Is Resisting Arrest a Felony?

No, resisting arrest is not a felony in California. Resisting arrest is classified as a misdemeanor punishable by up to one year in jail and/or a $1000 fine. Every person who willfully resists, delays, or obstructs a peace officer in the performance of their duties can be charged with resisting arrest.

If a person actively resists arrest, then District Attorney`s office may charge additional crimes such assault on a police officer, California Penal Code section 241(c), or battery on a police officer, California Penal Code section 243(b) or 243(c). Assault is normally punishable by a maximum of 6 months jail, but assault on a peace officer has a maximum of one year in the county jail. Battery is normally punishable by a maximum of 6 months jail, but battery on a peace officer is a wobbler. If charged as a misdemeanor, then maximum penalty is one year county jail; if charged as a felony, the maximum punishment is three years state prison.

If a person actively resists a police officer in the performance of their duties and that willful resistance proximately causes death or serious bodily injury to the peace officer, then the person can be charged with Penal Code section 148.10, which is a wobbler, punishable up to one year in the county jail as a misdemeanor and up to four years state prison as a felony.

Possible Defenses for Resisting an Arrest

Although this crime is commonly known as “resisting arrest,” it applies to situations where a person merely delays an officer or disobeys an officer`s instructions. For example, if a police officer lawfully told you to put your hands behind your back, and you refused to do so, you could be charged with this crime.

It is rare for this crime to be charged by itself since the police must have a legitimate reason for arresting you in the first place. This crime will often accompany a charge of DUI or drunk in public since people who are intoxicated will not follow commands very well.

In order for the prosecution to prove resisting arrest, they must show each of the following elements, beyond a reasonable doubt:

1. The victim was a peace officer lawfully performing (or attempting to perform) his duties
2. The defendant willfully resisted / obstructed / delayed the officer in the performance of his duties; and
3. The defendant knew, or reasonably should have known, the victim was a peace officer performing his duties

Someone commits an act willfully when they do it intentionally, or on purpose. It is not required that the defendant intend to break the law, hurt someone or gain an advantage. A peace officer is NOT lawfully performing his duties if he is unlawfully arresting someone or unlawfully detaining someone or using unreasonable or excessive force in the performance of his duties.

Sometimes the police are too rough when arresting a suspect and use excessive force. When excessive force is used, a person has the right to defend themselves and that personal defense does not constitute resisting arrest. However, the police will always report that you were the one that started threatening or fighting them and they had to use minimal force to subdue you.

In cases where excessive force has been used, we can file a Pitchess motion which is a request for an officer’s personnel records to determine if he has other complaints for excessive force in the past.

Other Consequences for Resisting an Arrest

Not only can a resisting arrest conviction lead to criminal penalties, but it can also have drastic employment, licensing and immigration consequences. Having a resisting arrest conviction can prevent a person from finding a job or lead to a person being fired from their current job. Furthermore, many professions that require licensing from a state board, such as doctors, nurses, lawyers, contractors, teachers, real estate agents and stock brokers, all require background checks.

A professional who has a resisting arrest conviction on their record risks losing their professional license, or never acquiring it in the first place. Perhaps the most severe impact of a resisting arrest conviction involves immigration consequences. Non-citizens who are permanent residents (green card holders) or temporary visitors, with a visa, can be denied admission, naturalization or even deported, with resisting arrest conviction on their record. However, resisting arrest covers such a broad range of conduct – some conduct may have more serious immigration consequences than other conduct.

Right Choice Laws Resisting an Arrest Legal Counsel

Choosing the right criminal defense lawyer will be the most important decision someone can make when facing a resisting arrest charge. Many people who face resisting arrest charges are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of resisting arrest, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need an attorney like Fred Thiagarajah.

As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients. For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.