In Colorado, CRS § 18-8-103 makes it a crime to resist arrest by using threats, force or violence against the police officers or other people. As a class 2 misdemeanor, resisting arrest carries up to 120 days of county jail time and/or up to $750.
A common defense to this charge is that the arresting officer used excessive force.
The language of CRS 18-8-103 states that:
A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against the peace officer or another; or
(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.
In this article, our Colorado criminal defense attorneys discuss:
- 1. What is resisting arrest in Colorado?
- 2. What if the arrest is unlawful?
- 3. What are the penalties under CRS 18-8-103?
- 4. What are ways to fight the charge?
- 5. Is the crime of resisting arrest deportable?
- 6. Can I get my record sealed?
- 7. Related offenses
- Additional resources
1. What is resisting arrest in Colorado?
You resist arrest by knowingly preventing a law enforcement officer from taking you – or another person – into custody by either:
- inflicting physical force on the police or others; or
- threatening to inflict the physical use of force on the police or others; or
- otherwise causing a high risk that the police or others will be injured 1
Examples of resisting arrest are:
- Kicking the officer while being cuffed
- telling the officer, “I’ll kill your family unless you release me.”
- Instructing the nearby crowd to jump a police officer who is handcuffing a vandal
2. What if the arrest was unlawful?
If you are placed under an unlawful arrest, you must still cooperate as long as the officer acts in good faith. You can then object to the arrest at a later time by filing a court motion. 2
Example: Jack and Jim are identical twin brothers living in Denver. One day Jack robs a bank. An officer on the lookout for Jack sees Jim and uses reasonable force to arrest him genuinely thinking that he is Jack. In this case, Jim may not resist being arrested because – under the reasonable person standard – the officer understandably believes the correct person is being apprehended and that there is probable cause to place him under lawful arrest. If Jim puts up any physical interference during the arrest, he could face a charge of resisting arrest even if the bank robbery charges get dropped.
3. What are the penalties under CRS 18-8-103?
Resisting arrest is a class 2 misdemeanor under Colorado law. The sentence includes:
- Up to 120 days in jail, and/or
- A fine of up to $750. 3
This is in addition to the punishment for any underlying crime you were being apprehended for.
4. What are ways to fight the charge?
Three potential defenses to charges of resisting arrest are:
- The officer is not engaged in their official duties. An example is if the officer is off-duty and working as a private security guard, and there are no grounds for making a citizen’s arrest. 4
- The officer was using excessive force, and you were acting in lawful self-defense or defense of another. 5 An example is if the officer beats you despite you not putting up a fight, and a bystander grabs the officer to stop the beating.
- You did not act knowingly. 6 An example is if you have a seizure while being cuffed, causing your arms to flail and hit the officer; here, you are not criminally liable because the flailing was unintentional.
For any resisting arrest charge that reaches trial, the D.A. has the burden to prove each element of the crime beyond a reasonable doubt – which is a very high bar.
5. Is the crime of resisting arrest deportable?
Resisting arrest is potentially a crime of moral turpitude and therefore deportable, even if no deadly weapon was involved. 7 Non-citizens charged with this criminal offense are advised to hire experienced counsel right away to try to get the charge dismissed or reduced to a non-deportable offense.
Learn more about the criminal defense of immigrants in Colorado.
6. Can I get my record sealed?
Resisting arrest case convictions in Colorado can be sealed two years after the case closes. If the charge gets dismissed, there is no wait to petition the court for a record seal. 8
7. Related offenses
7.1. Vehicular eluding
Vehicular evading (CRS 18-9-116.5) is driving recklessly (CRS 42-4-1401) and attempting to evade a pursuing police car. This felony carries one to 12 years in prison depending on whether an injury or death results. 9
7.2. Eluding a police officer
Eluding a police officer (CRS 42-4-1413) is dodging – or attempting to dodge – a police vehicle that is signaling you to pull over. This class 2 traffic misdemeanor carries $150 to $300 in fines, and/or 10 to 90 days in jail. 10
7.3. Obstructing a peace officer
Obstructing a peace officer (CRS 18-8-104) is hindering peace officers, firefighters, EMT providers, rescue specialists or volunteers in the course of their duties. This class 2 misdemeanor carries up to 120 days in jail and/or up to $750. 11
7.4. Disarming a peace officer
Disarming a peace officer (CRS 18-8-116) is knowingly removing a weapon from a police officer while the officer is acting in an official capacity. This felony carries one to three years in prison and/or $1,000 to $100,000 in fines depending on whether you succeeded in disarming the officer. 12
For more in-depth information about resisting arrest, refer to the following scholarly articles:
- The Occurrence of Resisting Arrest in Arrest Encounters: A Study of Police-Citizen Violence – Criminal Justice Review.
- Resisting Arrest: Predictors of Suspect Non-Compliance and Use of Force Against Police Officers – Police Practice and Research.
- The Right to Resist an Unlawful Arrest – Yale Law Journal.
- Resisting Arrest and Racism – The Crime of Disrespect – UMKC Law Review.
- The Use of Force in Effecting or Resisting Arrest – Nebraska Law Review.
- Colorado Revised Statutes 18-8-103. See also People v. Lowe, (2020) COA 116, 486 P.3d 397. People v. Thomas (2020) COA 19M 490 P.3d 569.
- People v. Hess, (Colo. 1984) 687 P.2d 443; CRS 18-8-103 (“It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts “under color of his official authority” when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.“).
- CRS 18-8-103. Prior to March 1, 2022, resisting arrest carried 3 to 12 months in jail and/or fines of $250 to $1,000. SB21-271.
- People in Interest of J.J.C., App., (1992) 835 P.2d 553, certiorari granted, affirmed 854 P.2d 801; CRS 18-8-103 (“The term “peace officer” as used in this section and section 18-8-104 means a peace officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted.“)
- McDaniel v. People, (1972) 499 P.2d 613, 179 Colo. 153, certiorari denied 93 S.Ct. 558, 409 U.S. 1060, 34 L.Ed.2d 512; People v. Fuller, App., (1987) 756 P.2d 390, affirmed in part, reversed in part 781 P.2d 647.
- CRS 18-8-103.
- 8 USC 1227; see Cano v. U.S. Attorney General, (11th Cir., 2013) 709 F.3d 1052.
- CRS 24-72-701-708
- CRS 18-9-116.5.
- CRS 42-4-1413
- CRS 18-8-104.
- CRS 18-8-116.