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Resisting Arrest Lawyer

Resisting Arrest Charges in San Diego

Resisting arrest is a common charge that is outlined in California Penal code 148(a)(1), it states that:

Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797 of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

Interestingly, the law covers much more than just fighting off a police officer, which is a common misconception when one thinks of resisting arrest. There are three elements that must be proven beyond a reasonable doubt by the prosecution to be found guilty of resisting arrest. However, there are applicable defenses to the charge that would have the charges dropped. In addition, there are multiple penalties one may face to a resisting arrest charge if they are found guilty of the crime. Lastly, there are some mitigating factors that could possibly lessen the penalty if they are found to be applicable to the certain situation. Thus, we will look into detail at each element, defense, penalties, and mitigating factor that is applicable to a resisting arrest charge.

Elements of Resisting Arrest in California:

There are three different elements that must be proven beyond a reasonable doubt to be found guilty of resisting arrest in the state of California. The elements are; (a) the victim was a peace officer or EMT lawfully performing or attempting to perform his or her lawful duties, (b)

the defendant willfully resisted, obstructed or delayed the performance of these duties, AND (c) when the defendant acted, he or she knew that the officer/EMT was performing a lawful duty. The elements embedded in the statute are deceiving because it would seem as if there are only three applicable elements, which is true, however, there are multiple sub-elements included in the major three that are listed. Thus, we will look at each element and break it down to see what each element really means, and what is truly necessary to fulfill each element.

A. The first element required to be fulfilled for a resisting arrest charge is that the victim was a peace officer or EMT lawfully performing or attempting to perform his or her lawful duties.

The first element required to be fulfilled for a resisting arrest charge is that the victim was a peace officer or EMT lawfully performing or attempting to perform his or her lawful duties. California Penal Code 148(a)(1). The first part of this element is that the alleged victim is a peace officer or an Emergency Medical Technician. The second part of this element that would need to be examined would be whether peace officer or EMT was lawfully performing their duties.

The most common victim of resisting arrest would be a police officer. However, it does not necessarily need to be a police officer to fulfill the requirement under this element. The legal definition of a peace officer is, any person who comes within the provisions of chapter 830 and meets all standards imposed by law on a peace officer is a peace officer. Which includes all sheriffs and deputies that work for the county. Also, all chiefs of police and police officers. In addition, this includes all harbor and safety check officers. California Penal Code 830. There is an array of positions that would fall under the title of ‘peace officer.’ However, this does also include firefighters, ambulance officers, lifeguards, which fall under the Emergency Medical Technician definition.  In addition to the regular police officer, traffic officers, and animal control officers would also fall under this category. Because of the lengthy definition, a peace officer we can see that the term is much broader than we generally think of when we think of peace officer. Therefore, the term peace officer is broad and the victim must fall under this title category for one to be charged with resisting arresting.

The second part of this first element we will look at in greater depth is whether the peace officer or EMT was lawfully performing or attempting to perform his or her duties. Stated in the California Jury Instructions is that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” California Criminal Jury Instruction 2656. This is important because it protects peace officers who are doing their job, while on the other hand in protects the citizens from peace officers who are acting outside the scope of their duty. Some examples of a peace officer acting lawfully would be lawfully detaining someone for questioning or an investigation, or a police officer making a lawful arrest. For an Emergency Medical Technician, a lawful duty may be providing medical treatment to an injured individual in need of help. If a peace officer was using excessive force in an unlawful arrest then they would not be acting lawfully within their duty and this element would not be satisfied. Thus, in regard to the first element, the peace officer or EMT must be lawfully performing their duties.

Therefore, the first element that must be fulfilled in order to be charged with resisting arrest is the victim was a peace officer or EMT lawfully performing or attempting to perform his or her lawful duties.

B. The second element that must be fulfilled in order to be charged with resisting arrest is the defendant willfully resisted, obstructed or delayed the performance of these duties.

The second element that must be fulfilled in order to be charged with resisting arrest is the defendant willfully resisted, obstructed or delayed the performance of these duties. To break this element down further we look to at what willfully means. In addition, we will also look at what resisted, obstructed, and delayed means.

