Thanks to Hollywood films, many understand "resisting arrest" as physical struggles with police officers when they attempt to arrest individuals and place them in handcuffs. Whereas this action can be interpreted as resisting an arrest, it is but one aspect of resisting an arrest.

Penal Code 148 defines resisting an arrest as willfully resisting, obstructing, or delaying peace officers or emergency medical responders from performing their official duties. The offense is a misdemeanor punishable by a jail sentence or a fine if found guilty.

Resisting Arrest Charges Under California Law

In breaking down Penal Code 148’s definition of the crime, an action only becomes an offense when you resist, delay, or obstruct a peace officer, public official, or an emergency medical technician (EMT). From this, it is easy to conclude that under California law, resisting arrest is not restricted to the interaction with a police officer, nor is it what we typically understand resisting to mean, which in most cases is a physical act or struggle with an officer. 

PC 148’s definition provides the elements the prosecution must prove to secure your conviction. Prosecutors must prove that you:

  • Willfully resisted, obstructed, or delayed a police officer or an EMT
  • Acted when a police officer, peace officer, or an EMT was discharging his/her official duties
  • Knew or should have reasonably known that the officer or EMT was performing his/her official duties

Therefore, other than obstructing an officer from discharging his/her official duties, the following activities will result in prosecution for a PC 148 violation.

  • Obstructing peace officers from interviewing witnesses to a crime
  • Interfering with an officer’s travel or access to a crime or an accident scene
  • Attempting to interfere with officers monitoring a suspect in custody

Note: For purposes of Penal Code 148, college campus security personnel and mall cops are not police officers nor public officers.

Examples of Resisting Arrest

Let us look at three scenarios to help better understand resisting arrest.

Obstructing an EMT

Emotions are especially heightened at accident scenes. Consider a scenario where an emergency medical technician is attending to a crash victim. One of the victims, James, approaches the EMT and berates her while blaming the injured for the crash. His actions visibly distract the EMT.

Though visibly upset and reacting to the situation, by distracting the EMT from rendering immediate aid to the injured victim, James is guilty of a PC 148 violation. 

Suspects in DUI Incidents

Consider a situation where an individual is pulled over for a suspected DUI offense. He submits to sobriety tests and even blows into a breathalyzer with no incident. The test results confirm that he was under the influence, and at that moment, he decided to flee the scene on foot. The officers chase and arrest him. The officers face no resistance or struggle from the individual. He complies with the officer's instructions and is handcuffed.

Is the individual in violation of PC 148?

Yes, he is. He delayed and obstructed officers from discharging their mandate by fleeing the scene.     

Offering False Testimony to Police Officers

Whereas giving false testimony to police officers violates other statutes like PC 118.1, prosecutors can pursue PC 148 charges. The change is appropriate when you consider the false testimony delayed the investigation.

Defenses You Can Assert to Challenge a Resisting an Arrest Charge

Attorneys have various defenses they can assert to challenge a PC 148 violation. Their choice of a winning strategy is based on the circumstances of your case. Some of the common defenses include:

No Willful Act

Prosecutors bear the burden of proving your actions were willful. A lack of intentional action, for example, in accidents or inadvertent conduct, does not amount to willful action. This is despite the acts delaying, obstructing, or interfering with an EMT or a peace officer's discharge of official duties.

The police department is liable for civil liability for profiling, excessive force, or other grounds should a judge dismiss a resisting arrest case. Thus, prosecutors are significantly invested in ensuring a defendant is convicted to avoid civil lawsuits. Therefore, do not be surprised when prosecutors include additional offenses on your charge sheet.   

Lack of Probable Cause

The Fourth Amendment protects you from unlawful arrest. A police officer should have probable cause before arresting you for an offense.

A police officer should have a reason to arrest you that is more than suspicion but not to the extent that you indeed committed an offense. Their basis for apprehending an individual should be reasonable in the context of the totality of the circumstances that led them to believe a crime was committed. Only then is an arrest considered lawful.

Note: The Fourth Amendment encompasses illegal searches.

This defense is appropriate if you were stopped or arrested and subsequently charged with a PC 148 violation without probable cause. Any evidence obtained from an illegal arrest will be excluded from the case, resulting in a dismissal or a reduction of your charges.   

