Attorney for Santa Rosa, San Rafael, Napa, Lakeport, Ukiah and Eureka
California Penal Code §148(a)(1) or " resisting arrest "
is divided into two parts.
The first section addresses interfering with, resisting or obstructing
a public officer, peace officer or emergency medical technician (EMT)
while they are engaged in their
The second section deals with a person taking a weapon from a public or
peace officer (whether or not the weapon is on the officer's body)
and is not discussed in this article.
Resisting Arrest -California Penal Code §148(a)(1)
Arguably, the most common violation of this law is resisting arrest. Still,
it is important to remember that this law is much broader than that, since
it applies to interference with
any public officer in the process of lawfully doing his or her job. What's more, the crime
is broader than just resisting, as it also includes both "interference"
and "obstruction." So keep in mind that something, such as intentionally
preventing an ambulance from reaching an injured person, could be considered
a violation of this law as well.
I - Elements of the Crime (What it takes to be convicted)
To be convicted of resisting under this law, the prosecution must show
beyond every reasonable doubt that you (1) willfully, (2) resisted, delayed
or obstructed, (3) a public officer (4) in the process of discharging
or attempting to discharge some official duty.
Let's look at each of these, one by one:
An act is done "willfully" if it is done on purpose. In this
case, the act that must be done on purpose is resisting, delaying, or
After getting into a fight with members of an opposing softball team, Jeff
and several of his teammates are told they are under arrest. Jeff, still
angry and upset, tries to explain why the fight was not his fault. As
he is pleading his case using animated hand gestures, officers descend
on him from all directions. Jeff, unaware that there is a police officer
behind him, accidentally hits the officer in the face.
Jeff's actions here cannot be considered willful. Even if the fact
that he hit the officer delayed or, in some way, obstructed his arrest,
he did not hit the officer for that purpose. It was not "willful"
and it was not "intentional" and, therefore, he is not guilty.
Had Jeff hit the officer for the purpose of delaying his arrest, he may
then be guilty of resisting arrest. Experienced criminal defense attorneys
in our offices in Santa Rosa, San Rafael, Napa, Ukiah, Lakeport and Eureka
can provide great insight to these types of defenses regarding the required
elements of the crime.
Resistance, Delay, or Obstruction
Resistance, delay and obstruction are fairly straightforward terms in this
case. Essentially, ask yourself the question, did you somehow get in the
way of or interfere with the officer while he was attempting to discharge
- Hiding from law enforcement
- Running from law enforcement
- Physically struggling with officers
Going limp when arrested, forcing officers to drag or carry you
Purposefully disregarding instructions given by a law enforcement officer
Distracting a law enforcement officer
Attempting to intimidate a suspected victim into denying an offense
- Interfering verbally with an investigation
Of a Peace Officer, Public Officer or EMT
The category of peace officer is fairly broad. It is not simply limited
to law enforcement. Examples include:
County fish and game wardens
Juvenile Court Probation Officers
Various officers of the Department of Transportation
- College or School Campus police officers
These are individuals holding public office.
For someone to qualify as an EMT under this law, they must hold a valid
When They are Discharging or Attempting to Discharge an Official Duty
It is important to remember that even if you willfully resisted, delayed,
or obstructed a Peace Officer, Public Officer or Public Official, the
prosecution must still prove that the officer in question was discharging
or attempting to discharge an official duty.
To be convicted of this crime, the prosecution must demonstrate that you
either knew, or should have known, that the officer in question was, in
fact, an officer. As one court reasoned:
"Before one can be found culpable, however, he or she must know, or
through the exercise of reasonable care should have known, that the person
attempting to make the arrest is an officer. Otherwise the statute is
overbroad. It would make mere flight or fear of capture an offense."
Multiple Officers Can Mean Multiple Charges of Cal. Penal Code §148(e)
It is crucial to note that you may be charged more than once if your interference
involves more than one officer.
II- Defenses in Santa Rosa, San Rafael, Napa, Ukiah, Lakeport and Eureka
It is important to understand that qualified, experienced criminal defense
attorneys will give each client the very best chance of taking advantage
of all available defenses.
Your arrest was unlawful
The prosecution has the burden of proving beyond a reasonable doubt that
your arrest was lawful.
 If law enforcement unlawfully arrested you in the first place, they are
not lawfully discharging their duties. "The rule flows from the premise
that because an officer has no duty to take illegal action, he or she
is not engaged in 'duties.'"
Your resistance was in self-defense to law enforcement's excessive force
The use of excessive force when conducting an arrest makes that arrest
unlawful. Since the arrest is considered unlawful, it cannot be considered
part of an officer's official duties. In addition, you may use reasonable
force in self-defense when an officer uses excessive force.
The public officer in question was not attempting to discharge an official duty
If the officer tried to exercise authority beyond his or her official
was not engaged in an official duty.
