Is Resisting Arrest a Felony?

Last Modified: August 26, 2022
August 22, 2022 | Rabin Nabizadeh | Felony DUI, General Topics

is-resisting-arrest-a-felonyWhen state law enforcement suspects someone of a crime and decides to arrest them, they may attempt to resist. But is resisting arrest a felony? In general, yes, it is a crime to suppress an arrest.

Resisting an arrest is a form of obstruction of justice, a serious offense. The penalty for resisting arrest varies depending on the circumstances. But, it often results in imprisonment and a life-long criminal record.

In some cases, it may only fall under a misdemeanor offense. This classification is typically the case when the resistance does not use violence. Yet, it could still appear on the record. Additionally, some states have laws that make resisting arrest a felony, regardless of the circumstances.

If you face charges of resisting arrest, you must speak with an experienced criminal defense attorney. Here at Summit Defense, we can assist you in navigating the legal system and the entire process of your case. Call us at (866) 537-2584 or use our contact form to schedule a free consultation.

How To Identify Resisting Arrest?



Law enforcement may classify any violent actions as “resisting arrest” or “obstructing police operations.” It could take the form of aggressively evading law enforcers, showing a nonviolent physical act, or attacking a police officer as he approaches carrying handcuffs.

Any act or exertion of physical force preventing enforcers from making a lawful arrest is punishable by the law. However, limitations and exemptions exist within this law, and many ways exist to refute such an accusation. One known defense is to argue that the arresting officer is acting unlawfully or out of a peace officer’s official authority.

Another thing to remember when charged with resisting arrest is that the arresting officer can only charge you once, even if several police officers attempted to take you into custody.

Different states may have their own legal context on what “resisting an arrest” means. In California, the state established the California Penal Code § 148(a), which outlines the state’s legislation about “resisting an arrest.” The prosecution must demonstrate the following to convict you under the law:

  • Willfully Resists: The person resists or meant to take any action required to violate the law; and,
  • Resisted, Delay, or Obstruct: You have hindered a public officer from carrying out their official duties; and,
  • Officer or Emergency Services Technician: You chose to resist arrest from a peace officer, uniformed officer, or emergency services technician; and,
  • Performing Lawful Responsibilities: You chose to obstruct the officer from carrying out their lawful responsibilities; and,
  • Knew or Should Have Known: The defendant knew they were interfering with an officer. Additionally, a reasonable person should have known.

According to this legal statute, violators of this law could face a year of imprisonment or up to $1,000 penalty fines.

What Are the Elements of Resisting an Arrest?

The prosecution must provide tangible proof of certain aspects of a resisting arrest, such as proof of causing physical injury, presence of a substantial risk, or evidence of passive resistance. Enumerated below are the elements of resisting arrest:

  1. The suspect resisted being taken into custody. Even when the outcome or harm produced was not what the arrestee wanted, they still fought. It precludes the use of mishaps or misunderstandings as justification for criminal charges.
  2. The defendant provoked or threatened to incite violence against law enforcement. An officer must be struck or shoved to meet this criterion. Threatening to use force or implying that you will use one also counts.
  3. The police officer was performing their job. The police performed official tasks, such as stopping traffic or investigating a crime. It is still possible to face charges of resisting arrest if an officer makes a false arrest for a crime.

When all or most of these elements are proven by the court, the defendant can be charged with resisting arrest.

When Is Resisting Considered a Felony?



Different states may provide varying definitions of what they consider a resistance to arrest. In California, the scope of California Penal Code § 148(a) is not limited only to police officers. This law also extends to impeding an emergency medical technician (EMT) from carrying out his official duties.

When trialing a defendant for resisting an arrest, the prosecutor must demonstrate the following factors to solidify suspicion beyond a reasonable doubt:

  • The defendant knowingly delayed, impeded, or resisted a police officer or EMT,
  • The defendant acted in this manner while the arresting officer/EMT was performing his official duties, and
  • The defendant knew or ought to have known that the officer or EMT was working on official business.

Resisting arrest is a crime with a broad definition. The actions considered part of their “lawful duties” involve many tasks related to their line of work. They are not just limited to making an arrest.

If the peace officer uses excessive or unnecessary force while carrying out their lawful duty, they are not acting legally. In such circumstances, attempting to stop an officer from using excessive force would not constitute a resisting arrest.

Although resisting arrest is fairly self-explanatory behavior, the law also covers additional actions that you might not be aware of. The following are:

  • Using a fake name when speaking with the police;
  • Preventing a police officer from reaching the crime- or accident-scene;
  • Preventing a criminal witness from being interviewed by the police; and
  • Attempting to obstruct police when they are keeping an arrested person under observation.

Many of these situations are typical during demonstrations and riots. It explains why so many people got accusations of resisting arrest even when they didn’t actually commit a crime.

Misdemeanor Evading Arrest



The Misdemeanor Resisting Arrest Statute is stated in California Vehicle Code (CVC) § 2800.1. The provisions apply to anybody who “operates a motor vehicle with the intent to:




  • dodge; 
  • wilfully flee; or, 
  • otherwise seeks to elude a pursuing peace officer’s motor vehicle.

The statute requires willful or wanton disregard for safety in addition to all five different facts proven at trial. If the court finds the defendant guilty under CVC 2800.1, you may face sentences:

  • Up to one year or less in county jail; or,
  • $1,000 (one thousand dollars) in fines; or,
  • both a penalty and incarceration.

