Accused of Resisting Arrest in California?

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Penal Code 148

Resisting arrest is one of the trickiest charges to understand and can easily be misconstrued and abused by law enforcers, willfully or out of ignorance sometimes. Yet, it's very critical that both the accused and the officer executing an arrest have the correct grasp of provisions of Penal Code 148 as applicable in Visalia, California. A resisting arrest attorney can be even more helpful because they focus on this type of offense.

“Resisting arrest” is the common term for Penal Code 148 and is a misdemeanor offense. Mostly, the charge is brought alongside another offense, especially the one for which the arrest was made.

The need for the accused to understand the legal issues around Penal Code 148 stems from the ease with which the law can be abused, quite often by law enforcement, and to the disadvantage of the person being arrested. For instance, the outcome of a resisting arrest case can differ significantly, if excessive force was used or the arrestee was injured during the arrest. The same is true where an illegal arrest has happened.

Elements of Resisting an Arrest in California

As per the legal definition of “resisting an arrest”, three core elements have to exist for the criminal charges to hold water from a legal perspective. Thus, the burden of proof lies with the prosecution, which has to demonstrate that all the three elements were at play to prove guilt.

The thresholds are:

  • There was an officer on official duty, such as a peace officer or emergency medical technician (EMT), executing their mandate as provided for under the law,
  • There was an intention on the part of the accused to resist, obstruct or delay the execution of the officer's lawful duties and
  • The accused was aware or logically should have known that the person trying to make the arrest was a public officer or an EMT performing a lawful duty.

Battling “Resisting an “Arrest Criminal Charges” in Court

A resisting arrest Visalia lawyer can develop a sound defense based on evidence and legal reasoning that's specific to the type of charge to secure an acceptable court outcome.

Defense 1: Unlawful arrest or police misconduct: if an individual resists an unlawful arrest, he or she is not guilty of a “resisting arrest” offense. It follows that; a law enforcement officer lacks the legal mandate to perform an unlawful arrest, meaning that such an act is not part of his/her official duties.

An arrest is unlawful if it's executed:

  • Without an arrest warrant or probable cause,
  • After gaining an unlawful entry into someone's home,
  • On racial profiling
  • Using excessive or unreasonable force

Defense 2: Self-Defense: If an accused resisted arrest by fighting back in an incident where the public officer used excessive force, the right to self-defense of the accused is upheld. If in reaction to the use of excessive force by a law enforcement officer while making an arrest, an individual acts in a manner interpreted by the public officer as obstruction, the individual can defend themselves legally if they can show that:

  • They employed force they believed was reasonable to protect themselves from the officer and
  • They reacted in a way any reasonable person in the circumstances would have in self-defense.

Defense 3: False allegations: It's always a possibility that a law enforcement officer, being human, can file false “resisting arrest” charges. The accused could always deny the charges and work with their criminal lawyer to obtain supporting evidence such as eyewitnesses, tape recordings, and even past misconduct of the officer who made the arrest.

Penal Code 69

California's Penal Code 69 or “resisting an executive officer” is a more serious offense and may carry the weight of a felony. Convictions usually result in substantial fines and jail time.

The offense has two main elements:

  • intentional and unlawful attempt to obstruct an executive officer from carrying out a lawful duty, using threats or violence and
  • forceful or violent resistance or obstruction to lawful conduct of an executive officer

An executive officer would include a police officer, judge, attorney, elected official, and others.

Possible defenses to the charges include:

  • The accused acted to prevent an illegal act/conduct of the executive officer
  • The accused resisted the officer in their carrying out of an illegal duty
  • Action in self-defense if the executive officer used excessive force, even if the intended arrest was originally lawful
  • Police misconduct.

Obtaining the help of a Visalia resisting arrest lawyer ensures that the constitutional rights of the accused are upheld in the face of the charges. Contact the Law Offices of Christopher Martens today.



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