of force in the act of resisting or delaying an officer, the conduct may elevate the charge to resisting an executive officer (Penal Code section 69(a)).  And, in cases where the defendant causes the officer bodily injury, the defendant can also be charged with battery upon a peace officer (Penal Code sections 243 (b) or (c)).    Either of these offenses can be charged as a misdemeanor or as a felony.  For misdemeanor convictions, the defendant can be sentenced to a period of years of informal probation (usually three years), up to one-year custody in county jail, fines/fees and restitution (if applicable).  

For felony convictions, the defendant may either receive a term of formal probation (in unusual cases only), up to one year of custody in county jail, attendance at anger management classes, fines/fees and restitution to the officer (if any).  If probation is denied, then the defendant is facing confinement in state prison for 16 months, 2 years, or 3 years.   

Convictions involving Penal Code sections 69 and 243(b) & (c) are considered to be “crimes involving moral turpitude” and as such, there are additional collateral consequences that may include; loss of employment, removal (deportation) from the country and simply, and loss of one’s good reputation.   

Firearms Ban

Additionally, any felony or misdemeanor conviction (involving Penal Code section 69 and 243 will result in a lifetime ban or 10-year on owning or possessing a firearm, respectively.   Moreover, any firearms that the defendant owns or has in his/her possession will have to be given up or confiscated.

Again, given all of the consequences for a resisting arrest offense, it is extremely helpful to speak with an attorney to develop an effective strategy.  Doing so may prevent the case from being filed in the first place, or assist in having it dismissed later.  If these results are not possible, then genuine efforts can be made to reduce the charge and/or lessen the possible penalties.