A lot of people think of resisting arrest as a “lesser” charge or a crime that a person is charged with in addition to another crime.

The truth is, it is definitely not a “lesser” charge, and you can get slapped with resisting arrest even if you are not charged with any other crime.

What’s worse, it can follow you for the rest of your life, rearing its head when you try to get a job or secure housing, or even open a business. Background checks can be brutal.

There are so many components to resisting arrest, so many scenarios can take place that would justify the charge. If you have been charged with resisting arrest or if you believe that you may be arrested for a different crime, you need a criminal defense attorney who will help you get through the process as easily and uneventfully as possible.

Overview of Resisting Arrest

When a person does something that intentionally interferes with a law enforcement officer’s attempt to perform an authorized arrest of them or another person, it is called “resisting arrest.”

The degree of resistance to arrest that warrants a resisting arrest charge varies from state to state. Physical violence satisfies the definition, but other more subtle actions can as well. A person who runs away from the police or who has a minor scuffle with the officers while being arrested can be charged as well.

Even verbal resistance can qualify. While making non-threatening statements, such as proclaiming that you are not guilty aren’t typically enough for a resisting arrest charge, getting loud and threatening or arguing or protesting extensively can be enough.

A resisting arrest conviction usually will not be expunged.

This is one of those areas that can be a little ambiguous and it is up to the officer to decide if your actions were enough to qualify as a resistant action to arrest.

Some examples of resisting arrest include:

  • Trying to kick or actually kicking the officers as they try to arrest you.
  • An officer approaches and tells you to stop but you run away.
  • Calling out to bystanders to help you while an officer is handcuffing you and someone tries to step up in any way to assist you.
  • When an officer is trying to handcuff you and you push him or her off you or away from you.
  • Trying to punch or swinging at an officer who is trying to arrest you.
  • Spitting on an officer who is trying to arrest you.
  • Laying down with your arms underneath to keep an officer from putting handcuffs on you.
  • Verbally threatening or yelling at an officer who is trying to arrest you.
  • Brandishing or using a weapon (gun, knife, vehicle, bat, rock, etc.) at or on an officer who is trying to arrest you –is likely to incur additional charges.

Can You Resist Arrest if You are Innocent?

You cannot resist a lawful arrest even if you believe that you are innocent. As long as the officer had probable cause to arrest you and you resisted, then you could be charged with resisting arrest.

If you are innocent and are arrested, it is important that you do not resist. It is best to get a criminal defense attorney and go through the proper legal channels to fight the charge.

Federal Resisting Arrest Charges

Federal Law addresses resisting arrest but also includes an enhanced penalty if the accused uses a deadly or dangerous weapon.

18 U.S. Code § 111 – Assaulting, resisting, or impeding certain officers or employees

  • (a)In GENERAL. —Whoever—
    • (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
    • (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony
  • (b)Enhanced PENALTY. —

Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury

It is important to note who this law is referencing. It specifically states persons designated in Section 1114 of this title.

18 U.S. Code § 1114 – Protection of officers and employees of the United States

Whoever kills or attempts to kill any officer or employee of the United States or any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished—

(1)in the case of murder, as provided under section 1111.

(2)in the case of manslaughter, as provided under section 1112; or

(3)in the case of attempted murder or manslaughter, as provided in section 1113.

New York Resisting Arrest Charges

The actual law that directly addresses resisting arrest is a misdemeanor under New York law.

Article 205.30 – NY Penal Law

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

Unfortunately, it does not end there since there are other more serious charges that you could be facing.

Other Charges that can Accompany Resisting Arrest Charges

There are some charges that can accompany a resisting arrest charge. It is important to understand the complexity of this crime and what you may face if you are accused of resisting arrest.

Article 205.55 – NY Penal Law – Hindering Prosecution

As used in sections 205.55, 205.60, and 205.65, a person “renders criminal assistance” when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person who he knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime, or with intent to assist a person in profiting or benefiting from the commission of a crime, he:

1. Harbors or conceals such person; or

2. Warns such person of impending discovery or apprehension; or

3. Provides such person with money, transportation, weapon, disguise, or other means of avoiding discovery or apprehension; or

4. Prevents or obstructs, by means of force, intimidation, or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or

5. Suppresses, by any act of concealment, alteration, or destruction, any physical evidence which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or

6. Aids such person to protect or expeditiously profit from an advantage derived from such crime.

  • Article 205.55 – NY Penal Law – Hindering Prosecution in the Third Degree

A person is guilty of hindering prosecution in the third degree when he renders criminal assistance to a person who has committed a felony. 

