Resisting Arrest

Overview of California Penal Code 148(a)(1) (Resisting Arrest)

California Penal Code 148(a)(1) prohibits what is commonly dubbed “resisting arrest.” It outlaws any attempt to willfully resist, delay, or obstruct a law enforcement officer or emergency medical technician (EMT) while they are performing or attempting to perform their duties.  Such duties may include arresting a suspect, investigating a crime, traveling to the scene of a crime, or monitoring a criminal suspect. A conviction for Penal Code 148(a)(1) is a misdemeanor that may result in up to 1 year in a county jail and up to a $1,000 fine.

Some common examples of “resisting arrest” include:

  • Refusing to be handcuffed
  • Providing a false name to law enforcement
  • Running away from the police
  • Refusing to get out of a vehicle

The Elements of “Resisting Arrest”

In order to be convicted of “resisting arrest”, the prosecutor must prove all three elements of Penal Code 148(a)(1).  This means that they have to show, beyond a reasonable doubt, that:

  • 1) A law enforcement officer or EMT was performing or attempting to perform a legal duty.
  • 2) There was an attempt by you to willfully resist, obstruct, or delay the performance of that legal duty.
  • 3) You knew or should have reasonably known that the law enforcement officer or EMT was performing or attempting to perform a legal duty.

The specific legal definitions contained in Penal Code 148(a)(1) will also play a critical role in determining whether or not you receive a conviction for “resisting arrest.”

  • Willfully: The prosecutor must prove you that you acted purposefully. This does not mean they have to show you purposefully broke the law, injured someone, or even resisted arrest.  They just have to show that you acted intentionally.

    • Example: Wayne is frightened by nearby gunshots and starts running to safety. When turning a corner, he bumps into a police officer who was chasing after a potential suspect.  The police officer falls on the ground.  Although Wayne’s actions prevented the police officer from apprehending the suspect, he cannot be convicted of Penal Code 148(a)(1) because he did not bump into the police officer on purpose.

    • Example: If, in the example above, Wayne ran into the police officer so that his friend could escape, then he could be convicted of Penal Code 148(a)(1).  He acted with the intention of obstructing the apprehension of a suspect.

  • Resist, Delay, or Obstruct: Penal Code 148(a)(1) is not limited to physical acts of resistance, delay, and obstruction.  Thus, Penal Code 148(a)(1) goes beyond just running away from the police or resisting handcuffs.  You can also be charged with “resisting arrest” because of lying, threatening, and other verbal type acts.  However, keep in mind that a conviction for “resisting arrest” is very context specific. The best way to understand the complex question of “resist, delay, or obstruct” is through examples:

    • Example: After being pulled over for speeding, Miley gives the police a fake ID that lists the name “Hannah.”  Suspicious that the car might contain illegal drugs, the police search the car, find marijuana, and arrest “Hannah.”  Eventually, the police fingerprint “Hannah” and discover that her true identity is Miley and that she was previously convicted for sale and possession of illegal narcotics and auto theft.  In this example, Miley can be convicted of Penal Code 148(a)(1) because she obstructed the police in their investigation of the automobile by providing a false name.

    • Example: Now suppose that Miley was caught selling illegal drugs to an undercover police officer. During her arrest, Miley gave the police a fake name.  But the police deduced her actual name through fingerprinting when they booked her at the police station.  In this example,  Miley could not be guilty of Penal Code 148(a)(1) upon being arrested.  At that time, the police did not need to know her actual name because they caught her red handed.  However, when she was booked, the police needed to know her real name.  Thus, at the moment she was booked, she was guilty of “resisting arrest.”

Words alone can also constitute a violation of Penal Code 148(a)(1).  But you cannot be convicted for “resisting arrest” simply because you yell swear words or express anger towards a police officer.  Rather, you can be charged with Penal Code 148(a)(1) if you use “fighting words”- words that express an imminent violent threat.

  • Lawful Performance of Duties: The law enforcement officer must be performing an action that is defined within their job description. Furthermore, the law enforcement officer must be performing that action in a lawful manner.  For a police officer, this may include using reasonable force to detain a suspect or a person for questioning.  For an EMT, this may include attempting to conduct basic life support services.  Thus, if the law enforcement official is conducting an action in an unlawful manner, then you cannot be charged with Penal Code 148(a)(1).

    • Example: Officer Cheech suspects Chong of possessing an illegal firearm, but he has no basis to back up this claim. Despite the lack of probable cause or warrant, Officer Cheech goes to Chong’s home and tries to conduct an arrest.  Chong refuses to let Officer Cheech into his home and fights back any attempt to be handcuffed.  Here, Chong is not guilty of “resisting arrest” because Officer Chong was performing his legal duties in an unlawful manner.