Ultimately, with evidence thrown out, it is more difficult for the prosecution to prove you are guilty of resisting an arrest beyond a reasonable doubt.   

You Were Falsely Accused

Police officers are not immune to personal biases affecting their decisions. In some cases, their biases cause them to make hasty decisions to arrest individuals, claiming the defendant resisted arrest. Sadly, many have been accused of resisting an arrest for merely seeking an explanation for why they are being arrested or for the police officer stopping and questioning him/her.

Police misconduct, use of excessive force, and racial profiling are the leading causes of false accusations by police officers.  

Police misconduct takes different forms. Some of them include:

  • False arrests — An arrest becomes illegal when the officer has no legal authority to effect it. Examples of situations where arrests are unlawful include cases where police use an invalid arrest warrant to make an arrest, effecting an arrest without a warrant. 
  • Unlawful detention — It is important to note that officers can briefly detain suspects to search or question them. However, the arrests become illegal when they are unreasonably long, lack probable cause, and are invalid, and the officers know that. Additionally, when officers use excessive force, or it is established that they could not have had a reasonable suspicion of a crime when they detained the suspect, the detention is illegal.    
  • Use of excessive force — You are a victim of excessive use of force by police officers when said officers use unreasonable force to arrest you. This means officers are only allowed to use reasonable force. The courts consider the following factors in determining whether the officer used appropriate or unreasonable force:
  1. The seriousness of the crime the defendant is suspected of committing
  2. Whether the defendant posed an immediate danger to others or the officers
  3. Whether the defendant attempted to flee from the officers or resisted an arrest
  • Racial profiling — Many individuals have been arrested and prosecuted because of an officer’s racial bias. The assumption that a particular race is predisposed to committing an offense or that a particular race commits specific crimes misleads officers investigating a crime.
  • Perjury — It is not uncommon for police officers to lie under oath during the trial, in police reports, while offering testimony in grand jury proceedings, or in affidavits in search or arrest warrants to support their probable cause claim.

Experienced attorneys conduct independent investigations to establish the facts of the case. They will gather witness statements and bodycam footage to challenge the allegations using any of the above grounds verified by the investigations to the court to challenge the resisting arrest charge.  

In other situations, the attorney will file a Pitchess motion to obtain an officer’s personnel file to establish a pattern of misconduct, thus submitting to the court that you are another victim of the officer’s unprofessional behavior. 

Self Defense

Self-defense is a viable defense. However, in this case, you must prove that it was in defense against the excessive force used by the arresting officer.

The courts allow for the use of this defense. However, in adherence to the following standards or restrictions,

  • You used force that was no more than necessary to protect yourself, and
  • You used force that a reasonable person would consider necessary to protect yourself given the circumstances 

Note: Self-defense is more viable if you can prove that the initial arrest was illegal, for example, when officers use excessive force.

Penalties Outlined Under PC 148

PC 148 violations are misdemeanor offenses. Therefore, convictions result in misdemeanor penalties that include:

  • A jail sentence of up to one year,
  • A fine not exceeding $1,000, or both.

Defendants can also be sentenced to probation instead of spending time in jail. However, the judge will issue summary probation conditions if you qualify and it is in the interest of justice.

It is also worth pointing out that though resisting an arrest is a misdemeanor, the courts consider the offense serious.

Note: In practice, the Los Angeles County D.A.’s office does not prosecute PC 148 violations unless:

  • The suspect used physical force against the officer
  • The suspect is a repeat offender within the last 24 months
  • The crime is filed in connection with an offense the D.A.’s office normally prosecutes  

Offenses Related to Resisting Arrest  

There are three offenses related to resisting arrest, namely,

  • Resisting an officer, an offense under PC 69 
  • Assault, which is a PC 240 violation, and
  • Battery on a peace officer, an offense under PC 243(b) and 243(c)  

    a) Resisting an Executive Officer

Anyone who uses violence or threats to prevent executive officers from discharging their duties violates PC 69. 

Resisting an executive officer is closely related to resisting an arrest. It can also be mistaken for an arrest. The following are examples of actions that meet the crime threshold of PC 69.

  • Blocking a state employee from accessing his/her office
  • Pushing an officer who attempts to arrest you for a crime

From PC 69’s definition, any act that prevents an officer from discharging their duties amounts to an offense, as illustrated in the first example. The second scenario is an example of resisting, which also meets PC 69’s definition of an offense.