The first part of the second element identifies that the defendant had to his act willfully. The definition states that someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. California Criminal Jury Instruction 2656. An example of this would be, Robert driving his car through an intersection on a green light, but as he proceeded through the intersection he pulled out in front of a police car in pursuit, with their lights and sirens on, causing a crash. Here, because Robert did not purposefully cause the crash or willfully he did not resist arrest since it was an accident. If we were to change the facts a bit and say Robert wanted his friend Dan to get away from the police, so when he saw the police coming up to the intersection he pulled out in front of them to cause an accident. Now, because Robert purposely caused the auto accident this part of the second element would be meant. Thus, the defendant had to act willfully in order to fulfill the first part of the second element.

The second part of the second element is the defendant must have resisted, obstructed or delayed the peace officer’s performance of their duties.  California Penal Code 148(a)(1). There is a vast number of different scenarios that could result in fulfilling this part of the element. The given and usual associated conduct would be physically attacking a police officer who is engaged in lawful duties. People v. Powell 99 Cal.App.2d 178 1950.  This conduct would clearly fulfill the second part of the element that we are discussing because the defendant resisted the arrest by physically attack the police officer. However, some of the conducts are not as clear as for whether they would qualify as resisting, obstructing or delaying the performance or duty. If one were to give an officer a false name, or intentionally going limp and making the officer carry or drag someone would fulfill this element. In re Bacon 240 Cal.App.2d 34 1960. In addition, running or “in flight” from an officer is sufficient enough to fulfill the second element. However, not consenting to home search may not be seen as obstructing, resisting or delaying a peace officer. People v Wetzel 113 Cal.Rptr 32 1974. Also, refusing to provide information after an arrest for a misdemeanor is not enough to satisfy the second element. People v Quiroga 20 Cal.Rptr.2d 446 1993. With so many different possibilities the action is looked at in whole. Thus, the second part of the second element is whether the defendant resisted, obstructed or delayed the peace officer’s performance of their duties. Therefore, the second element of resisting arrest is the defendant willfully resisted, obstructed or delayed the performance of these duties.

C. The last required element is when the defendant acted, he or she knew that the officer or EMT was performing a lawful duty.

The last required element is when the defendant acted, he or she knew that the officer or EMT was performing a lawful duty. This element only really has one part that is substantial to fulfilling it. The element refers to the mental state of the defendant, and questions whether they knew or should have reasonably known. Thus, this is the only part of the element we will look further into.

The main part of the third and final element is whether the defendant knew or should have knew the officer or EMT was performing a lawful duty. To determine this element the judge or jury will consider what a “reasonable person” would have been aware that the person was an officer or public official in that situation. It is judged on an objective basis. California Criminal Jury Instructions 2656. This can be a relatively straightforward element in some cases. For example, if the victim is in a police car and uniform it would be reasonable to see that this is an officer and they are performing a duty. However, it could be very different if the peace officer was undercover and wearing plain street clothes and confronted the defendant. In this situation, it may not be reasonable to suspect the victim of being an officer. This element can differ greatly depending on certain facts of the situation. Thus, whether the defendant knew or should have known is essential to the last element. Thus, the final element required to be charged with resisting arrest is when the defendant acted, he or she knew that the officer or EMT was performing a lawful duty.

Therefore, the elements that must be proven beyond a reasonable doubt to be charged with resisting arrest are; the victim was a peace officer or EMT lawfully performing or attempting to perform his or her lawful duties, the defendant willfully resisted, obstructed or delayed the performance of these duties, AND when the defendant acted, he or she knew that the officer/EMT was performing a lawful duty.

Possible Defenses to a Resisting Arrest Charge

If one is charged with resisting arrest there are possible defenses that may be applicable to the situation, which would, in turn, make them not guilty of resisting arrest and have the charged dropped. (a) The fact that the peace officer was not engaged, or attempting to be engaged in a lawful duty. (b) In addition, a possible defense is that the defendant acted in self-defense. (c) Lastly, a defense of false allegations would dismiss the charge of resisting arrest. Thus, there are multiple defenses that may be applicable to different situations to a resisting arrest charge.

