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Criminal Defense Information for Resisting Arrest (Cal. Penal Code s. 148)

  1. What is Resisting Arrest?
  2. What are the necessary elements to be found guilty of Resisting an Officer or Resisting Arrest?
  3. What is the sentence / punishment for Resisting Arrest or Resisting an Officer?
  4. What are possible defenses to charges of Resisting Arrest or Resisting an Officer?
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    What is Resisting Arrest?

    Resisting Arrest is really a specific instance of resisting public officers, peace officers, or emergency medical technicians in the discharge of their duties. Cal. Pen. Code s. 148 Opens in New Window. Anytime a person willfully resists, delays or obstructs any person listed above while that person is attempting to perform his job duties, the person is guilty of violating this section.

    This section also pertains to anyone who takes a gun (Cal. Pen. Code s. 148 (c) Opens in New Window) or other weapon (Cal. Pen. Code s. 148 (b) Opens in New Window) from an officer while resisting that officer.

    Also covered in this section is the willful interference with the transmission of a communication over public safety radio frequencies. Cal. Pen. Code s. 148 (a)(2) Opens in New Window.

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    What are the necessary elements to be found guilty of Resisting an Officer or Resisting Arrest?

    To prove the defendant Resisted an Officer or EMT, the state must show that the defendant:

    1. Willfully, resisted, delayed, or obstructed;
    2. Any public officer, peace officer, or emergency medical technician (EMT); and
    3. While the officer was attempting to discharge his duties.

    Cal. Pen. Code s. 148 (a)(1) Opens in New Window.

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    What is the sentence / punishment for Resisting Arrest or Resisting an Officer?

    In general, resisting an officer or resisting arrest is a misdemeanor punishable by up to one year in jail and/or $1,000 fine. Cal. Pen. Code s. 148 (a)(1) Opens in New Window.

    If the defendant takes a weapon other than a gun from the officer while resisting, the sentence can be either up to one year in jail (a misdemeanor) or it can be deemed a felony and will be sentenced according to Cal. Pen. Code s. 1170(h) Opens in New Window, taking into account the defendant's prior history.

    If the defendant takes a firearm from the officer while resisting, the crime will be a felony and the defendant will be sentenced according to Cal. Pen. Code s. 1170(h) Opens in New Window, taking into account the defendant's prior history.

    If the defendant attempts to take a firearm from the officer while resisting, the sentence can be either up to one year in jail (a misdemeanor) or it can be deemed a felony and will be sentenced according to Cal. Pen. Code s. 1170(h) Opens in New Window, taking into account the defendant's prior history.

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    What are possible defenses to charges of Resisting Arrest or Resisting an Officer?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    If the prosecutor can prove all the elements of Resisting, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). For Resisting an Officer, some of these justifications include:

    • Self-Defense;
    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Excessive Force.
See also, Evading an Officer.