Prosecutors will have to prove the following for you to be found guilty of an offense. He/she must prove that:

  • You attempted to prevent an executive officer from discharging their official duty, or
  • You resisted an executive officer’s attempt to perform his/her duties

Prevention Offense

It must be clear to the jury that you willfully and illegally threatened to use violence or used violence to prevent an officer from discharging their official duties. Further, the prosecution must prove that your actions were intentional. Only then will you be found guilty of a prevention offense under PC 69.

Resistance Offense

As for a resistance offense, you are only guilty if the following elements are proven true in your case.

  • You unlawfully used violence or force to resist an executive official
  • You acted when the office was performing a lawful duty, and
  • At the time of your action, you knew the officer was discharging his/her official obligation

Note: For purposes of PC 69, an executive officer is a government official discharging government-assigned tasks. Examples of executive officers include judges, police officers and sheriffs, elected officials, government prosecutors, and other government employees. 

Penalties for Resisting an Executive Officer

PC 69 violations are wobbler offenses. You can be charged with a misdemeanor or a felony.

Misdemeanors are punishable by up to one year in jail and a maximum fine of $10,000. If convicted on felony charges, you will be sentenced to a maximum of three years in jail and be hit with a fine of up to $10,000.

     b) Assault

It is a crime under Penal Code 240 to unlawfully attempt, coupled with a present ability to inflict violent injury on another individual. The focus of this charge is on victims who are peace officers, EMTs, or government officials.

Prosecutors can only secure a conviction if they prove the following case elements.

  • You acted and, by the very nature of your actions, could have directly applied force to another.
  • You acted willfully.
  • When you acted, you knew that your actions would likely lead a reasonable individual to conclude that such action would directly and probably cause the application of force to an individual.
  • You had the ability to apply force when you acted.

Assault is different from battery. The two are often confused and used interchangeably. The distinction is between the present ability to inflict injury and an actual act that results in injuring the victim.

An act is an assault if said action has the potential to result in physical harm or unwanted contact with the victim. However, the action becomes a battery when an act inflicts violence on the victim.  

Penalties of an Assault n an Emergency Personnel or a Peace Officer 

PC 240 is a misdemeanor punishable by a 6-month jail sentence and a possible fine of $1,000.

However, the penalties increase if the assault victim is a peace officer or an EMT. A conviction results in a one-year jail sentence and a maximum fine of $2,000.    

     c) Battery on a Peace Officer

Any willful and illegal touching of a peace officer or other protected official in an offensive or harmful manner is a crime.  

Prosecutors must prove that:

  • The alleged victim was a peace officer or a protected individual who was performing their official duties
  • You willfully and illegally touched the victim in an offensive or harmful manner
  • When you acted, you reasonably knew or should have been aware that the victim was an on-duty police officer or other protected individuals. 

Protected individuals under this statute include:

  • Custodial officers
  • Police officers
  • Lifeguards
  • Firefighters
  • Process servers
  • Animal control officers
  • EMTs and paramedics
  • Process servers
  • Doctors and nurses offering medical aid
  • California highway patrol officers

Note: Slight touch is enough to result in a conviction under PC 243(b) and 243(c). It should, however, be done in an aggressive manner or rudely. Further, indirect contact will also result in you facing charges for violating this statute.

Penalties for Battery on a Peace Officer

Penal Code 243 violations are misdemeanor offenses punishable by up to one year in jail and a fine of no more than $2,000.

However, should the battery cause physical injury that requires medical treatment, the offense becomes a wobbler. If convicted on misdemeanor charges, the penalties remain the same as outlined above.

Prosecutors are likely to pursue felony charges if the circumstances of your case warrant a felony charge or you have a prior conviction. If convicted, you will likely serve up to three years in jail and pay a maximum fine of up to $10,000.

Contact a Los Angeles Criminal Defense Attorney Near Me

Criminal prosecution is challenging, and the risk of serving time behind bars is always a possibility defendants have to contemplate. Having understood what being arrested means under California law and the penalties if convicted, it is in your best interest to engage an experienced attorney for assistance if you or a loved one faces a PC 148 violation. We are ready to offer legal advice and representation at Los Angeles Criminal Lawyer. Contact us at 310-502-1314 today.