A. The first defense that the peace officer was not engaged, or attempting to be engaged in a lawful duty.

The first defense that the peace officer was not engaged, or attempting to be engaged in a lawful duty. This defense falls into the police misconduct realm. “Before a person can be convicted of [a violation of section 148, subdivision (a), for resisting arrest] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed." In re Joseph F. (2000) 85 Cal.App.4th 975. Examples of an unlawful duty or police misconduct would include, arresting the defendant without a warrant or probable cause, or entering someone’s home without a warrant or permission. In addition, if the peace officer used unreasonable force would qualify as police misconduct. To use this defense, it essentially questions the peace officer’s behavior. But if the officer was engaged in illegal activity or conduct then the defendant cannot be guilty of resisting arrest because the first element has failed. Thus, the peace officer was not engaged, or attempting to be engaged in a lawful duty is an applicable defense to resisting arrest.

B. The next possible defense to resisting arrest is that the defendant was acting in self-defense.

The next possible defense to resisting arrest is that the defendant was acting in self-defense. Self-defense is usually in response to excessive force used by the peace officer. The basic law that would govern this defense is, “If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest, or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself.” California Criminal Jury Instructions 2670. The judge or jury will look at the specific facts and circumstances of the situation and decide what a person in that situation would have felt threatened or fear by the actions of the officer, and if so were they reasonable. If this is all so than the defense would be applicable and one would not be guilty of resisting arrest.

However, it is crucial that the defendant did follow the California Self-defense law which states, you used no more force than you believed was reasonably necessary to protect yourself from the officer, and you used no more force than a reasonable person in the same situation would have believed was necessary to protect him or herself. Because it would be illegal to use more force than necessary the defense would not be applicable if one acted outside the scope of their right. Thus, self-defense is a possible defense to a resisting arrest charge.

C. The last defense to resisting arrest discussed is that the allegations were false.

The last defense to resisting arrest discussed is that the allegations were false. It is a sad truth that sometimes peace officers may want revenge or act with anger and may charge someone with resisting arrest just because they were uncooperative or rude. The ways to prove that the charges against one are false could be from eye-witness testimony or video recordings if possible. Or continuing questioning the officers tell the story becomes different, which would show holes in their testimony if there are no other means to bring light on the truthful facts. Thus, false allegations would be a defense to a resisting arrest charge.

Penalties to Resisting Arrest in San Diego 

There is an array of penalties that could be applicable to a resisting arrest charge. The maximum penalty for resisting arrest is, one could be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. California Penal Code 148(a)(1). Because the punishment of jail time not exceeding one year, the crime is a misdemeanor and not a felony. However, this is still not a minor charge because one does not want this crime on their record because it could possibly be a libel that one is potentially violent and may even set a negative tone for all future police encounters.

Mitigating Factors to Consider for Resisting Arrest in San Diego

A mitigating factor is something that may lessen the sentence of the crime. For example, if drugs or alcohol is involved it may be possible to go to an addiction help program instead of going to jail. In addition, the circumstances are unusual and the judge or jury feels sympathy toward the defendant the sentence may not be as harsh. Lastly, if one does not have a previous criminal record the court may see the actions as a mistake and be lighter on the person because of that. Thus, there are some possible mitigating factors. 

Resisting Arrest Criminal Lawyer in San Diego

There are three elements to a resisting arrest charge. However, there is an array of defenses to the charge. The penalty for resisting arrest is at most one year and thousand-dollar penalty. It is important that you hire a lawyer that is familiar in fighting these charges on a daily basis. Attorney Vik Monder has handled hundreds of resisting arrest charges throughout San Diego and has obtained Not Guilty verdicts to Dismissals for his clients.

Contact San Diego Resisting Arrest Lawyer Vik Monder for a FREE consultation today at: 619-405-0063

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063

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