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Mark L. Deniz, Esq.

San Diego Resisting arrest Attorney. PC 148(a)(1). How to examine and get the best possible outcome on a PC 148(a)(1) resisting, delaying, and obstructing charge

On Behalf of | Oct 7, 2020 | Firm News |

San Diego Resisting Arrest Defense Attorney

Penal Code PC 148(a)(1) codifies the law on resisting arrest. Section 148 penalizes resisting, obstructing, or otherwise delaying an officer or Emergency Medical Technician (EMT) in performing their duties.

What constitutes Resisting arrest in San Diego County?

The law reads as follows:

An individual may be charged with resisting arrest under Penal Code Section 148(a)(1) if they (1) willfully obstructed, resisted, or delayed a police officer or EMT, (2) while the officer or EMT were performing their duties, (3) when they should have reasonably known that the person was an officer or EMT engaged in their duties.

The key to these cases is to examine the facts to determine if the prosecution can prove EACH and EVERY element.

It is analogous to a chef, who does not have every ingredient.  Without EVERY element, they proceed cooking.  A skilled attorney knows if the facts can satisfy the elements.  Be proactive and call the Law Offices of Mark Deniz at 858-751-4384.

What are the penalties if convicted of resisting arrest?

The penalties for a conviction of resisting arrest under Section 148(a)(1) are

  • a fine of up to $1,000,
  • up to six months in county jail, or
  • both.

What are the defenses to California resisting arrest?

There are several defenses that can be raised for charges of resisting arrest depending on the specific facts of each case.  These defenses are clear indications the prosecution cannot meet their burden.

  • Self-defense
    An individual is allowed to defend them against an unlawful arrest. However, under California’s self-defense laws, the individual defending them must act in a way that is reasonable under the circumstances. For example, if an officer has an individual subdued and in handcuffs and starts beating her, she is allowed to use as much force as reasonably necessary to fend the officer off.
  • Unlawful arrest
    The police must be in the LAWFUL performance of their duties.  If the arrest procedure is in any way unlawful, an individual cannot be charged with resisting arrest, because officers are not engaged in one of their duties. For example, if the police break into a suspect’s house without a warrant and put the individual in handcuffs, the arrest is unlawful and the individual cannot be charged with a violation of Section 148 if he resists.
  • Police misconduct
    An officer engages in misconduct when they routinely use excessive force, perform illegal arrests, enhance or make up charges, etc. All of this will be recorded in the officer’s personnel file. If an officer is suspected of having engaged in some kind of misconduct, a defense attorney can file a “Pitchess motion” which requests this information in the officer’s personnel file to help prove a case of police misconduct.
  • False allegations
    Many police officers may try to seek revenge on an individual by trumping up charges of resisting arrest when an individual may have simply been dismissive or uncooperative. California courts have found that, standing alone, slowly complying with an officer’s request; criticizing or swearing at an officer (as long as not using fighting words); or refusing to give identification in a police car on the way to jail is not sufficient for a conviction under Section 148.

A skilled attorney knows if the facts can satisfy the elements.  Be proactive and call the Law Offices of Mark Deniz at 858-751-4384.