Resisting arrest is one of the most overcharged crimes out there. Police often tack resisting arrest charges onto other charges whenever the arrest did not go smoothly.
Resisting arrest is a second-degree misdemeanor and can easily add months or years to your sentence. However, it requires very specific things, such as intent to stop an arrest, and either a “substantial risk of bodily injury” or that you forced the police to use “substantial force,” which simply isn’t present in every case.
To discuss your charges in a free case review, call Kenny, Burns & McGill’s Philadelphia criminal defense lawyers right away at (215) 423-5500.
The Definition of Resisting Arrest in Pennsylvania
Under 18 Pa.C.S. § 5104, resisting arrest has a very specific definition with the following elements:
Intent to Prevent Arrest/Other Law Enforcement Action
First, the defendant must have the intent to stop an arrest/other law enforcement action. Our Bucks County, PA criminal defense lawyers can argue that merely tensing up in reaction to being grabbed is involuntary and should not be considered “intentional,” though police often disagree.
Instead, something like physically fighting back may show you were trying to actually stop the arrest.
Preventing Lawful Arrest or Other Duty
The arrest you seek to prevent has to be lawful. This usually means that the officer thought it was necessary and legal at the time. If it is later exposed to be an unlawful arrest, but the officer thought it was lawful and did not use excessive force, then the charges might stand anyway. If it was excessive force you were resisting, that might allow charges to be dismissed.
Alternatively, resisting any other law enforcement action – such as a legal pat-down or traffic stop – might also constitute a crime.
Substantial Risk of Bodily Harm or Justifies/Requires Substantial Force to Overcome
A defendant must create a risk of actual injury to another person. Not only that, but the risk has to be “substantial,” as in very likely to cause injury.
Alternatively, police can charge you if your resistance requires or allows them to use “substantial force” to arrest you. This can include the kind of “fighting back” that doesn’t actually involve throwing punches or kicking officers off of you.
Other Related Offenses
Resisting arrest is often related to these other charges, which have different requirements:
Obstruction of Justice
Obstruction of justice is quite similar to resisting arrest, but it focuses more on interference rather than resistance to something happening to you. These charges often cannot overlap due to the way the obstruction statute is written to carve out activities covered under other statutes.
Evading Arrest
Running away from the police on foot when they are trying to perform a lawful arrest is a separate offense from resisting arrest.
Flight
Hiding or traveling inside or outside of the state to try to get away from an arrest is a separate crime. This usually requires that the crime has already been charged or you have already been convicted of the crime at the time you fled.
Assaulting an Officer
Assaulting an officer can be charged as aggravated assault. However, this requires more than merely pushing back against an officer or tensing up.
For resisting arrest, there has to be a substantial risk of injury, while aggravated assault requires attempting to cause or actually causing bodily injury. Even so, both crimes can be charged together if all requirements are met.
Resisting Arrest Without Violence
It is possible to be charged with resisting arrest without violence. The charge requires a “risk” of injury, which can come from things other than actual violence.
Additionally, resisting arrest can be charged for forcing the police to use substantial force to overcome your resistance. This does not necessarily require violence and can be charged for
- Balling up
- Tensing up
- Going limp or making yourself “dead weight” so they need multiple people to move you or put you in the police car
- Pushing your arms forward so police cannot put your hands behind your back
- Lying on your back and pushing with your legs without actually kicking or striking anyone.
Penalties for Resisting Arrest in Pennsylvania
Resisting arrest is a second degree misdemeanor, but it often comes with other charges for the underlying arrest that you resisted.
Possible Sentence
This usually means the following penalties:
- Up to 2 years in prison
- Fines up to $5,000.
Typical Sentence
However, sentencing is always subject to the sentencing guidelines. These place the recommended sentence for a first-time resisting arrest charge at 12 months of probation. This increases based on your criminal history.
Additional Penalties
If you were arrested for another offense in the first place, you will also face charges for that. This could potentially result in much higher penalties depending on the grade of the underlying offense.
FAQs for Resisting Arrest Charges in Pennsylvania
Can You Be Arrested for Resisting Arrest Without Force?
Resisting arrest requires that you either
- Caused a substantial risk of injury or
- Caused the police to need to use substantial force against you.
While these might happen without using violence, it usually requires force. However, going completely limp and becoming “dead weight” might still qualify, and that uses no force on your part.
Is Failing to Comply with Orders Resisting Arrest?
Verbal refusal to comply with police orders is not resisting arrest or resisting other law enforcement actions. You must be accused of actually causing a substantial risk of injury or causing police to use force to affect their goal.
Can You Be Charged with Resisting Arrest Without Another Charge?
Resisting arrest usually requires an initial arrest for another underlying offense. This means police need grounds to arrest you for something else before they can say you resisted that arrest. If the underlying charges are dropped by the time this case gets to trial, you could be in the odd situation of being charged with resisting arrest by itself.
Alternatively, resisting arrest charges can be filed for resisting “other law enforcement.” This is possible without any other arrest, but obstruction of justice charges might be more appropriate.
How Do You Defend Against Resisting Arrest Charges?
Police often charge resisting arrest in situations where it is inappropriate, based on the definition of the crime. It is vital to always have a lawyer on your side to expose the facts, make legal arguments, and push back against police overreach through the courts.
Call Our Pennsylvania Criminal Defense Lawyers Right Away
For help with your case, call the Montgomery County, PA criminal defense attorneys at Kenny, Burns & McGill at (215) 423-5500.
