The crime of “resisting arrest” encompasses much more than resisting – it includes interfering with a law enforcement officer in the lawful performance of duties, which can cover a wide variety of conduct, such as not taking your hands out of your pockets when ordered to do so, trying to run away from the officer, or trying to avoid being handcuffed.
In some of these cases officers can use excessive force when making an arrest such that the person being arrested feels compelled to defend oneself and thus may not be guilty of the resisting arrest charge. In these situations, a defendant is entitled to file a motion (called a “Pitchess motion”) to seek information about prior complaints by other arrestees of excessive force by the same officer, if filed within the past five years. At this motion, the judge will conduct an in-camera (in chambers) hearing where the custodian of the officer’s personnel file is required to bring the file to court for examination by the judge alone, after which the judge determines whether there is any “discoverable” information in the file that must be turned over to the defendant. If the officer involved has a reputation for being “heavy-handed” in making arrests, sometimes others have complained about it and the information can be helpful to the defense.
Unlike most misdemeanors, which carry a maximum of six months in jail, resisting arrest carries a one-year maximum, so even though it is only a misdemeanor charge, it is a serious offense.
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The information contained herein is not intended to be advice concerning your individual situation, but rather is general in nature. Please rely upon your own attorney's advice regarding your specific case.
© 2015 Attorney Richard Muir
122 Civic Center Drive, Suite 102, Vista CA 92084
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