Under California law, delaying an officer in performing their duties, or showing the slightest amount of defiance, can result in prosecution for resisting arrest. Being charged with resisting arrest can be confusing, as it seems obvious to most people that no one wants to be arrested. Many courts recognize that slight resistance is par for the course with most arrests, but some courts, and many law enforcement officers do not recognize this truth.

San Diego Attorney for Resisting Arrest

If you have been charged with resisting arrest, you need to contact an experienced defense attorney immediately. Resisting arrest charges can result in massively increased penalties on top of the crime you are being charged with.

Attorney Michael Cindrich has decades of experience in criminal court. He has protected clients accused of criminal charges for decades and is ready to build your resisting arrest case. The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, and San Diego.

Contact the Law Offices of Michael E. Cindrich today for a free, confidential consultation at (619) 262-2500.

Overview of Resisting Arrest Laws in California

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The Crime of Resisting Arrest Under California Law

California’s primary law on resisting arrest is Penal Code Section 148(a). It states that anyone who willfully resists, delays, or obstructs a peace officer or emergency medical technician (EMT) in the lawful performance of their duties can face a misdemeanor charge. This includes nonviolent actions, such as refusing to cooperate during questioning.

Other related provisions include:

  • Penal Code Section 148(b): Criminalizes removing or attempting to remove a weapon, other than a firearm, from an officer during resistance.
  • Penal Code Section 148(c) and (d): Address the removal or attempted removal of a firearm during resistance.
  • Penal Code Section 417.8: Imposes felony charges for brandishing a deadly weapon to resist arrest.

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Cover Charges: Shifting the Blame

Here’s a scenario that plays out again and again: Police pull over a person on a lame excuse, hoping to find probable cause after the fact to search the suspect and the car for drugs or illegal weapons. No evidence is discovered, because the citizen has committed no crime. So the officers provoke the person by patting the person down and making threats or accusations. Sometimes it works, resulting in a physical altercation or loud and dramatic confrontation, and the patrolman can put the person in cuffs for resisting arrest, assaulting an officer or disturbing the peace. If they don’t get the desired reaction, officers may file charges anyway. Particularly if the person has a criminal record – who is the judge or jury going to believe?

Police have a good reason to file “cover charges”. If there is no arrest for an underlying crime, they realize they run the risk of a racial profiling or police misconduct complaint. They also know that a conviction for resisting arrest or assaulting police prevents a suspect from filing a civil rights lawsuit.

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Key Elements a Jury Must Consider for Resisting Arrest in California

To convict a defendant of resisting arrest under Penal Code Section 148(a), a jury must determine that the following elements are proven beyond a reasonable doubt, as outlined in CALCRIM Jury Instruction No. 2656:

  1. The officer was lawfully performing their duties: This includes making lawful arrests or detentions and not using excessive force. If the arrest or detention was unlawful, the defendant cannot be convicted.
  2. The defendant willfully resisted, delayed, or obstructed: Actions must be intentional, not accidental or passive, though they can include nonviolent acts like going limp.
  3. The defendant knew or reasonably should have known the individual was an officer: Actual knowledge of the officer’s status is essential, though uniformed presence usually suffices to establish this.

Jury instructions, such as CALCRIM No. 2670, also clarify what constitutes “lawful performance,” which can impact the outcome of a case.

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Penalties for Resisting Arrest in California

Penalties for resisting arrest in California depend on the severity of the charge:

  • Misdemeanor resisting arrest (Penal Code Section 148(a)):
    This is punishable by up to one year in county jail, a fine of up to $1,000, or both. Probation may be available, but restrictions apply based on the case’s circumstances.
  • Felony for weapon-related resistance (Penal Code Sections 148(b)–(d)):
    If the resistance involves removing or attempting to remove a weapon from an officer, penalties can include up to three years in state prison and steeper fines.

The specific penalties depend on factors like prior convictions, the presence of aggravating circumstances, and whether the defendant injured anyone during the alleged offense. Judges may impose stricter sentences for repeated offenses or incidents involving violent resistance.

