Resisting arrest in California

Have you been arrested for resisting arrest in California? If that is the case you can contact our criminal lawyers in Los Angeles to get out of jail.

We have spent more than 40 years defending individuals who have been arrested in Los Angeles for resisting the police. But if you are also an alien, you could be involved in serious immigration problems as well.

California resisting arrest laws in 2023

Resisting arrest should not be confused with just a physical struggle between a person and a police officer. This is considered a felony under Section 69 of the California Penal Code.

Assaulting a police officer or any other law enforcement officer is punishable by a fine of up to $10,000 and imprisonment for less than one year in the county jail. 

The crime of resisting arrest is much broader and encompasses different situations. Section 148 PC of the act defines it as criminal conduct and is classified as a misdemeanor.

It involves willfully obstructing, resisting, or delaying the performance of an officer’s or police officer’s duties. 

Resisting arrest as a misdemeanor 

Resisting arrest as a misdemeanor does not necessarily require physical contact between the individual and the officer. 

• Anyone who escapes from the law after being chased by the police can be charged; and 
• Those who do not comply with an order given. For example:
  • Abandon a scene.
  • Disregard the loud voice of a law enforcement officer.
  • Fail to act quickly enough at the request of an authority. 
  • Even prevent the police from entering a house when being showed a search warrant. 

What happens if you resist arrest in California?

Any person who resists, prevents, delays or obstructs a law enforcement officer in the performance of his work commits a crime. 

California law provides prison sentences and fines for those who are accused and convicted of this crime. 

It is the same thing that happens if you run away from the police, after receiving the order to stop. 

What is the punishment for resisting arrest? 

Those charged with this crime under Section 148 of the Penal Code may face:

• Up to one year in prison in the county jail; and
• Fine of up to $1,000, or both. 

Arrests for alleged resisting arrest are common in California. Hence, a person accused of this charge must have the best criminal lawyers in Los Angeles to defend themselves.

Typically, the prosecution defends the arresting police officer and supports their version of events. A defendant, on the other hand, is at a disadvantage before the law if they do not have an appropriate defense.

What qualifies as resisting arrest in California?

To establish the crime of resisting arrest, the prosecution must prove three fundamental aspects in the case:

• The defendant knowingly resisted arrest or obstructed the work of a police officer or EMT (Emergency medical technicians).
• While the officer of the law fulfilled their duties.
• They also had knowledge that the police officer or EMT was working legally. 

What are the possible criminal defenses?

Generally, criminal defense attorneys use three defense strategies to try to get the judge to:

• Dismiss the charges and set the client free.
• Reduce the sentence (fine and jail time).
• Change the name of the crime (instead of applying PC 69 of the law, applying PC 148 instead).

To do so, they invoke one of the following defense arguments:

1. It was not a deliberate or intentional act: The prosecutor is required to prove that it was an intentional act for the prosecution to proceed. It is likely that the defendant acted accidentally and was considered by the officer to be resisting arrest. 
2. The accused was defending himself against an illegal arrest: A person has the right to defend himself when they consider that an arrest is made illegally. Of course, they will have to prove to the court that they acted reasonably in the face of the violation of their constitutional rights. An example of an illegal arrest is subduing a person and then hitting them without justification. That was the controversial case of George Floyd, which occurred on May 25, 2020 in Minneapolis. 
3. Client was falsely accused: There are many times when a law enforcement officer will go after a person or act on false accusations. It often occurs due to retaliation from a partner (jealousy), business (envy, hatred) or racial reasons. 
4. It is a case without probable cause: To proceed with the arrest or detention of a person, the police must have probable cause. That is a constitutional right of every person in the United States (Fourth Amendment). In addition, the prosecutor must prove that there was probable cause.

Is the evidence obtained through an illegal arrest valid?

No. Any evidence obtained without probable cause must be dismissed as evidence by the court. An arrest under these conditions and the evidence obtained will be considered void. 

Every person accused of this or any crime has the right to defend themselves. Therefore, it could prove that during the police procedure there was no such resistance to arrest. 