A judge may also impose additional requirements as punishment for the misdemeanor. The requirements imposed for misdemeanor resisting arrest include:

  • Community service; 
  • Labor; 
  • Therapy; and 
  • Significant court fines 

Law enforcement would be able to see any conviction for resisting arrest during the subsequent offense. This situation may make dealing with them very challenging.

Penalties for Resisting Arrest



You might face charges of resisting arrest if it turns out that you defied a legal arrest. It applies even if you believe it to be illegal. In certain areas, obstruction or disorderly conduct laws also cover resisting arrest.

Crimes involving resisting arrest can either be misdemeanors or felonies. Some states reserve heavier felony penalties for offenses involving people who act violently. They assign lesser misdemeanor fines for crimes involving no force.

For instance, in Nebraska, it depends on the specifics of the allegation. Resisting an arrest might be either a Class I Misdemeanor or a Class IIIA Felony.

First-time offenders typically face Class I Misdemeanor charges, and they will face up to one year sentence in county jail and a fine of $1,000. A Class IIIA Felony charge is for a second or subsequent violation and bears a maximum of three years of county jail time, 18 months of post-release supervision, or a $10,000 fine (or both).

If the suspect uses a deadly or dangerous weapon to resist arrest, the crime is a Class IIIA felony.

If the court finds you guilty of resisting arrest, the judge will decide your punishment based on the specifics of your case. At the moment of sentencing, the court has the following options:

  1. One of the following four legal punishments:
    1. Misdemeanor resisting arrest: up to a year in county prison;
    2. Felony offense of resisting arrest: 16 months, 2 or 3 years in county jail;
    3. Misdemeanor violence on a police officer: up to a year in county jail; and
    4. Felony offense for battery on a police officer: 16 months, two years, or three years in county jail.
  2. Place you on probation and provide you a maximum of a year in county jail as punishment.
  3. Put you on probation without jail time but with the additional conditions imposed.
  4. Set you up with a probation officer and put you on formal probation

The court will impose particular probationary conditions related to the crime you’re guilty of while on probation. These probationary conditions will include:

  • Break no laws (other than a traffic infraction)
  • Visit your probation officer as often as your probation terms;
  • Carry out a community service;
  • Participate in counseling or anger management;
  • Random drug testing; and
  • Random examinations of you or your property.

Only a few of the probationary conditions that a judge can impose are listed above. The court has the authority to sentence you to the longest possible period if any of these conditions are broken.

Defenses for Resisting Arrest



The defense may be evident when examining the elements of the offense. Following are the main defenses used when accused of resisting arrest:




Out of Self-defense

This defense is applicable if the accused feels the probation officer used unreasonable or excessive force. The arrestee may claim they were using self-defense. Peace officers may use as much power as needed to make an arrest, but anything more than that is illegal. For instance, the law enforcement officer shoots an unarmed suspect. Then, the suspect might resist.

Baseless or False Allegations

The accused often believe that the arresting officer made untrue accusations. The accusation of resisting arrest may not likely hold up if:

  • The arrestee was flippant or unpleasant; and
  • Irritated the arresting officer.

The police could file the charges in revenge. Having witnesses to support such claims is helpful. Otherwise, it would be an alleged offender’s word against a law enforcement official.

You Were Protecting Someone Else

This defense applies when a commotion between a peace officer and arrestee occurs. An individual can defend the endangered person during a ruckus. It does not fall under resistance despite using violence due to the intention of defense.

Unlawful Arrest 

In rare circumstances, someone may fight back against an unauthorized arrest. But only with the reasonable or necessary force to successfully resist the arrest. Any detention that is not legal is an unlawful arrest, and it is illegal if it is without a warrant or probable cause.

Can You Resist Unlawful Arrest?



Yes, there are some states where it is allowed. You can use reasonable force to prevent an unlawful arrest. This privilege is subject to two significant restrictions:




  1. The detention must be unlawful; and
  2. A person may only resist by using reasonable force.

If a suspect makes a mistake, they could face criminal charges. Sometimes, along with serious injuries. The law may carry an obstructing charge against the offender. Additionally, using more force than necessary may result in accusations of assault, battery, or other crimes.

The Fourth Amendment of the US Constitution serves as the legal foundation for resisting an illegal arrest. This amendment protects citizens from arbitrary government searches and seizures. You have the right to resist arrest if you think your arrest is unlawful. This right comes with a few restrictions, though.

Understanding that police must have a good reason to arrest you is crucial, and there must be “probable cause” to believe you have committed a crime. You may be permitted to resist arrest if an officer does not have sufficient grounds to arrest you and not be charged.

Second, you can only exert fair pressure if you try to resist arrest. Accordingly, you cannot attempt to elude arrest by using force or a weapon. If you do, you can face more severe charges, including assault or violence on a peace officer.

Knowing your rights before acting is crucial since resisting arrest is a serious crime. An expert attorney can assist you in understanding your options and rights. They can help you in mounting a compelling defense against the allegations.

Protect Yourself by Seeking Legal Guidance



Criminal histories are disastrous; they could cost you many great opportunities and restrict your freedom. It is crucial to remember that the court may throw out your criminal history. Yet, you still have to deal with any adverse side effects.

You are still left with consequences and can still experience collateral damage. The best action is to speak with a criminal defense attorney once you face a misdemeanor charge. Summit Defense Law Firm has helped many clients in the past. We bring you results. Building a solid attorney-client connection is something that our legal team supports.

Our experienced criminal defense lawyer will investigate your case and provide you with astute and experienced legal counsel. We will help you develop a unique and powerful defense plan for your misdemeanor charges.

Call (866) 852-7126 immediately to schedule a free consultation with one of our criminal defense lawyers. You may also fill out our website’s contact form.

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