Better Call Glew: When Am I Resisting Arrest?

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Jay Brockman
My boyfriend was arrested for DUI and when the cop went to put the handcuffs on him he pulled his hands away. He was just afraid and reacted without thinking. The officer told him to hold still while they put the cuffs on. My boyfriend did cooperate the second time. The cop was super pissed that he tried to pull away at first and kept telling him that he was going to charge him with resisting arrest. What should he do?

First off, I would recommend he immediately retain counsel, to start working his case. This is of paramount importance, and I say this because a Penal Code §148 conviction carries with it a scarlet letter of sorts; anytime a law enforcement officer pulls him over for a minor traffic violation, or otherwise interacts with him, if he has a §148 conviction on his record, law enforcement officers will infer from his conviction that he does not have respect for authority and is a "trouble maker."

This leads to heightened scrutiny from law enforcement, which I don't think anyone would say is a good thing. To be found guilty of violating §148, three "elements" must be met: That he willfully resisted, delayed, or obstructed an officer or EMT; when the officer or EMT was engaged in the performance of his/her duties; and that he knew or reasonably should have known that he/she was an officer or EMT engaged in those duties.

From what you have told me, your boyfriend has technically violated §148. You don't have to punch or shove a police office to violate §148; the simple act of pulling your hands away, when an officer is trying to arrest you, is sufficient. I have handled numerous cases where my client has given a wrong name at first and later corrected themselves and it became a 148 case. I even once heard of a person charged with resisting arrest for not pulling his license out fast enough. That is obviously an extreme example and clearly not the kind of acts the law was intended to cover.

The point is that obstructing an officer can be broadly construed to cover many actions and if the officer is upset they will be more prone to recommend a 148 filing. Is all hope lost? No!  Given the facts, namely that your boyfriend didn't violently resist, an experienced criminal defense attorney should be able to get the charges dropped to a Penal Code §415, "disturbing the peace," misdemeanor, or possibly a §415 infraction, although the latter is less likely.    Unfortunately, your boyfriend provides a case study in how it pays huge dividends to remain silent yet compliant when interacting with law enforcement, as situations can rapidly escalate in very negative ways.

Email questions to glewkimlaw@yahoo.com. And remember, Better Call Glew!

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