California’s "Resisting Arrest" Law
Penal Code 148(a)(1) PC
California Penal Code 148(a)(1) PC is most commonly referred to as "resisting arrest". This law, however, reads much broader. This offense prohibits you from willfully
- Resisting,
- Delaying, or otherwise
- Obstructing
an officer or emergency medical technician (EMT) while he/she is engaged in (or attempting to engage in) the performance of his/her duties.1
This offense is a misdemeanor. It is punishable by up to one year in a county jail and/or a maximum $1,000 fine.2 And even though this seems like a relatively minor offense, it is important to fight your "resisting arrest" charges. Having a Penal Code 148 PC conviction on your record is sure to turn any future police encounter into a negative one.
Below, our California criminal defense attorneys3 address:
1. The Legal Definition of "Resisting Arrest"
in California
2. Legal Defenses
3. Penalties, Punishment, and Sentencing
4. Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Vehicle Code 2800.1 VC Misdemeanor Evading an Officer; Vehicle Code 2800.2 VC Felony Reckless Evading; Penal Code 243 PC Battery on a Peace officer; Penal Code 240 PC Assault; Penal Code 242 PC Battery; California Legal Defenses; California’s Self-Defense Laws; and Police Misconduct.
1. The Legal Definition of "Resisting Arrest"
in California
There are actually several subdivisions that fall under California Penal Code 148 PC. In addition to "resisting arrest", prosecutors could also charge you with
- interrupting or interfering with communication over a public safety radio frequency, and/or
- taking a gun or other weapon from an officer (which could result in felony charges).4
Since the "resisting arrest" subdivision is the most commonly prosecuted section of California Penal Code 148 PC, it will be the main focus of this article.
In order to convict you of this offense, the prosecutor must prove three facts (otherwise known as "elements of the crime"):
- that you willfully resisted, delayed, or obstructed an officer or EMT,
- when the officer or EMT was engaged in the performance of his/her duties, and
- that you knew or reasonably should have known that he/she was an officer or EMT engaged in those duties.5
Because resisting an officer is a much more common charge than resisting an EMT, we will focus on the elements necessary to prove that charge. So let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.
Willfully
You act willfully when you commit an act willingly or on purpose. It doesn’t matter if you don’t intend to break the law as long as the act is intentional.6
Resist, delay, or obstruct
Physical acts, such as running away or hiding, are clear examples of resisting, delaying, or obstructing arrest. Some not so clear examples involve physical force. The types of physical struggles that trigger this charge take place when you are trying to avoid:
- being handcuffed,
- being put in a police car, or
- being placed in a holding cell.
Verbal and other non-physical acts can also result in Penal Code 148 PC resisting arrest charges.
Examples: California courts have held that the following examples were sufficient to sustain a resisting, delaying, or obstructing conviction:
- falsely identifying yourself during an investigation,7
- refusing to disclose your identity during the booking process, and8
- acknowledging and then ignoring an officer’s order to stop interfering with a separate on-going investigation.9
Conversely, the courts have held that the following acts are not by themselves sufficient to support a resisting, delaying, or obstructing conviction:
- slowly complying with an officer’s order,10
- refusing to give your name while in a police car en route to jail, or11
- criticizing, swearing at, or otherwise voicing your opinion to the police (unless you’re using "fighting words" to incite a riot in violation of Penal Code 415 PC California’s "disturbing the peace" law).12
Engaged in the performance of his/her duties
To be "engaged" in the performance of duties means the peace officer is:
- making (or attempting to make) a lawful arrest,
- exercising custody over a person, who has been placed under a citizen’s arrest,
- detaining (or attempting to detain) a person for questioning, and / or
- using reasonable force in an effort to (1) conduct a lawful detention, or (2) make an arrest.13
Knew or reasonably should have known
Whether or not you "knew or reasonably should have known" that you were dealing with an officer or EMT who was "engaged in the performance of his/her duties" will be judged objectively.
This means that the judge and/or jury will consider whether a "reasonable person" in your shoes…at the time of the offense…would have been aware of this fact.14 Some considerations may include (but are not limited to):
- whether the officer or EMT was in uniform,
- whether the officer was trying to handcuff you or another suspect, or
- whether the individual was driving in a recognized "official" car, such as a marked police car or ambulance.
2. Legal Defenses
There are several legal defenses to a Penal Code 148 PC California "resisting arrest" charge that your criminal defense lawyer could present on your behalf. Some of the most common include (but are not limited to):
The arrest was unlawful
If you physically resist, delay, or obstruct an unlawful procedure, you are not guilty of this offense. This is because an officer is under no duty to perform an unlawful arrest…and isn’t therefore "engaged in the performance of his/her duties" when he/she does so.15
Example: Police break down Rick’s door while he is home. They don’t announce themselves, have no warrant, and begin ransacking Rick’s home as they look for drugs. As Rick fights the officers while they handcuff and transport him to the station, he breaks one of the officer’s ribs.