  • Class A Misdemeanor
    • Maximum fine $1,000
    • Maximum 1 year in jail
    • Maximum 3 years’ probation
  • Article 205.60 – NY Penal Law – Hindering Prosecution in the Second Degree

A person is guilty of hindering prosecution in the second degree when he renders criminal assistance to a person who has committed a class B or class C felony. 

  • Class E Felony
    • 1 1/3 years to 4 years’ probation
  • Article 205.65 – NY Penal Law – Hindering Prosecution in the First Degree

A person is guilty of hindering prosecution in the first degree when he renders criminal assistance to a person who has committed a class A felony, knowing or believing that such person has engaged in conduct constituting a class A felony. Hindering prosecution in the first degree is a class D felony.

  • Class D Felony
    • 1-3 years to 7 years’ probation

Article 120.05 – NY Penal Law – Assault in the Second Degree

A person is guilty of assault in the second degree when:

3.With  intent  to  prevent  a  peace  officer,  a  police  officer,   prosecutor  as  defined in subdivision thirty-one of section 1.20 of the   criminal procedure law,  registered  nurse,  licensed  practical  nurse, sanitation  enforcement  agent,  New  York  city  sanitation  worker,  a firefighter, including a firefighter acting as a paramedic or  emergency medical  technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service  paramedic  or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a school crossing guard appointed  pursuant  to  section  two  hundred  eight-a  of  the general municipal law, a traffic  enforcement  officer  or  traffic  enforcement agent,  from  performing  a lawful duty, by means including releasing or failing to control an animal under circumstances  evincing  the  actor’s intent  that  the  animal  obstruct  the  lawful  activity of such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section  1.20  of  the  criminal  procedure  law,  registered  nurse, licensed  practical  nurse,  sanitation enforcement agent, New York city sanitation worker, firefighter,  paramedic,  technician,  city  marshal, school  crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, traffic  enforcement  officer  or  traffic enforcement  agent,  he  or  she  causes  physical  injury to such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section  1.20  of  the  criminal  procedure  law,  registered  nurse, licensed  practical  nurse,  sanitation enforcement agent, New York city sanitation worker, firefighter,  paramedic,  technician  or  medical  or related  personnel  in  a  hospital  emergency department, city marshal, school  crossing  guard,  traffic   enforcement   officer   or   traffic enforcement agent.

Article 120.08 – NY Penal Law – Assault on a Peace Officer, Police Officer, Fireman or Emergency Medical Services Professional

A person is guilty of assault on a peace officer, police officer, fireman, or emergency medical services professional when, with intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes serious physical injury to such peace officer, police officer, fireman, paramedic or technician.

  • Class C Felony
    • Minimum 3 ½ years in prison
    • Maximum 15 years in prison

Penalties for Federal Resisting Arrest

18 U.S. Code § 111 – Assaulting, resisting, or impeding certain officers or employees

  • (a)In General.—Whoever—
    • (1)forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
    • (2)forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, 
      • Fine
      • Maximum 8 years in prison
  • (b)ENHANCED PENALTY. —

Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury

    • Fine
    • Maximum 20 years in prison

The federal charge of resisting arrest is usually a misdemeanor, but the enhanced penalty is often classified as a felony.

Penalties for New York Resisting Arrest

The penalties for resisting arrest in New York can mean a fine as well as some jail time. As a Class A Misdemeanor, there are several penalties assigned to the crime. You could get a fine or jail time or both – or you could get probation.

Article 205.30 – NY Penal Law – Resisting Arrest

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.

  • Class A Misdemeanor
    • Maximum fine $1,000
    • Maximum 1 year in jail
    • Maximum 3 years’ probation

Defenses for Resisting Arrest

In New York, the prosecutor must prove beyond a reasonable doubt that two elements were present at the time the defendant allegedly committed the crime of resisting arrest:

  1. That the defendant attempted to prevent or prevented a peace officer or police officer from making or carrying out an authorized arrest on themselves or another person, AND
  2. That the defendant was intentional in their actions

Other defenses that your attorney may present include:

  • The action of resistance was not intentional
  • The actions of the defendant were not violent (for felony charges)
  • The police officer was not properly carrying out his official duties (i.e., making a traffic stop, investigating a crime, etc.)
  • Self-defense – The officer was using unnecessary or excessive force
  • Unlawful arrest (i.e., no warrant, etc.)
  • The defendant did not know that the officer was trying to arrest them
  • Mere argument or criticism

A resisting arrest charge can go south quickly. If you have been arrested for resisting arrest, you need an experienced, knowledgeably criminal defense attorney to protect your rights. When you need legal representation, call Igor Litvak of The Litvak Law Firm at (718) 989-2908. He will fight for you to make sure you have the best possible outcome for your case.