Resisting Arrest

Resisting Arrest

Penal Code Section 148(a)

What Does Penal Code Section 148 say?

Penal Code section 148 makes it a crime to wilfully:
  • resist
  • obstruct, or
  • delay
a peace officer or an Emergency Medical Technician (EMT) in the performance of their lawful duty.​

Is This a Misdemeanor of a Felony?

In almost all cases this crime is a misdemeanor and is punishable by up to a year in the Orange County jail. However, if the defendant also attempted to remove or take a weapon from a peace officer, then resisting arrest can be charged as a felony punishable by up to three years in the state prison.

What Must the DA Prove?

In order to be convicted of resisting arrest under Penal Code 148(a) the District Attorney (DA) must prove each of the following elements beyond a reasonable doubt:
  1. That the conduct in question was willful;
  2. That the conduct amounted to resisting, obstruction or delaying;
  3. That the victim was a peace officer or an EMT and that the defendant knew or should have known it; and
  4. That the peace officer or EMT was performing a lawful duty.

    1. Willful Conduct

Conduct is willful if the defendant intended to do what he or she did. For example:
Dan was arrested for DUI. While attempting to handcuff him, Dan tripped on the curb, falling to the ground and sending the officer tumbling over him.
In this example, Dan’s conduct may initially appear to the officer to be “resistance”. But since Dan did not intend to pull away from the officer he cannot be convicted of resisting arrest.

    2.    Resisting, Obstructing or Delaying

Whatever it is that the defendant did, it must amount to the legal definition of resisting, obstructing or delaying. The legal meaning of these terms is defined by case law. For example:

The police respond to a noise complaint at a loud house party. When the officers arrive they tell the crowd to quiet down or they will shut the party down. Darren yells at the officers “why are you jerks always ruining a good time.” The officers arrest Darren for obstructing them in their official duty.
In this case, Darren’s criminal defense attorney will likely provide the court with case law holding that criticism of the police, and even swearing at them, is protected by the First Amendment of the Constitution. Thus, Darren’s conduct cannot be considered obstruction. 

3.    Peace Officer or EMT

The DA must prove that the “victim” was either a peace officer or an EMT and that the defendant knew or should have known this. For example:
Doug locked his keys in his car in a shopping center. He got a wire hanger from the dry cleaner and was trying to break into his car when an undercover police officer saw him. The officer ran up to Doug and told him to put his hands against the car and spread his feet. When Doug refused the undercover officer arrested him for resisting, obstructing or delaying a peace officer. Doug’s criminal defense attorney in Orange County will assert that Doug did not know the man in a business suit was really a police officer. 

4.    Lawful Performance of Duty

In order to be convicted of resisting arrest the officer (or EMT) must be performing legal duty. For example:

Drew is pulled over for speeding by the Irvine police for speeding. The officer, in full uniform, asks Drew to step out of the car. Drew complies. The cop then pats Drew down for weapons. Drew instinctively feels that such invasive behavior is wrong and pulls away from the officer. The cop arrests Drew for resisting him in his lawful duty.
In this case Drew’s Orange County criminal defense lawyer should present the court with case law holding that a cop can only perform a pat-down search if there is reason to believe, based on articulable facts, that the person being searched is armed and dangerous. Since the pat-down search was illegal the cop was NOT performing a legal duty. The case should not only be dismissed but Drew will have legal cause to sue the cop for violating his 4th Amendment right to be free from unreasonable search. 

What Will Happen in Court?

When you were released from custody you were either given a citation or you signed a promise to appear. This will have the date and the court location where you must appear. At your first court appearance, called an arraignment, the judge tells you and your Orange County criminal defense attorney exactly what you are being charged with. Also, your criminal defense lawyer will get a copy of the police report and complaint. If you are only charged with a misdemeanor your lawyer can appear in your place.

First Court Appearance (Arraignment)

At this early stage a plea of “not guilty” is almost always entered and another court date, called a “pretrial conference” is set for several weeks later. This gives your criminal defense attorney valuable time to review the police report, witness reports, audio/video recordings and other evidence in your case. Your criminal lawyer will likely interview witnesses and conduct legal research on any of the various legal issues that may arise in your case. Hiring a skilled Orange County criminal defense attorney with the intelligence and skill to spot these legal issues can make all the difference in your case. 

Pretrial Conferences

A typical case requires three or four pretrial conferences for your attorney to review all the evidence the DA intends to use against you, to research legal precedent supporting suppression issues, and to file and litigate any suppression motion in your case.
If there are no suppression issues, your attorney must then determine if the DA can convict you with the evidence they have.
If the evidence against you appears strong, your defense attorney must then negotiate the best possible deal for you. Your right to a trial is your currency. Your attorney must also present you to the judge and DA in the most favorable light. Often, the only window into your personal life is through your attorney. If your criminal defense attonrey is effective at doing these things, you’re likely to get the best possible offer from the DA or the Judge.
Finally, if custody time seems unavoidable, a capable defense lawyer will thoroughally explore sentencing options to keep you out of jail. These alternatives include home confinement where you serve your jail sentence at home with an electronic bracelet, leaving only for work or for necessities of life. Other options include community service or doing labor for Caltrans. If jail is unavoidable a judge can allow you to serve your time in a “private” jail, (“pay and stay”), where you are released for up to 12 hours a day to go to work. Another option is to serve your jail time on the weekends–checking in Friday night and being released Sunday night. A competent defense attorney will zealously push to get you an alternative sentencing option.


If you do have a defense or if the DA’s evidence is not very strong, and if you don’t want to accept whatever the DA is offering, your case will be set for trial. Very few cases make it to trial; maybe one in fifteen. At trial, the DA presents whatever admissible evidence they have against you to twelve regular people. In order to convict you the Prosecutor must prove every element of every charge against you by proof beyond a reasonable doubt, the highest evidentiary burden in law. Your criminal defense attorney must be able to persuasively point out the weaknesses of the prosecutor’s case and  deftly present your defense, if you have one. 
If even a single juror finds that the prosecutor hasn’t met this heavy burden, then you can’t be convicted. (Hung jury) If all twelve jurors agree that the prosecutor hasn’t met its burden of proof, then a verdict of not guilty must be rendered. 

Free Telephonic Consultation With A Criminal Defense Lawyer In Orange County

If you or someone you love is facing charges for resisting arrest, call The Law Office of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced criminal defense lawyer in Orange County. EJ is happy to explain what will happen in court and what your possible defenses are. EJ is available on weekends.