What Is Resisting Arrest under PC 148(a)(1)?
This charge is often alleged with other charges, so the focus of the prosecution is more often than not the other charges, such as DUI, domestic violence, a sex offense or a drug offense.In a Nutshell: Resisting, obstructing or delaying arrest or an EMT is a common offense under Penal Code § 148(a)(1) when the officer affected is not injured. It often arises in the context of a DUI or domestic violence matter. The most effective defense is to show the officer or EMT was acting outside the scope of his proper duties, so defendant’s conduct was reasonable.
However, it is important to understand exactly what must be proven by the facts for the prosecution to convict a defendant of violating section 148(a)(1). “Willfully” means on purpose. It does not mean that the defendant realizes his conduct is illegal; only that he intended to resist, delay or obstruct an officer or EMT.
“Resist, delay or obstruct” is fairly self-explanatory, but some examples are helpful. Obviously, fighting with a police officer to prevent being handcuffed or placed in a jail cell suffices (it may also be a violation of Penal Code § 243). Leading a police car, with its sirens sound and lights flashing, on a “wild goose chase” also suffices (it may also be a violation of Vehicle Code § 2800.2 (a misdemeanor) or § 2800.1 (a felony)).
Less obvious examples that can result in charges include giving false identification to police (People v. Christopher (2006) 137 Cal.App4th 418), ignoring an officer’s order to stop interfering with an ongoing investigation (In re Mohammed C. (2003) 95 Cal. App. 4th (325), or refusing to identify yourself during booking (People v. Quiroga (1993) 16 Cal. App. 4th 961).
The most common defenses to this charge are self-defense and claiming that the arrest was unlawful. Both of these defenses arise from an officer using excessive force or performing an unlawful search. For example, if an officer uses excessive force, he is not making a lawful arrest and a defendant can defend himself because the officer is not performing his duties anymore. The self-defense used by defendant, however, must be reasonable under the circumstances. Likewise, if a warrantless search is conducted and no exception applies to the general warrant requirement, a defendant’s resistance to officers is not a crime because the officers are not performing their official duties.
Often, resisting arrest is charged as a way to cover over police misconduct, to intimidate defendant into remaining silent. When this is the case, it is wise for defense counsel to file a Pitchess motion to have the court order the production of the police officers’ personnel files. The file can reveal a history of excessive force, racial profiling, coercing confessions or fabricating evidence, which can help impeach the police officer’s credibility about what really happened, or to refute false allegations by the police.
The maximum punishment for a violation of Penal Code § 148(a)(1) is one year in county jail or a $1,000 fine.
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