Resisting Arrest: California Penal Code 148

The image that comes to mind when one hears the term "resisting arrest" is that of a struggling man fighting attempts to handcuff him. It may be in part that because not all acts of resisting arrest are physical in nature, the charge of "resisting arrest" can be one of the most misunderstood and abused of all offenses. Surprising to some, giving false identification to a police officer, or ignoring a police officer's order to stop interfering with an ongoing investigation has resulted in resisting charges. From the law enforcement standpoint, a charge of "resisting" may be an expedient means of making an arrest when no other reason for the action is readily apparent.

Penal Code 148

What is commonly called "resisting arrest" is, in legal terms, a violation of California Penal Code 148 and is a misdemeanor offense. The statute outlines three elements that must be proven in order to convict an individual of resisting arrest. The prosecution must prove:

  • The victim was a peace officer/public officer/EMT lawfully performing or attempting to perform his or her official duties; and
  • The defendant willfully resisted/obstructed/delayed the victim in the performance or attempted performance of those duties; and
  • When the defendant acted they knew, or reasonably should have known, that the victim was a peace officer/public officer/EMT performing or attempting to perform his or her duties

As with all criminal charges, the burden is "beyond a reasonable doubt." Because this standard applies to every element of the charge, a successful defense might lie in the ability to establish that the arresting officer was not lawfully performing his duties. Thus the first element of the statute was not proven beyond a reasonable doubt. For example, as occasional stories on the evening news suggest, there have been instances where officers did not "lawfully perform or attempt to perform his or her official duties" when making an arrest unlawfully by using unreasonable or excessive force.

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