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Exceptions to the Requirements of Section 841

Section 841 sets forth three exceptions to the requirement that the person making the arrest must inform the person to be arrested of the intention to arrest him, the cause of the arrest, and the authority to make the arrest including:

  • when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense; or
  • the person to be arrested is pursued immediately after its commission, or after an escape.

The reason that notification of official character of the person making an arrest is not required when the party is apprehended in the commission of an offense is because the law presumes that the person must know the reason why he or she is being arrested.

In People v. Young (1934) 136 Cal.App. 699, 705, the court reasoned that “[w]here a party is apprehended in the commission of an offense, or upon fresh pursuit afterward, notice of the official character of the person making the arrest or of the cause of the arrest is not necessary, because he must know the reason why he is apprehended.” In other words, the failure to announce the cause of an arrest does not invalidate the arrest.

The courts have found that strict compliance with this provision is not required and a failure to comply therewith is excused if the officer acts in a good faith belief that compliance would increase his peril. For example, in People v. Superior Court (1968) 264 Cal.App.2d 165, 171-172, the court found that the “failure to observe these statutory requirements may be overlooked when necessary for the safety of an officer ….”

In People v. Vasquez (1967) 256 Cal.App.2d 342, 345 (Vasquez), the court reasoned that “a police officer’s reasonable belief that compliance with section 841 would frustrate an arrest excuses strict compliance with that section.” The courts have even found that a “police officer’s uniform is sufficient indicia of authority to make the arrest.” (People v. Superior Court (1973) 35 Cal.App.3d 1, 5.)

Under section 834a, “[i]f a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force … to resist such arrest.”

Section 834a requires that a person who is being arrested refrain from using force, whether the arrest is lawful or unlawful. (In re Bacon (1966) 240 Cal.App.2d 34, 53, disapproved on another point in In re Brown (1973) 9 Cal.3d 612, 623-624.) In Carrasco, supra, 163 Cal.App.4th at page 985, the court found that if an appellant resisted an officer at all, he did so forcefully

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Resisting Arrest FAQ

  1. Can I be charged with resisting arrest if the officer had no legal reason to stop me?
    Yes, but you may have a valid defense if the stop or detention was unlawful.
  2. Is refusing to answer an officer’s questions considered resisting arrest?
    No, silence alone does not meet the criteria for resistance under Penal Code Section 148.
  3. What happens if I didn’t know the person was a police officer?
    The officer must inform you that they are a police officer and provide identification. You are legally allowed to resist an illegal arrest, as you have no way of knowing if the arrested person is a member of law enforcement or not.
  4. Can going limp during an arrest count as resisting?
    Yes, passive resistance, such as going limp, may be charged under Section 148(a) as delaying an officer’s duties.
  5. Can I be charged with resisting arrest if I was intoxicated?
    Intoxication does not excuse resisting arrest, though it may influence the interpretation of intent.
  6. Can I face multiple charges for resisting arrest and another crime, like DUI?
    Yes, resisting arrest can be charged in addition to other offenses arising from the same incident.

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Additional Resources

California Penal Code Section 148 – California Penal Code Section 148 is the official law on resisting, delaying, or obstructing a public officer, peace officer, or emergency medical technician. It explains penalties, the role of intent, and circumstances involving weapons.

Racial Disparities in California Criminal History Data – This report from the University of Wisconsin-Madison analyzes 13 years of California criminal history data to highlight racial disparities in resisting arrest charges under Penal Code Sections 69 and 148. It examines arrest rates, prosecution, and conviction patterns, focusing on racial and ethnic disparities, including cases involving Black and Hispanic individuals.

Supporting Analyses – Stand-Alone Resisting Arrests – This document, authored by the Department of Justice, explores sole resisting arrest charges under California Penal Code Section 148(a)(1). It reviews the reasons for stops, demographics of individuals involved, and statistical disparities based on race, gender, and perceived disabilities.

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Hire a Defense Attorney for Resisting Arrest in San Diego County

Attorney Michael Cindrich has decades of experience in criminal court. He has protected clients accused of violent crimes and other criminal offenses for decades and is ready to defend your resisting arrest case. The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, and San Diego proper.

Contact the Law Offices of Michael E. Cindrich today for a free, confidential consultation at (619) 262-2500.