What do the police say when they arrest someone?

During the process of detaining a person, the police are obliged to inform the suspects that:

• They have the right to remain silent.
• They have the right to an attorney.
• Anything you say can and will be used against you in a court of law.
• If you cannot afford an attorney, the court will appoint one for you.
• They understand their rights by asking: Do you understand these rights?

This is what is known as a Miranda warning or right. In allusion to the case of Ernesto Arturo Miranda against the state of Arizona in which the defendant’s constitutional rights were violated.

The case was reopened and heard by the Arizona Supreme Court, which declared it null. 

What crimes are related to resisting arrest?

Here are some of the crimes associated with resisting arrest: 

• Assault on a Peace Officer – Section 243(b) PC, California Penal Code.
• Fleeing or attempting to evade a police officer – Section 2800.2 VC, California Vehicle Code.
• Refusal to comply with an official order – Section 2800.1 VC, California Vehicle Code.
• Falsely identifying yourself as a police officer – Section 148.9 PC, California Penal Code.
• False Report of a Crime – Section 148.5 PC, California Penal Code. 

Find out what are deportable offenses and how to act if ICE agents show up at your door in our criminal defense blog.

What is a police warrant?

An arrest warrant is an order written by a judge but executed by the police. 

• It is used to arrest a suspect, whose name is specified in the respective warrant. 
• Ignoring it leads to increasing the seriousness of the imputed crime, because it will be considered as resisting arrest in California. 
• Not to be confused with a search warrant. The latter is also issued by a judge and serves to authorize the police to search for evidence in a specific place. For example, a house or an office.
• Instead, an arrest warrant is always issued after an investigation. It is done at the request of the prosecutor or the judge of the case. 

Cases in which an arrest warrant is issued

In all these cases a judge can issue an arrest warrant against the accused:

• Failure to appear before the judge on the date and time set by the court.
• Failing to comply with Community Service or failing to show that you did so in court.
• Unpaid fines or not paying taxes.
• You do not appear in court during an open case. Individuals have an obligation to do so until the case is closed.
• Failure to attend court on the day set for sentencing or sentencing of the case.

At the request of a prosecutor, the police could also proceed to arrest a suspect in a crime. Likewise, a police officer can make an arrest when they discover an individual committing a crime in flagrante delicto (in blazing).

What to do if I receive an arrest warrant?

• If you have a warrant for your arrest, it is best to speak with an experienced criminal attorney. 
• For no reason should you stop attending the police or court hearing the case. Unless there are reasons of force majeure and your lawyer indicates otherwise.
• If you fail to appear after the arrest warrant is issued, you will be actively sought by the police.

Generally, when an arrest warrant is issued, the suspect is not previously informed. You will most likely know you are wanted at the time of your arrest.

What is an arrest?

An arrest is the deprivation of mobility or detention of an individual or a group of people for a short period of time. 

• The arrest is executed by law enforcement officials on their own or at the request of a United States prosecutor.
• This procedure is performed when there is no certainty about responsibility for a crime. 
• Its purpose is to question potential witnesses or suspects of committing a crime.
• Arrest may also be made to prevent the process of an investigation from being hindered.

What is preventive detention?

Detention, on the other hand, is when the police hold a person suspected of a crime in their custody. The person is detained for questioning and the discovery of new evidence during a police investigation or trial.

It is a judicial measure that temporarily and exceptionally restricts the freedom of a person. Its purpose is to guarantee the effectiveness of a criminal process and/or the execution of a sentence. 

Misdemeanor defendants in California are generally released on their own recognizance after being presented. Unless they have a criminal record for other crimes or fall under the California 3 strikes law.

What is the preventive detention hearing?

It is the one in which the judge listens to the arguments of the parties to proceed to arrest or not a defendant during a criminal trial. Pretrial detention hearings serve as an alternative to California bond hearings.

