California Penal Code section 148 (called “PC 148”) defines the crime of resisting, delaying or obstructing a police officer, can be either a felony or misdemeanor. No violent act is necessary for a conviction of PC 148, and spoken words can sometimes be enough for a conviction.
The majority of PC 148 cases occur when a police officer simply feels that someone did not immediately obey their commands.
- 1 Introduction and Defenses
- 2 Defining the Offense of “Resisting, Delaying, or Obstructing”
- 3 Punishments for Violating PC 148
- 4 Elements of the Offense
- 5 Commonly Charged Crimes
- 6 Strategies to Defend Against a PC 148 Charge
- 7 Final Thoughts
Introduction and Defenses
Unfortunately, it is hard to know when someone has actually resisted or obstructed arrest because there is no clear legal standard. In many cases, police officers rush their judgment and arrest who has not immediately obeyed their orders.
The law in California is clear. You cannot be convicted of resisting or obstructing arrest if you were only simply slow in complying and had the legal right to do so.1
There are several legal defenses that anyone charged with resisting arrest can use. The following defenses are often used successfully:
- Excessive force or police brutality of officer,
- Illegal stop and arrest by officer,
- Police exaggeration of facts, and
- No actual delay or obstruction. Officer mistakenly thought there was a delay.
Most cases of resisting arrest can be defended with careful investigation and planning that forces the district attorney and the police officer to fairly acknowledge the law and favorable facts in your case.
If you have been charged with a violation of PC 148, please call the Los Angeles and Pasadena Law Offices of Justin Lo at (310) 284-7385 for a consultation of your rights and defenses.
Defining the Offense of “Resisting, Delaying, or Obstructing”
Although obstruction of a police officer can include verbal statements, the clearest cases of resisting arrest include physically resisting or blocking the path of police officers. However, most case of resisting or delaying arrest are a matter of the officer’s opinion. In most cases, it is up to a police officer’s attitude and judgment to declare when someone is resisting or delaying arrest.
California Courts have found the following behaviors to be a violation of PC 148:
- Passively resisting an officer during arrest by going limp and requiring arresting officers to drag and carry the person.2
- Physically resisting, struggling, running and hiding from police officers with the knowledge the police officers intended to detain them.3
- Speaking with an arrested individual in the back of a police car while being repeatedly ordered by police officers to stay away from the arrested individual.4
- Trying to intimidate or dissuade a witness from speaking with a police officer about a potential crime.5
- Providing a false name to police officers after arrest.6
On the other hand, California courts have held that the following type are NOT considered resisting, delaying or obstructing a police officer:
- Any resistance to an officer’s unlawful orders is not a violation of PC 148. (See “Example A” below.)
- A person cannot be found guilty of PC 148 if they were simply criticizing a police officer. Every person has a First Amendment right to criticize the manner in which police conduct their investigations.7 However, the First Amendment is not a defense against words spoken to impede or delay an investigation, breach the peace or encouraging the commission of a crime or for uttering “fighting words.”8
- A criminal defendant’s refusal to provide a police officer with their name while traveling to the jail is not a violation of PC 148 because the defendant was already arrested and no additional delay was created by defendant’s refusal to identify himself.9 However, failure to provide name during the criminal booking process could be construed as delay.
In Maxwell v. County of San Diego,10 the father of a gunshot wound victim was charged with resisting arrest because he wants to rejoin his wife despite an officer’s order to stay apart. Defendant was pepper sprayed, hit with a baton and handcuffed. There was no violation of PC 148 because defendant’s refusal to stay away from his wife was not unlawful.
Punishments for Violating PC 148
|Code Section||Penal Code, § 148(a)(1)|
|Custody Time||Up to 1 year in county jail.|
|Other Possible Penalties||Fine of up to $1,000.|
|Code Section||Penal Code, § 148(a)(2)|
|Custody Time||Up to 1 year in county jail.|
|Other Possible Penalties||Fine of up to $1,000.|
|Code Section||Penal Code, § 148(b)|
|Violation Type||Can be charged as a misdemeanor or a felony.|
|Custody Time||Up to 1 year in county jail, or (if charged as a felony) imprisonment in a county jail for 16 months, or 2 years, or 3 years.|
Elements of the Offense
In every criminal case, I examine all the facts of the case and determine if the necessary elements in your case can be met. If any of four elements cannot be met beyond a reasonable doubt, no conviction can occur.
- Willful Acts: You were willfully acting to resist, delay, or obstruct a public officer. A willful act is an action performed willingly or on purpose. It does not matter if the action is performed without intention to hurt another or violate the law.
- Officer’s Duties: The police officer was lawfully performing their duties. If a police officer did not have reasonable suspicion to stop you or have probable cause to arrest you, their action is not lawful and there can be no conviction.
- Actual Resistance, Obstruction, or Delay: You resisted, obstructed or delayed the police officer in the performance of their duties. The police officer must be able to show how your actions delayed or impeded their duties. It is not enough that a police officer was annoyed or angry with you.
