Resisting arrest under Penal Code § 148(a)(1) is the misdemeanor version of Penal Code § 69, which can be charged as a felony or a misdemeanor. Section 148(a)(1) is violated when one obstructs an officer or EMT when the officer or EMT is performing his or her duties. The prosecution must prove that defendant knew or should have known that the person affected was an officer or an EMT performing such duties. To prove this, the prosecution will argue what a reasonable person would have realized or understood the nature of the obstruction.
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.
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.
However, it is important to understand exactly what must be shown by the facts for the jury 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 blaring 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 phrase “performing his duties” is defined as making or attempting to make a lawful arrest, exercising custody over a person, detaining a person for questioning or using reasonable force to conduct a lawful detention.
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.
For more information about resisting arrest and related topics, click on the following articles:
- What Is the Difference Between a Felony and a Misdemeanor?
- What Is Resisting Arrest under Penal Code § 69?
- What Should I Wear and Bring to Court?
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