  • Knew or Should Have Known: You cannot be convicted of Penal Code 148(a)(1) if you did not know or should not have known if the person you were resisting, delaying, or obstructing was a law enforcement officer or EMT who was at the time performing one of their legal duties. The courts will determine whether or not you “should have known” based on a reasonably prudent person standard.  This means that if a reasonable person would have known, they court will assume that you should have known.  To make this determination, the court will consider all the facts and circumstances available about the offense at the time it occurred.  For example, the court will consider whether the officer was in a uniform or plain clothed.

Taking Photos, Videos, etc. of a Law Enforcement Official

With the rise of smart phones, more people are recording and photographing law enforcement.  Consequently, prosecutors are increasingly using Penal Code 148(a)(1) to discourage people from recording law enforcement and to protect police officers.  However, the California legislature has made it clear that it is not considered “resisting arrest” to take photos or record a police officer – so long as you are in a place you have a right to be and the police officers are in a public space.  Additionally, photographing or recording a police officer is usually not a basis for the police to detain or arrest you.

Punishment

In California, “resisting arrest” is considered a misdemeanor.  A conviction for Penal Code 148(a)(1) may result into in up to 1 year in county jail and/or up to a $1,000 fine.  Additionally, a conviction for Penal Code 148(a)(1) subjects a defendant to probation.  In California, judges have the power to impose a wide range of probation conditions so long as they are related to the specific circumstances of the offense.

DEFENDING A PENAL CODE 148(a)(1) CHARGE

An experienced and diligent attorney can review the specific circumstances of your case and help you build a comprehensive legal strategy.  Part of this strategy may include utilizing a variety of legal defenses.  Common legal defenses include:

  • The resistance, obstruction, or delay occurred during unlawful police conduct. Penal Code 148(a)(1) only applies when a law enforcement officer or EMT is performing activity that is within the scope of their duties.  Thus, you cannot be found guilty of “resisting arrest” if the underlying police action was not lawful. 

    • Example: Officer Rachel arrests and handcuffs Phoebe for shoplifting. In order to teach Phoebe a lesson, Officer Rachel slams Phoebe onto the ground.  Phoebe then refuses to stand up after Officer Rachel orders her to get up.  In this example, Officer Rachel used unreasonable force.  Phoebe presented no danger to the officer or the public at that time.  Thus, by refusing to get up, Phoebe was not guilty of “resisting arrest” because Officer Rachel was acting in an unlawful manner.

    • Other examples of police misconduct include searching a home without permission or warrant, arresting someone without probable cause or a warrant, and even racial profiling.

    • Pitchess Motion: A California criminal defense attorney can file a Pitchess Motion when a law enforcement official is believed to have committed police misconduct.  If a court grants a Pitchess Motion, the Court will force the police to provide a copy of the individual officer’s personnel file.  This file contains documentation regarding all the complaints of police misconduct filed against that officer.  Armed with this information, your criminal defense attorney is in a much stronger position to negotiate a better plea bargain or even the dismissal of charges.
  • Self-Defense: You are not guilty of Penal Code 148(a)(1) for resisting against an officer who is using unreasonable force upon you.  Even against a law enforcement officer, you do not lose all your rights to defend yourself.  In order to utilize Self-Defense, your attorney must prove that you did not use more force than reasonably necessary to defend yourself from the officer and that you did not use more force than a reasonable person would have used to defend themselves in similar circumstances.  It is also important to keep in mind that if the police officer’s use of excessive force was in response to your initial physical acts of aggression, then the legal defense of Self-Defense may not be available to you.

    • Example: Officer Lebron arrests and handcuffs Melo for selling stolen jewelry.  In order to coerce Melo into revealing where his entire stock of stolen jewelry is hidden, Officer Lebron begins punching Melo in the stomach.  In response, Melo starts swinging his arms wildly to protect himself.  In this example, Melo may have a legal defense of Self Defense to any charges of “resisting arrest.”  Melo could argue that he used only the force necessary to protect himself and that it was not more force than a reasonably prudent person would have used in a similar situation.  Additionally, Melo did not start any physical confrontation.  Rather, the violent situation began when Officer Lebron began punching Melo for information.
  • False Allegations: Prosecutors might charge you with Penal Code 148(a)(1) even though your interactions with the police were nothing more than rude or flippant. The government might even trump up a “resisting arrest” allegation without any real basis to back it up.  In these cases, an experienced attorney can utilize a variety of tools to reveal the true story.  This may include developing the evidentiary record through the use of independent investigators, eyewitness testimony, Pitchess motions, and video recordings.

  • Plea Bargaining (Reducing Charges): Sometimes, there are no legal defenses that apply.  At these times, it is helpful to have a smart attorney on your side that has a strong mastery of the law and can effectively negotiate reduced charges on your behalf.  This is particularly important because a “resisting arrest” conviction can significantly impact your ability to find housing or employment in the future.