The celebration of the pre-trial detention hearing will depend on the situation of the accused:

• If they are already in custody. The hearing must be held within three working days of the presentation of the request for pre-trial detention.
• Not in custody and the court issues an injunction against them. Then, the hearing must be held within the following three business days, counted from his arrest.
• The defendant is not in custody and the court does not issue an arrest warrant. The hearing must take place within five judicial days from the date the hearing was requested.

When can the police arrest a person?

Section 836 of the California Penal Code defines when and how a police officer can make an arrest. Whether you are in compliance with a court order or in any of the following circumstances:

1. There is probable cause to believe that the person “has committed a public offense in the presence of the officer” (flagrancia). 
2. The arrested person has committed a felony, even though the officer was not present.
3. The officer has reason to believe that the person to be arrested has committed a felony. Regardless of whether or not the felony has been committed.

What is the difference between apprehension and arrest?

• The apprehension consists of the procedure of capture and immobilization of a person. 
• The arrest instead is the act of legally detaining the person to be subjected to criminal proceedings. 
• The arrest can be carried out by the police or by an individual who collaborates with the justice system at the time.
• While the arrest can only be carried out by the police at the request of the court or the prosecution.
• Apprehension is an informal procedure while arrest is formal.

It differs from retention which means briefly detaining a person while the officer:

• Execute a vehicle requisition;
• Practice a break-in.
• Demand a person’s papers or driver’s license.
• Runs a drug test to determine a possible DUI.

How long can a person be detained without charge in California?

Anyone who is arrested and detained must appear in court within 48 hours. Unlike other states in the country that set the time limit for filing charges at 72 hours. 

If the prosecution does not file charges during that time, the suspect should be released immediately. 

How long does a misdemeanor arrest warrant remain active?

In California, a misdemeanor warrant remains active until it is expunged. In other words, they have no expiration date. Except that the crime has prescribed. 

Then the order should be dismissed by the judge. The California statute of limitations for misdemeanors is 1 year from when the offense occurs.

What do I do if I am arrested but I am innocent?

For a person to face an arrest knowing they are innocent is a challenging and stressful situation. However, with the help of an experienced criminal defense attorney, they will be able to fight for their rights. 

Remember that in order for the police to arrest you, they need to have a valid reason. That is, a probable cause. Our lawyers recommend in these cases not to resist arrest to avoid possible police outrages. 

On the other hand, the police will have to prove the guilt of the arrested person, not the other way around. The burden of proof rests with the arresting officer. During the court appearance, their attorney will be able to prove their innocence.

Note: If the person resists arrest, even though they are innocent, they could face this charge and be convicted.

Can a resisting arrest charge in California be dropped?

Yes. As long as the person proves their innocence or the prosecution does not have probable cause. Otherwise, the accused person must be released.

You may also be interested in reading our article on how to clean a criminal record.

What happens if I lie to the police?

As stated above, providing false information to the police is also punishable as a misdemeanor. 

Similarly, a person can be charged with resisting arrest in California, as described in section 148a PC, for:

• Going to the crime scene and taking pictures or video of the scene while the officer is working there.
• Taunting or sabotaging the work of law enforcement officers during a proceeding.
• Remaining at the scene of an accident or crime after receiving an order to clear the scene.
• Grabbing a firearm or taking the regulation weaponry from a police officer.
• Deliberately disrupting or interfering with police radio communications. 

When the crime is committed against several officials, the person could be convicted of multiple violations of the law.

Do you know what the penalty of perjury in California is? In the link you will find everything on the subject.

Is it also considered illegal to record a police officer during an arrest?

No. Following an amendment to the law in 2015, California allows recording or photography while an arrest is being made. Especially, if during the execution of the arrest there are arguments or altercations between the officer and the suspect.

Only that whoever is recording the event cannot interfere with the police. They must remain where they currently are without obstructing the officer’s work. The other condition is that that person has the right to be in that place at the time.

If you are facing a resisting arrest charge in California, give us a call and we can defend you. Our criminal lawyers have treated this type of case with great success for over 40 years. Contact our office now and we will arrange a professional, no obligation consultation for you.