Because the officers were engaged in illegal activity, Rick’s efforts to resist an unlawful arrest are excused. He is not guilty of violating Penal Code 148 PC California’s resisting arrest law.
Self-defense
Similarly, if you resist an officer who is using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California’s self-defense laws. California’s self-defense laws will protect your conduct as long as the force you use is reasonable under the circumstances.16
Example: Let’s add to the example from above. Suppose one of the officers who is searching Rick’s home begins beating Rick as a way to coerce him into telling the officers where he keeps his drugs. Given these facts, Rick is entitled to defend himself reasonably against the officer’s use of excessive force.
This logic is based on the same premise as above. When an officer uses excessive force…even during an otherwise "lawful" arrest…the arrest becomes unlawful and the officer is no longer "engaged in the performance of his/her duties".17
But even when this is the case, prosecutors could still charge you with other crimes that don’t require an officer to be "engaged in the performance of his/her duties". Examples include Penal Code 240 PC California’s assault charge or Penal Code 242 PC California’s battery law, both of which can be committed against any victim, not just an officer.
And similarly, if the officer or EMT’s use of excessive force is in response to your unjustified physical acts of resisting, delaying, or obstructing an otherwise lawful procedure, you will be precluded from asserting this defense.18
Example: Again, referring back to the previous example, let’s assume the police have a warrant, find illicit drugs in Rick’s home, and then place Rick under arrest. If Rick attacks the officer who is trying to handcuff him…which leads the officer to use more force than is necessary to subdue Rick…an "excessive force" claim would not excuse Rick’s attack.
Police Misconduct
When the officer is suspected of police misconduct, your California criminal defense lawyer may file what is known as a Pitchess Motion. A "Pitchess" Motion is a request for information contained in the arresting officer’s personnel file.
As Newport Beach criminal defense attorney Zachary McCready19 explains, "We file this motion when we believe that you were wrongly arrested based on allegations that the officer either made up or enhanced. And when we find a history of complaints or misconduct, it will likely result in a reduction of your charges or an outright dismissal of your case."
False allegations
A California "resisting arrest" allegation is often a trumped up charge. You may be cited for California Penal Code 148(a)(1) because you were simply dismissive, uncooperative, or rude. Police, like anyone else, experience anger and sometimes seek revenge. But unlike everyone else, police are in a position of authority where they can readily abuse that power.
Eyewitness accounts, tape recordings, and independent investigators are useful tools that help expose false allegations for what they really are. And our firm of former cops and prosecutors know the most effective ways to utilize these tools to help prove your innocence.
3. Penalties, Punishment, and Sentencing
Penal Code 148 PC California’s resisting arrest law is a misdemeanor. If convicted, you face up to one year in a county jail and a maximum $1,000 fine.20
In addition, you will most likely be placed on probation under California’s probation laws. California’s probation laws essentially authorize judges to impose any probation conditions that they see fit, as long as they are logically related to the circumstances of the offense.21
If the facts are simply too strong to overcome, your criminal defense lawyer may be able to at least reduce the charge to a lesser offense. When the charge is one like this…that is, one that carries no minimum fine or jail sentence…it may seem odd to negotiate for a different charge.
However, Penal Code 602 PC California’s trespassing law or Penal Code 415 PC California’s disturbing the peace law are charges that
- carry a maximum six month jail sentence (instead of a one-year maximum),
- can be charged as misdemeanors or infractions, and
- carry less of a social stigma.22
As a result, it is often advisable to plead guilty to these charges in lieu of a Penal Code 148 PC offense.
4. Related Offenses
Using physical force to resist, delay, or otherwise obstruct the duties of an officer or EMT may lead to additional criminal charges. Assault on a peace officer and/or battery on a peace officer are the most common charges filed in connection with a California "resisting arrest" charge.
Penal Code 243 PC California’s battery on a peace officer law may be filed in connection with a "resisting" charge if you use physical force against the officer or EMT.
In addition to this charge, there are a variety of California offenses that, depending on the circumstances, may coincide with a "resisting arrest" charge. Whether multiple charges are appropriately filed or illegally grouped together will vary case-by-case. Two of the most common include Penal Code 69 PC (a more comprehensive "resisting" charge) and evading arrest.
This section is broader than California Penal Code 148 PC in that it applies to all executive officers (which includes police officers). An "executive officer" is any employee who is responsible for enforcing the law.
