Resisting Officer / Resisting Arrest
Definition, Law and Penalties
Resisting an Officer is an offense included in the Obstruction of Justice chapter of the Florida Statutes. There are two statutes that address resisting an officer: 843.01, Resisting Officer With Violence; and 843.02, Resisting Officer Without Violence. Predictably, the statute that contemplates violence is the felony charge, while nonviolent resistance is a misdemeanor.
Resisting an officer without violence is defined as resisting, obstructing or opposing any law enforcement officer who is in the lawful execution of a legal duty. This goes beyond the stereotypical scenario of resisting an arrest; any interference in an investigation can constitute Resisting Without Violence. Examples of resisting include refusing to get out of the car or continuously interrupting law enforcement while they are interviewing a witness. A police officer can charge someone with resisting even when the person was not a suspect of any other offense; the act of resisting, obstructing or opposing a police officer alone constitutes a basis for an arrest. The crime of Resisting Without Violence is a first degree misdemeanor, punishable by one year in jail and a $1000 fine.
Resisting an officer with violence has nearly the same definition as the lesser offense, with the obvious addition of “offering or doing violence” to a law enforcement officer as a method of resistance. A subtler difference between the two related offenses is the insertion of the word “knowingly” in the text of Resisting With Violence; this serves as the mens rea or state of mind required to convict a person accused of Resisting With Violence. Resisting With Violence is a third degree felony punishable by 5 years in prison and a $5000 fine. Similar to Resisting Without Violence, the statute for Resisting With Violence criminalizes actions of resisting, obstructing and opposing law enforcement well beyond the traditional action of resisting arrest.
Defenses
For some law enforcement, a Resisting charge is the go-to accusation when a person is being difficult. Being “difficult,” however, is not the standard for charging someone with a crime. Due to police tendency to overcharge defendants, we must closely scrutinize Resisting charges and determine if they are really valid.
A common mistake made by law enforcement when charging someone with Resisting is failing to articulate the “duty” that the police were lawfully executing at the time of the alleged resisting. If a police officer was not in the course of an investigation, an arrest, service of process, or some other lawful action within the scope of his or her job, a person cannot be accused of “resisting” the police. A defendant should investigate what law enforcement was doing when they accused the defendant of resisting.
Another potential issue with Resisting charges is that officers may forget to identify themselves to the accused. It could be that a police officer is in an unmarked patrol car, in plain clothes, and not carrying a badge. If a police officer is not readily identifiable, a Resisting charge may be invalid unless that officer timely reveals his or her identity.
Last but not least, an officer may get it wrong when determining what constitutes resisting, obstructing, or opposing. A refusal to cooperate may not always constitute resisting. Verbal disrespect is not resisting. Having an attitude is not resisting. Certain actions, though perhaps unwise, should not be criminalized, and the legislature understands this. We must, therefore, hold law enforcement to the appropriate standard and notify the courts when they have acted incorrectly.
Charged with Resisting? Call Us
An accusation of Resisting exposes you to heavy fines, jail time, and a criminal record. Do NOT face this charge alone, even if (ESPECIALLY IF) you believe you are innocent. Criminal cases rarely just go away; you will likely face a series of hearings, the discovery (evidentiary) process, unsettling plea offers, and possibly trial.
Casanova Law is a criminal defense law firm in Wellington, Florida with extensive experience in criminal law and litigation, including litigating charges of Resisting With Violence and Resisting Without Violence. Attorney Lourdes Casanova is a former prosecutor with thousands of criminal cases under her belt, and a great reputation in the legal community. Let our legal team put you at ease with our knowledge, skills, insight, and dedication.
If you have been charged with Resisting With Violence or Resisting Without Violence, contact Casanova Law today. Our goal is to get your case dismissed.
(561) 236-5340
info@casanovalawpa.com
FAQs About Resisting Charges
Is resisting arrest illegal?
In Florida, resisting arrest is a crime if the police have probable cause to arrest you. If a police officer is wrongfully arresting you, you can legally resist arrest in a nonviolent manner. However, it is difficult to make the call in the heat of the moment whether law enforcement is in the lawful execution of a legal duty. For this reason, it is best to NOT resist arrest and instead seek legal and administrative relief later.
Can I resist the police?
You can only resist the police if they are not in the lawful execution of a legal duty. Even then, you can never resist with violence.
What is the sentence for resisting arrest?
A misdemeanor resisting charge is punishable by a year in jail and $1000 fine. A felony resisting charge carries a maximum sentence of five years in prison and a $5000 fine.
What does resisting arrest mean?
Resisting arrest is resisting, obstructing or opposing law enforcement in the course of a lawful arrest.
How is resisting arrest a crime?
Resisting a lawful arrest is a criminal offense pursuant to Florida Statutes 843.01 and 843.02. If an arrest is unlawful, resisting is still a crime if conducted in a violent manner.
Is running from police resisting?
Running from police can constitute Resisting Without Violence, a first degree misdemeanor.
Can you beat a resisting arrest charge?
There are several defenses to a resisting charge, including:
- Self-defense against unreasonable use of force
- Unlawful arrest
- False allegations
- Police failed to provide identification
- Police were not in the lawful execution of a legal duty
In addition to legal and factual defenses, a person accused of resisting may have a chance at dismissal if offered diversion. An experienced criminal defense attorney can negotiate with the prosecution on the defendant’s behalf in attempts to secure a plea offer that can ultimately result in charges being dropped.
Why should you not resist arrest?
Resisting arrest can result in additional criminal charges and police escalation of force. Whether or not you believe you are justified in resisting law enforcement, it is better to comply with orders in the moment and take legal action afterward.
Is resisting a crime of violence?
Resisting is not necessarily a crime of violence. The crime of resisting police can be charged with or without the element of violence. When charged as a violent offense, the official charge is called Resisting With Violence, a third degree felony. When charged as a nonviolent offense, it is called Resisting Without Violence, a first degree misdemeanor. Examples of resisting without violence include running away from police, refusing to follow an order, refusing to get out of the car, and continuously moving to avoid being handcuffed.
Is resisting arrest a felony in Florida?
Resisting arrest can be charged as a misdemeanor or felony in Florida, with the felony charge reserved for cases involving violence.
Who is considered an officer for purposes of a resisting charge?
An officer for purposes of resisting charges includes:
- Parole officers
- Employees of the Florida Department of Law Enforcement (FDLE)
- Correctional officers
- Community Service Aides