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Resisting Arrest

You can be charged with resisting arrest if, either with a physical struggle or by fleeing from the officers, you try to avoid capture by police. In many situations, it doesn't matter if the officer has a warrant to make the arrest. An officer can arrest you if they have probable cause or think you are in the middle of committing a crime.

Elements of Resisting Arrest

Generally, you can be charged with resisting arrest if you obstruct an officer from making a lawful arrest or performing other official duties. But specific elements a prosecutor needs to show vary from state to state. So, make sure to research your state laws to understand what applies in your case.

The prosecutor must prove, beyond a reasonable doubt, all the elements of the crime for you to be found guilty. These elements may include:

  • Intentionally obstructing or resisting an arrest
  • You knew or reasonably should have known that the person you were resisting was an officer
  • Acting or threatening to act violently
  • The officer was discharging their duties in a lawful manner

Penalties for Resisting Arrest

The penalties for resisting arrest vary from one state to the next, as they are established by the state governments. In Virginia, for example, doing this could qualify as a Class 1 misdemeanor.

Generally, the crime of resisting arrest is charged as a misdemeanor or a felony depending on the severity of the actions of the person arrested.

If you have been charged with resisting arrest you could be subject to the following penalties:

  • Jail time
  • Fines
  • Probation
  • Community service

Defenses to a Resisting Arrest Charge

If you were charged with resisting arrest, you might be entitled to the following defenses:

  • Self-defense: If the arresting officer was using unnecessary force to arrest you, you are justified to resist the arrest to protect yourself.
  • Unlawful arrest: Some states allow you an resist the arrest if the arrest was unlawful, to begin with. This can include arrests without probable cause or an arrest warrant.
  • No damages: Some states require the prosecutor to show harm. In such cases, you can argue the conduct did not cause a substantial risk of injury to the officer.
  • Lack of knowledge: You can raise this defense if you didn't know the person trying to arrest you was a police officer. This can happen if the officer was not in uniform and didn't identify themselves as an officer.

Understanding Every Situation

Since resisting arrest is a crime on its own, you should be very clear with the police if unsure of what you are legally allowed to do. For instance, if they are questioning you, you may want to ask if you are free to leave before walking or driving away.

Most of the time, it will be clear whether you are free to leave, but you certainly do not want to accidentally bring about charges simply because you think you are allowed to go when you are not. When in doubt, ask if you are free to go, and the officer is obligated to tell you.

Should You Resist Arrest If You Are Innocent?

If you find yourself in a situation where an officer is trying to arrest you for a crime you did not commit, it is best to allow the arrest to take place. As stated earlier, resisting arrest by itself is a crime, even if you are innocent.

If you believe you were wrongfully arrested, the best way to deal with the situation is through the proper legal procedure. For instance, the officers need to have probable cause to arrest you, and you will be released if you show that they did not. Tell officers you want to speak to an attorney as early in the process as possible. A criminal defense attorney can help you figure out what to do next.