Attorney for Santa Rosa, San Rafael, Napa, Lakeport, Ukiah and Eureka

The Basics

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 lawful duties.

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)

Background Notes

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:

A. Willfulness

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 obstructing. [1]

EXAMPLE:

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.

ANALYSIS:

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.

B. 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 his duties?

EXAMPLES

1. Physical
2. Hiding from law enforcement
3. Running from law enforcement
4. Physically struggling with officers
5. Going limp when arrested, forcing officers to drag or carry you [2]
6. Non-Physical
   1. Purposefully disregarding instructions given by a law enforcement officer [3]
   2. Distracting a law enforcement officer [4]
   3. Attempting to intimidate a suspected victim into denying an offense [5]
   4. Interfering verbally with an investigation

C. Of a Peace Officer, Public Officer or EMT

Peace Officers

The category of peace officer is fairly broad. It is not simply limited to law enforcement. Examples include:

1. County fish and game wardens [6]
2. Juvenile Court Probation Officers [7]
3. Various officers of the Department of Transportation [8]
4. College or School Campus police officers

Public Officers

These are individuals holding public office.

EMTs

For someone to qualify as an EMT under this law, they must hold a valid EMT certification. [9]

D. 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.

E. Knowledge Requirement

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." [10]

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. [11]

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.

1. Your arrest was unlawful
   The prosecution has the burden of proving beyond a reasonable doubt that your arrest was lawful. [12] 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.'" [13]
2. 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. [14]
3. 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 duties or was not engaged in an official duty.
4. The person attempting to arrest you in question was not an "officer" under this law's definition
5. You could not have reasonably known the officer in question was an officer
   This would show that the knowledge requirement was not satisfied.

III- Punishment

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, or both.

Actual punishment in each case is decided by:

1. agreement between your criminal defense attorney and the district attorney (and generally approved by the judge), or
2. 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
3. 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
• Lakeport-707-262-0503
• 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

(a)

1. 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.
2. 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:

1. The officer's holster strap was unfastened by the defendant.
2. The firearm was partially removed from the officer's holster by the defendant.
3. The firearm safety was released by the defendant.
4. An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm.
5. 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.
6. The defendant's fingerprint was found on the firearm or holster.
7. Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
8. 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.