Additionally, California Penal Code 69 PC actually encompasses two different offenses:
- attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law, and
- using force or violence to resist an officer in the performance of his/her duties.23
California courts have held that California Penal Code 148 PC is a lesser included charge of the second offense listed in Penal Code 69 PC above.24 This is important because it means that you can’t be penalized for both crimes, only one or the other.
Vehicle Code sections 2800.1 and 2800.2 VC California’s "evading arrest" laws
Vehicle Code 2800.1 VC California’s "evading an officer" law and Vehicle Code 2800.2 VC California’s "felony reckless evading" law prohibit fleeing from or evading a pursuing officer’s car. If you willfully evade an officer, you are arguably resisting, delaying, or obstructing the officer in the performance of his/her duties.
Call us for help…
For more information about Penal Code 148 PC California’s resisting arrest laws, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s resisting arrest laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.25
Legal References:
1California Penal Code 148(a)(1) PC -- Resisting arrest. ("(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.")
2See same.
3Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4California Penal Code 148 – Resisting, delaying, or obstructing officer or EMT. ("(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 in the state prison. (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 in the state prison. (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 in the state prison.")
5California Jury Instructions, Criminal – CALJIC 16.102 California’s resisting arrest law.
6CALJIC 1.20 -- Willfully. ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")
7People v. Christopher, 137 Cal.App.4th 418 (2006)
8People v. Quiroga, 16 Cal.App.4th 961 (1993)
9In re Muhammed C., 95 Cal. App. 4th 1325 (2003)
10See same.
11People v. Quiroga, 16 Cal.App.4th 961 (1993)
12Resek v. City of Huntington Beach 41 Fed.Appx. 57, 2002 WL 1418270 (C.A.9 (Cal.)) (2002). ("Wersching argues that Resek's conduct is validly prohibited as (1) obstructing the police by inciting the crowd, in violation of § 148, and (2) fighting words, in violation of Penal Code § 415 [California’s disturbing the peace law]. We reject this argument. See, e.g., People v. Quiroga, 16 Cal.App.4th 961, 966, 20 Cal.Rptr.2d 446 (1993) ("[I]t surely cannot be supposed that [§ 148] criminalizes a person's failure to respond with alacrity to police orders."). Resek cannot be arrested for his words unless they are somehow stripped of their First Amendment protection. While the First Amendment does not protect threats, see Rankin v. McPherson, 483 U.S. 378, 386-87, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), in order for speech to qualify as illegal advocacy of violence, without the protection of the First Amendment, the bar is high. Only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" can this speech be proscribed.")
13CALJIC 16.103 -- Discharge or performance of duties.
14People v. Lopez (1986) 188 Cal.App.3d 592, 599–600.
15Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819. ("Thus, "[b]efore a person can be convicted of [a violation of section 148, subdivision (a) ] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed." ( In re Joseph F. (2000) 85 Cal.App.4th 975, 982, 102 Cal.Rptr.2d 641.) " ‘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" for purposes of an offense defined in such terms, if the officer's conduct is unlawful....’ " ( In re Manuel G. (1997) 16 Cal.4th 805, 815, 66 Cal.Rptr.2d 701, 941 P.2d 880; People v. Cruz (2008) 44 Cal.4th 636, 673, 80 Cal.Rptr.3d 126, 187 P.3d 970 ["it is also a ‘well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed’ "].) "Under California law, an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause." ( Nuño v. County of San Bernardino (C.D.Cal.1999) 58 F.Supp.2d 1127, 1134, italics added.)")
16Judicial Council Of California Criminal Jury Instruction 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)]; [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
See also Judicial Council Of California Criminal Jury Instruction 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party<) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")
17People v. White (1980) 101 Cal.App.3d 161, 164. ("The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties (ss 245, subd. (b), 243 or 148).")
18Yount v. City of Sacramento (2008) 43 Cal.4th 885, 900. (""For example, a defendant might resist a lawful arrest, to which the arresting officers might respond with excessive force to subdue him. The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant's attempt to resist it.")
19Newport Beach criminal defense attorney Zachary McCready defends clients accused of violating California’s resisting arrest laws throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.
20Penal Code 148 PC California’s resisting arrest law, endnote 1, above.
21People v. Lent (1975) 15 Cal.3d 481, 486. ("The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ...."")
22Penal Code 602 PC California’s trespass law prohibits entering another person’s property without permission.22 Penal Code 415 PC California’s "disturbing the peace" law prohibits, among other things, fighting another person in public.
23In re Manuel G. (1997) 16 Cal. 4th 805, 814. ("The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.")
24People v. Lacefield (2007) 157 Cal. App. 4th 249, 257. ("Comparing the elements, it appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1), which means that section 148(a)(1) is a lesser included offense of the second type of offense in section 69, under the statutory elements test described in Birks.")
25Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s resisting arrest laws. Their Nevada law offices are located in Reno and Las Vegas.
