According to California law (Penal Code Section 148), resisting arrest, as a misdemeanor, occurs when someone willfully resists, delays, or obstructs a police officer or emergency medical technician. If you are convicted of this crime, you will be punished with no more than one year in jail and a $1,000 fine.

However, resisting arrest can also be charged as a felony under Penal Code Section 69.  This law makes it a felony to:

1. by means of any threat or violence, deter or prevent an executive officer from performing any duty imposed upon the officer by law, or;
2.  knowingly resist, by use of force or violence, the officer, in the performance of their duty,

This offense is punishable by a maximum of three years in prison and a fine of ten-thousand dollars ($10,000).

What is an Executive Officer?

While the names makes it sound like it involves resistance against a different type of person, the same government officials are included in both the misdemeanor and felony resisting arrest charges.

What makes the crimes different is that the felony charge involves the use of force or intimidation, while the misdemeanor charge does not. The former is, thus, a more serious crime known as a “wobbler.” This means that the prosecution has the option to charge it as a misdemeanor or as a felony.  Again, when charged as a felony, the penalty is up to three years in prison.

Examples of Resisting Arrest

The felony and misdemeanor charges are very closely related. The difference between aggressively and non-aggressively resisting an arrest is quite subtle.

While there is no definitive list of actions that qualify as a misdemeanor, the following are examples that typically fall into the category of the lesser offense:

• Delaying the officer by providing false information
• Interfering with the ability of peace officers to communicate or travel
• Refusing to leave or back away from an area where the officer is engaged in legal duties
• Pulling away or running away when the officer is attempting to arrest you.

How to Fight Resisting Arrest Charges

Unfortunately, if there isn't video footage of an arrest, police officers can easily add resisting arrest charges. They only need to claim that you somehow impeded their ability to perform a legal duty.

Most officers these days have both body-worn and vehicle cameras.  However, it is not, by itself, illegal to record interactions with police in California.

You can also dispute the legality of the arrest. Resisting arrest charges only apply to legal arrests.  Your attorney should review all video evidence, witness statements and the officer's history of dishonesty in an effort to have your charges dismissed or reduced.

Felony or Misdemeanor?

There is no simple answer to whether resisting arrest is a felony or misdemeanor. If a prosecutor believes you used force or intimidation to prevent or delay an officer, they have the option to charge it as a felony. Whether they will, though, often depends on the circumstances of your arrest as stated in the police report.

Have you been charged with resisting arrest/obstruction? Contact us today to discuss how you can fight these charges with one of our criminal defense attorneys.