Sometimes, officers use “resisting arrest” as a catchall for any behavior that makes an investigation or arrest more difficult. It may be hard to believe that responding slowly, or reluctantly to an officer’s general commands could lead to a charge of resisting arrest. But it’s true, sometimes an arrest doesn't need to be in progress for a charge of resisting arrest.

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That doesn’t mean that an officer may interpret any situation where you’re not doing exactly what you’re being told to do right at that instant as “resisting arrest.” Let’s take a closer look at the law and possible defenses for the criminal charge of resisting arrest.

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Elements of the Crime

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As a general definition, a defendant resists arrest when they intentionally prevent an officer from making a lawful arrest or discharging any other official duty, and the person creates a substantial risk of bodily injury to the officer or anyone else, or acts in a way that justifies use of force to overcome the resistance.

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It’s important to understand that some state laws prohibit any action that impedes an officer. This means that a resisting arrest charge can be filed against you without any prior attempt to place you under arrest! In other states an arrest must be in progress for a resisting charge to be filed against you.

 

To be found guilty, the burden is on the prosecution to prove guilt beyond a reasonable doubt all the elements of the crime. This can include:

• Prove that the defendant was aware or should have reasonably known that the person they were resisting was a law enforcement officer;

• Establish that the officer was performing their duties in a lawful manner;

• Show the defendant intentionally resisted arrest.

• Actions Commonly Seen as Resisting

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Resisting arrest generally involves situations where a person obstructs, resists or delays a law enforcement during the performance of their duty. Any action a person takes that impedes an officer, even standing their way, could qualify. Actions commonly seen as resisting arrest include:

• Physically struggling against or attacking an officer while attempting to arrest you;

• Giving an officer a fake name or other false personal information;

• Requiring an officer to carry or drag you to make the arrest.

• Penalties and Punishment

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Resisting arrest can be charged as a misdemeanor or felony depending on the facts of your case. The penalties and punishment will be determined by the facts of your case and how it is charged.

Misdemeanor Resisting Arrest:

Jail time of up to one year
Fines can range from nothing to as high as $4,000, depending on the laws of your state
Informal probation requiring you to not commit the same or similar offense for three to five years.
Felony Resisting Arrest:

Up to three years in prison. In Wisconsin, the sentence can be up to 10 years!
Fines can range up to $10,000, more if restitution is ordered to an injured party.
Formal probation with weekly or monthly reporting.

Possible Defenses for Resisting Arrest

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It can be difficult to determine when someone actually resisted or obstructed an arrest because there is no clear legal standard. Officers can rush their judgment and arrest who has not immediately obeyed their orders. You have several possible defenses against this charge including:

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• Excessive force / Self-Defense: You can argue that you were acting in self-defense after the officer used excessive force under the circumstances.

• Unlawful Arrest: In some states, you can claim that the original arrest was unlawful and the arrest was not authorized by law.

• Factual Error: Although it’s never a good idea to accuse an officer of lying, you can argue that the facts of the situation were different that seen in the police report.

• Lack of Harm: In states where force or harm must have occurred, you can raise the defense that the alleged conduct did not create a substantial risk of bodily injury to the officer or anyone else. Police might try to arrest a person and who runs away and yells at the police but does not create a risk of bodily injury to anyone.

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[Resisting Arrest]​