RESISTING ARREST

It’s a lot easier than you would think to be charged with resisting arrest in Arizona. You don’t even have to use physical force to get charged. Making your body go limp or stiffening your body when police are trying to arrest you can result in a charge of resisting arrest. Also, in Arizona, you can be found guilty of resisting arrest even if your arrest was not legally justified by the police.

However, you must make sure that you have not been overcharged for resisting arrest when all you have done is argued or criticized the police. Also, the police often wrongfully escalate situations and use excessive force to arrest people, even when making legal arrests. The police are not allowed to use excessive force when making arrests. So, you may have been justified in using force to resist arrest if excessive force was used against you.

RESISTING ARREST DEFINED

Under ARS 13-2508, there are three ways that a resisting arrest charge can be committed in Arizona:

1. Using or threatening physical force against an officer – Class 6 Felony
2. Creating a substantial risk of causing physical injury to an officer – Class 6 Felony
3. Passive resistance – Class 1 Misdemeanor

Even if multiple officers were involved in trying to arrest you, you can only be charged with one count of resisting arrest. But, currently, Arizona law allows all of the officers whom you resisted to be designated victims of your single charge of resisting arrest. This means that the officers can refuse to be interviewed before trial because of their rights as victims.

FELONY RESISTING ARREST

A felony resist arrest charge pursuant to ARS 13-2508, requires the prosecution prove that:

1. A peace officer, acting under official authority, sought to arrest you; and
2. You knew, or had reason to know, that the person seeking to make the arrest was a peace officer acting under color of such peace officer’s official authority; and
3. You intentionally prevented, or attempted to prevent, the peace officer from making the arrest by:
   • using or threatening to use physical force against the peace officer or another person, or
   • using any other means creating a substantial risk of causing physical injury to the peace officer or another person.

Using or threatening to use physical force. You can be convicted of resisting arrest when you use or threaten to use physical force against peace officers trying to arrest you even if the officers were not injured or not at risk of injury. So, even “minor scuffling” can be considered resisting arrest when you use physical force.

Examples:

• Kicking or trying to kick officers as they attempt to arrest you.
• Pushing an officer off of you when he is trying to handcuff you.
• Swinging a fist at an officer when he is trying to arrest you.
• If you are charged with resisting arrest based on using or threatening to use physical force against an officer, then you will typically also be charged with committing aggravated assault on the officer. When there are no injuries to the officer, then the aggravated assault is a Class 5 Felony. When there is an injury to the officer (even a minor cut or bruise), then the aggravated assault is a Class 4 Felony. Read more.

Substantial risk of causing physical injury. If you did not use or threaten to use physical force, then there has to be a substantial risk of causing physical injury to the officer (or another person who is present) for your actions to be considered resisting arrest. Substantial risk of physical injury does not mean substantial danger to the officer. It only means substantial risk of impairment of a physical condition.

Examples:

• You lie down in the road on your stomach with your arms under your body to prevent officers handcuffing you, while cars drive past.
• As an officer tries to handcuff you, you shout to a crowd of bystanders for help and someone throws a beer bottle that shatters and sprays glass on the officer.

MISDEMEANOR RESISTING ARREST

In 2012, Arizona added passive resistance to ARS 13-2508 and added another way a person can be charged with resisting arrest. It is classified as a less serious misdemeanor offense because passive resistance does not involve any use of force against or any risk of injury to peace officers.

Misdemeanor resisting arrest requires the prosecution prove that:

• A peace officer, acting under official authority, sought to arrest you; and
• You knew, or had reason to know, that the person seeking to make the arrest was a peace officer acting under color of such peace officer’s official authority; and
• You intentionally prevented, or attempted to prevent, the peace officer from making arrest by engaging in passive resistance.

Passive resistance. This means a nonviolent physical act or failure to act that is intended to impede, hinder, or delay the effecting of an arrest.

Examples of passive resistance include:

• Making your body go limp to make it difficult for the officers to arrest you.
• Running away from officers trying to arrest you.
• Hiding from officers who are trying to arrest you.
• Not opening the door when officers are trying to arrest you.

RESISTING ARREST SENTENCE

Felony resisting arrest is a Class 6 Felony. If you have no prior felony convictions, then your resisting arrest sentence could be:

• Probation, with anywhere from 0 days in jail to 12 months in jail.
• Prison is also a possibility, but not likely for a first-time offense. A prison sentence ranges from 4 months in prison to 2 years in prison.
• If you have prior felony convictions, then you face more time in prison and probation is not an option.

Misdemeanor resisting arrest or passive resistance is a Class 1 Misdemeanor. If convicted, you could be sentenced to:

• Probation, with anywhere from 0 days in jail to 6 months in jail.

DEFENSES TO RESISTING ARREST

The best way to get a resisting arrest charge dropped is to show the prosecutor or judge that the officer used excessive force. This negotiating tactic should be used carefully as giving over defense evidence at the wrong time may allow the prosecution to fix any problem they have with their case – contact an experienced criminal defense attorney beforehand. Other possible defenses include:

• Self-Defense Against Excessive Force. Peace officers are not allowed to use unnecessary or unreasonable force in making an arrest. It is a defense to use or threaten the use of physical force against an officer to resist arrest when the officer uses excessive force. This is a defense, even if the arrest is legal.
• Lack of Knowledge. This is when you had no reason to know that the person trying to arrest you was a peace officer. For example, maybe the peace officer was off duty, not in uniform, and did not identify himself as a peace officer to you before trying to arrest you.
• Lack of Intent. This is when your actions were not done with the intent to prevent a peace officer from arresting you. For example, you pull away from a peace officer when you have no reason to believe that you are under arrest and the officer just grabs you and tries to handcuff you, without saying anything.
• Mere Argument or Criticism. Mere argument or criticism of a peace officer by itself is not enough to convict someone of resisting arrest. This is a common defense in misdemeanor cases.

RESISTING ARREST LAWYER

It’s important to have an experienced and skilled resisting arrest lawyer on your side when faced with a resisting arrest charge. You need to ensure that your charge of resisting arrest was not made because an officer needed to justify his use of force against you. These situations often turn into your word against the word of the police officer. In these cases, it is absolutely necessary to have an experience resisting arrest lawyer to undermine the credibility of the officer and ensure the best defense possible. Contact the criminal defense attorneys at Feldman & Royle for a free consultation to discuss your case today.

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