- Knowledge: You knew or reasonably should have known the person was a police officer was performing their duties. Depending on a police officer’s arrest tactics, it may not be always clear that a police officer is attempting an arrest.
A police officer chooses to sneak up on someone from behind and grab their grab arms or wrists to place them under arrest. The person reasonably does not realize they are under arrest or that it is a police officer grabbing them. In response, they reflexively resist and struggle to get away. That person is not guilty of resisting, delaying, or obstructing a police officer.
Commonly Charged Crimes
Other criminal charges that often accompany a resisting arrest charge include the following:
- Battery on a Police Officer under Penal Code section 243, subdivision (b);
- Using violence to resist a Police Officer under Penal Code section 69;
- Evading and fleeing a pursuing police officer in a car under Vehicle Code sections 2800.1 and 2800.2;
- Providing false identification to a police officer under Penal Code section 148.9;
- Making a false report of a crime section 148.5;
- Assault under Penal Code section 240; or
- Battery under Penal Code section 242.
Strategies to Defend Against a PC 148 Charge
Illegal Police Stop and Arrest by Police Officer
You cannot be guilty of resisting arrest if you have been illegally arrested. Police officers can only stop individuals if they can point to facts that show they had reasonable suspicion of a crime and the defendant was somehow involved. If a police officer cannot show they were stopping you legally, no conviction is permitted.11 However, it is important to never fight or resist a police officer even if you believe your rights are being violated. The proper remedy for illegal police behavior is a civil complaint and civil lawsuit.
Police Officer Exaggerations
In nearly all cases of PC 148, the officer’s testimony is the only evidence that will be used. Most police reports are one sided and do not present all the circumstances of your arrest. Therefore, it is extremely important to break down the officer’s testimony and show the police over reacted and did not mention evidence in your favor.
Conflicting Stories Between Multiple Officers
I have found that arrests involving multiple officers present important opportunities to show the arresting officer was “out of line” in relation to fellow officers. In many cases, police officers, like any other human being will interpret the same set of events in a different manner. Any significant inconsistency in the testimony of a suspects actions and resulting delay is a strong sign the testifying officer’s evidence is weak or no actual delay was created.
Resisting Excessive Force
If a police officer uses excessive force during an arrest, a person’s instinctive reaction to protect themselves is seen as “resistance” and then charged as PC 148. Unfortunately, police officers and district attorney prosecutors seem to ignore the fact that it is natural that a person forcefully move away or raise their hands to protect themselves from pain.
The following examples of police arrest tactics often result in defensive acts being unfairly interpreted as resisting arrest:
- Police officers punching or kicking suspects.
- Police takedowns with leg sweeps or shoulder tackles.
- Police officers placing their knees or feet onto the necks or backs of individuals lying down.
- Police officers applying handcuffs too tightly.
- Police officers forcefully grabbing arms, wrists, or necks.
- Police officers applying arm bars, choke holds or other submissions techniques.
- Police officers threatening the use of or using Tasers, batons or pepper spray.
Resisting excessive police force is a potential defense against resisting or obstructing arrest. In People v. White, a woman was charged with resisting arrest after she bit the resisting police officer. However, she was found not guilty because she only bit the police officer after he began choking and beating her.12
Officer Has a Shady Past
Reviewing a police officer’s confidential personnel record is always important when asserting a defense of excessive force. Unfortunately, however, complaints against police officers for excessive force are contained within their confidential personnel record and can only be reviewed after a court order granting the Pitchess13 motion, which are not always successful.
Fighting against a charge of police obstruction or interference is a factually sensitive and subjective crime that requires careful analysis and experience to defend. Although I have written this post to assist readers, there are many legal requirements and defenses of Penal Code section 148 that depend entirely on the specific facts in your case.
If you would like to learn more about defending yourself against a charge of obstruction of a police officer, please call the Law Offices of Justin Lo at (310) 284-7385 to learn about defending yourself in court.
People v. Quiroga (1993) 16 Cal.App.4th 961.Footnote 1
In re Bacon (1966) 240 Cal.App.2d 34, 51.Footnote 2
People v. Allen (1980) 109 Cal.App.3d 981.Footnote 3
In re Muhammed (2002) 95 Cal.App.4th 1325.Footnote 4
People v. Green (1997) 51 Cal.App.4th 1433.Footnote 5
People v. Christopher (2006) 137 Cal.App.4th 418, 431, 432.Footnote 6
City of Houston v. Hill (1987) 482 U.S. 451, 461.Footnote 7
People v. Robles (1996) 48 Cal.App.4th Supp. 1.Footnote 8
People v. Quiroga (1993) 16 Cal.App.4th 961, 966.Footnote 9
Maxwell v. County of San Diego (9th Cir. 2012) 697 F.3d 941.Footnote 10
- Footnote 11
People v. White (1980) 101 Cal.App.3d 161, 167.Footnote 12
Pitchess v. Superior Court (1974) 11 Cal.3d 531.Footnote 13