- The person attempting to arrest you in question was not an "officer"
under this law's definition
You could not have reasonably known the officer in question was an officer
This would show that the knowledge requirement was not satisfied.
A violation of Penal Code Section 148 may be punished by a fine of as much
as $1,000, imprisonment in a county jail for up to a year,
Actual punishment in each case is decided by:
- agreement between your criminal defense attorney and the district attorney
(and generally approved by the judge), or
- by the judge after an "open" plea agreement in which the crimes
to which the defendant will plea "guilty" or "no contest"
to are agreed upon but no agreement exists as to the punishment, or
- by the judge after a trial in which a defendant is found guilty of one
or more crimes.
Remember, Ronald Dinan and Associates, experienced and aggressive criminal
defense lawyers, can help in achieving the best outcome in your case.
Many times dispositions in a criminal case will include reduction or outright
dismissal of the number and severity of criminal charges, diversion programs,
probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your legal matter, we invite you to call us
at one of our conveniently located offices to discuss your case. We answer
all telephone calls in a polite, professional and helpful manner.
- Santa Rosa- 707-571-5550
- Napa - 707-252-0102
- Marin- 415-491-0223
- Ukiah- 707-462-5950
- Eureka- 707-445-1348
The Law Itself: California Penal Code Section 148
§ 148. Resisting public or peace officers or emergency medical technicians
in discharge of their duties; Removal of weapon from person or presence
of public or peace officer
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.
- Except as provided by subdivision (d) of Section 653t, every person who
knowingly and maliciously interrupts, disrupts, impedes, or otherwise
interferes with the transmission of a communication over a public safety
radio frequency shall be punished by a fine not exceeding one thousand
dollars ($1,000), imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment.
(b) Every person who, during the commission of any offense described in subdivision
(a), removes or takes any weapon, other than a firearm, from the person
of, or immediate presence of, a public officer or peace officer shall
be punished by imprisonment in a county jail not to exceed one year or
pursuant to subdivision (h) of Section 1170.
(c) Every person who, during the commission of any offense described in subdivision
(a), removes or takes a firearm from the person of, or immediate presence
of, a public officer or peace officer shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170.
(d) Except as provided in subdivision (c) and notwithstanding subdivision
(a) of Section 489, every person who removes or takes without intent to
permanently deprive, or who attempts to remove or take a firearm from
the person of, or immediate presence of, a public officer or peace officer,
while the officer is engaged in the performance of his or her lawful duties,
shall be punished by imprisonment in a county jail not to exceed one year
or pursuant to subdivision (h) of Section 1170. In order to prove a violation
of this subdivision, the prosecution shall establish that the defendant
had the specific intent to remove or take the firearm by demonstrating
that any of the following direct, but ineffectual, acts occurred:
- The officer's holster strap was unfastened by the defendant.
- The firearm was partially removed from the officer's holster by the
- The firearm safety was released by the defendant.
- An independent witness corroborates that the defendant stated that he or
she intended to remove the firearm and the defendant actually touched
- An independent witness corroborates that the defendant actually had his
or her hand on the firearm and tried to take the firearm away from the
officer who was holding it.
- The defendant's fingerprint was found on the firearm or holster.
- Physical evidence authenticated by a scientifically verifiable procedure
established that the defendant touched the firearm.
- In the course of any struggle, the officer's firearm fell and the defendant
attempted to pick it up.
(e) A person shall not be convicted of a violation of subdivision (a) in addition
to a conviction of a violation of subdivision (b), (c), or (d) when the
resistance, delay, or obstruction, and the removal or taking of the weapon
or firearm or attempt thereof, was committed against the same public officer,
peace officer, or emergency medical technician. A person may be convicted
of multiple violations of this section if more than one public officer,
peace officer, or emergency medical technician are victims.
(f) This section shall not apply if the public officer, peace officer, or
emergency medical technician is disarmed while engaged in a criminal act.
 Cal Penal Code § 7, Judicial Council of California Criminal Jury
Instructions: 2-2600 CALCRIM 2656
In re Bacon, (1966) 240 Cal. App. 2d 34
In re Muhammed C., 95 Cal. App. 4th 1325
In re Muhammed C., 95 Cal. App. 4th 1325
People v. Green (1997) 51 Cal.App.4th 1433, 1438 [59 Cal.Rptr.2d 913]
 Cal Fish & Game Code § 878
 Cal Welare & Inststitutions Code § 283
 Cal Vehicle Code § 23252
 Cal Health & SafteyCode § 1797.80
People v. Lopez, (1986) 188 Cal. App. 3d 592, 599
 Cal. Penal Code §148(e): "A person may be convicted of multiple
violations of this section if more than one public officer, peace officer,
or emergency medical technician are victims."
People v. Castain, (1981) 122 Cal.App.3d 138, 145
People v. Simons, (1996) 42 Cal. App. 4th 1100
People v. White, (1980) 101 Cal.App.3d 161, 168