    • Example: Penal Code 414 PC (Disturbing the Peace) -California’s “Disturbing the Peace” law prohibits fighting in public or using fighting words. It is preferable to a “resisting arrest” conviction because it has a maximum jail sentence of 90 days.

Related Offenses

Depending on the specific circumstances of your case, a prosecutor might cite you with any of the following charges in addition to a “resisting arrest” charge:

  • Assault (Penal Code 240 PC): If you resisted arrest by using physical force, then a prosecutor might charge you with Penal Code 240 PC. To be charged with assault, it is not necessary that you injure the victim or even make contact with them.  In California, Assault is classified as a misdemeanor and carries with it a potential penalty of up to 1 year in jail and/or up to a $2,000 fine.

    • Example: Joker tries to kick Officer Robin, but before he can do so, Batman restrains him. In this situation, Joker can be charged with “resisting arrest” and Assault.  This is the case even though Joker did not actually succeed in kicking Robin.
  • Battery on a Police Officer (Penal Code 243(b)):

    • If you committed a battery towards a law enforcement officer, then you may also be charged with Penal Code 243(b) PC (“battery on a peace officer”). It is considered a misdemeanor with a possible penalty of up to 1 year in county jail and/or a maximum fine of up to $2,000.  However, if the police officer suffers significant bodily injury, then it is considered a felony.  In this case, the punishment is up to 4 years in prison.
  • Obstructing or Resisting an Executive Officer (Penal Code 69 PC): California law prohibits using threats or violence to prevent an “executive officer” from performing their duties. An “executive officer” is any employee who has a legal duty to enforce the law.  Hence, a police officer is considered an executive officer.  Penal Code 148 resisting arrest law is considered a “lesser included” crime to Penal Code 69.  This means you cannot be charged for both crimes.  Lastly, it is important to know that Penal Code 69 PC is considered a wobbler, which means that it could be charged as either a felony or misdemeanor – depending on the specific circumstances of the crime.

  • Evading Arrest (Vehicle Code 2800.1 and 2800.2 VC): The vehicle code actually delineates between “evading arrest” and “evading an officer.” Thus, they are technically considered two different crimes.  Evading arrest charges can be filed simultaneously as resisting arrest charges.  It is not uncommon to be charged with both crimes because if you willfully evade the police in a car, then you are most likely also “resisting arrest” as well.

  • False Reporting (Penal Code 148.3 and 148.4 PC): In California, it is a misdemeanor to falsely report an emergency (Penal Code 148.3) or to interfere with the functioning of fire alarm equipment (Penal Code 148.4 PC). This includes falsely triggering a fire alarm.  If, as a result of the false reporting, somebody gets significantly injured, then the misdemeanor converts into a felony.  Importantly, you can be charged with these crimes and Penal Code 148 “resisting arrest” due to the fact that law enforcement and safety personnel may be diverted (delayed or obstructed) from their duties as a result of your actions.

  • False Reporting of a Crime (Penal Code 148.5 PC): It is misdemeanor to knowingly and falsely report a crime.  It is possible to be charged with false reporting a crime and “resisting arrest” because the false reporting may delay or obstruct law enforcement officials from carrying out important duties.

  • False Identification to a Police Officer (Penal Code 148.9 PC): California law makes it a misdemeanor to false identify yourself to a law enforcement official.  It is most commonly seen when a suspect provides a fake name to a police officer to prevent being properly identified.  You can be charged with Penal Code 148.9 PC and “resisting arrest” simultaneously.

  • Wearing a Disguise to Evade the Police (Penal Code 185 PC): After having been charged or arrested for a crime, it is illegal to wear a mask/disguise in order to evade recognition. You can be charged with this crime and “resisting arrest” at the same time.

  • Sightseeing At the Scene of an Emergency (Penal Code 402(a) PC): California law prohibits visiting or stopping at an emergency scene.  As a misdemeanor, a conviction may result in up to 6 months in county jail.  It is not uncommon to plea bargain a “resisting arrest” charge to a Penal Code 402(a) charge.  This is because Penal Code 402(a) has less jail time and does not significantly affect a convicted person’s chances of finding future housing and employment.

Civil Rights Implications of Penal Code 148(a)(1) “Resisting Arrest” Charges

In a perfect world, you should not be charged with “resisting arrest” when a police officer is acting unlawfully or outside the scope of their legal duties.  However, in reality, this happens all the time.  Thus, you may also want to consider filing a civil rights lawsuit or a personnel complaint against the police officer involved in your case.  After all, they had the audacity to act unlawfully and still push for a “resisting arrest” charge against you.  An experienced and passionate Los Angeles criminal attorney can lead you through this process and help you send a message to the police officer that society will not tolerate their misconduct.

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