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Resisting Arrest

Resisting arrest charges are easier to come by than you think. It doesn’t always involve physical force, weapons, or running away from police officers. Failure to follow the law enforcement officer’s instructions like stepping out of the car or putting your hands behind the back could result in resisting arrest charges. You can end up with a conviction even if the arrest that led to the resisting arrest charges is illegal.

You can resist arrest either passively or actively, all with different penalties. Whatever type of resisting arrest you have been accused of, ensure that there are no additional charges. Remember, police officers are not required to use excessive force when making arrests. And if that happens, you may be justified to use reasonable force to resist. However, you cannot fight the charges efficiently without legal help.

At the Phoenix Criminal Attorney, we are here to tell your side of the story and develop a strong defense against the resisting arrest charges. We can argue that you had the impression the arresting officer was acting outside of the law. The law enforcement officers didn’t identify themselves correctly, which made you react in confusion resulting in resisting arrest charges.

General View of Arizona Resisting Arrest Statutes

ARS 13-2508 outlines what is commonly dubbed as resisting arrest. You violate this statute if:

  • You make use or threaten to use force against a police officer.
  • You utilized other techniques to create a considerable risk of the peace officer sustaining bodily harm or injuries.
  • You engage in passive resistance.

Passive resistance is defined as a nonviolent physical force or participation in an act that impedes, hinders, or delays an arrest process. Not following an officer’s instructions is passive resistance classified as a Class 1 misdemeanor.

The definition of resisting arrest in Arizona isn’t unequivocal, thus leaving room for the jury’s argument and interpretation. Your criminal defense attorney can use this to your advantage and mount strong defenses for favorable outcomes. Use or threatening physical force or generating a significant risk of bodily injury on a law enforcement officer, on the other hand, is a Class six felony.

Active or Felony Resisting Arrest

If you have been charged with resisting arrest under ARS 13-2508, the prosecuting team must demonstrate the following elements:

  • Police or EMT officers, performing legal duties, sought to arrest you.
  • You knew or ought to have known that the individual seeking to make an arrest was a law.
  • You deliberately averted or attempted to stop from effecting an arrest utilizing or threatening physical force or using other ways to generate a reasonable amount of risk of bodily harm on the police officer or EMT official.

Keeping in mind the elements the prosecutor needs to prove to convict you of felony ARS 13-2508 violation, you could end up in jail or prison even if the peace officer effecting the arrest were not injured or under any substantial risk of sustaining injuries. A little push or a swat on the peace officer’s hands is enough to earn you felony charges. So, it’s in your best interest to exercise caution during arrest and follow the officer’s instructions.

Examples of the actions that qualify as use of or threatening to use physical force include:

  • Kicking or trying to kick a peace officer at the time of the arrest
  • Attempting to swat an officer’s hands when being handcuffed

In many cases, resisting arrest is filed as an additional charge or along with side offenses like an aggravated assault on a peace officer. You will face Class 5 felony charges if the assaulted officer doesn’t sustain injuries. However, if the assaulted officer sustains injuries, you will be charged with aggravated assault even if the officer only suffered minor injuries. The common elements that aggravate an assault are using a weapon or inflicting injuries on the peace officer.

Suppose it happens that you didn’t threaten or use physical force against a peace officer. In that case, you will still be subject to felony resisting arrest if it is clear that you created a substantial risk of inflicting bodily harm on a peace officer or another individual present at the time of the action. It’s worth noting that considerable risk doesn’t always mean the officer is in significant danger. It means you put the peace officer at substantial risk of suffering a physical impairment.

An example of an action that is considered to create a substantial risk of physical impairment on an officer is lying down on the road with your arms under the stomach to prevent being handcuffed. This should happen when traffic is on the road.

Passive Resistance or Misdemeanor Resisting Arrest

Arizona added passive resistance in ARS 13-2508 in 2012, which means there is an additional way you could end up with resisting arrest charges. Passive resistance is classified as a less severe misdemeanor because it doesn’t involve any application of force or substantial risk of injuring a peace officer.

When faced with misdemeanor resisting arrest charges, the prosecutor needs to demonstrate the following elements:

  • A peace officer, performing or attempting to serve legal duties, sought to arrest you
  • You were aware or should have reasonably known that the person seeking to apprehend you was a police officer exercising official powers or performing legal duties.
  • When you engaged in passive resistance, you deliberately deterred or tried to discourage a peace officer from apprehending you.

The typical examples of passive resistance include:

  • Refusing to step out of the vehicle
  • Stiffening your arms
  • Pulling away from the peace officer trying to effect an arrest
  • Going limp to block an officer from arresting you

Keep in mind that you will be subject to either of these types of resisting arrest charges, whether the initial arrest is justifiable or not. Even if you face false allegations, resisting arrest is a crime because the policy’s purpose is to promote safety.

The Penalties of Resisting Arrest in Phoenix

ARS 13-2508 is usually filed as a Class 6 felony, unlike passive resistance filed as a Class 1 misdemeanor. The penalties for Class 6 felony resisting arrest are:

  • Prison incarceration, although the duration of the prison sentence depends on your criminal history. A Class 6 felony could result in six to eighteen months in prison.
  • If you have a prior felony conviction or criminal record, you will face a prison sentence ranging from twenty-four to sixty-nine months.
  • Probation with a possibility of zero to twelve months in jail
  • Court fines plus surcharges no more than $274,500

Apart from the above consequences of a conviction, a felony resisting arrest sentence could result in collateral consequences that might adversely impact your finances, rights, employment, or business opportunities. When your actions of passive or active resistance result in property damage, injuries, or loss of wages to the peace officer, the court might order you to reimburse the officer as part of the punishment.

On the other end, passive resistance is a Class 1 misdemeanor. A sentence for this type of offense will result in:

  • A maximum of one hundred and eighty days jail incarceration
  • No more than three years of probation
  • Fines and surcharges not exceeding $4,575

Remember that while imposing a sentence for misdemeanor resisting arrest, a judge might impose additional penalties like counseling, restitution of the victims of your actions if they suffered financial losses.

Similarly, if you have been charged with multiple resisting arrest charges within twenty-four months, the prosecutor might bump your charges to the next level. This means that if you have been previously charged with a Class 1 misdemeanor resisting arrest, a subsequent offense within two years can result in Class 6 felony charges whose conviction carries stricter penalties. 

Reducing Your Felony Resisting Arrest Charge to a Misdemeanor

As you have seen from the penalties above, the type of resisting arrest you are accused of committing determines the penalties upon conviction. If you can convince the prosecuting team or judge to lower the charges, you will face a light sentence even if you are convicted.

As per Arizona ARS 13-604, the offense of a felony resisting arrest might reduce to a Class 1 misdemeanor resisting arrest. The reduction of charges happens during plea negotiations. Although it’s possible to lower a felony charge to a misdemeanor, it doesn’t apply to everyone. You are ineligible to charge reduction if you have a prior felony record.

When considering reducing charges, the judge or prosecutor will consider the nature of the offense, your criminal history, and character. Further, they think whether sentencing you with a felony will be in the interest of justice or unduly harsh. However, for a charge reduction to happen, you need an attorney who understands Phoenix laws and one that can effectively negotiate on your behalf to have the charges lowered.

Possible Defenses to Resisting Arrest

Keeping in mind the elements of resisting arrest, you will realize that the offense’s defenses are apparent. All you need is an experienced and diligent criminal defense attorney to review your case and build a comprehensive defense strategy Part of the legal strategy includes mounting the following defenses:

1.  Self-Defense in Response to Unreasonable Police Force

You are not guilty of ARS 13-2508 violation if you resist an arrest from a police officer using unreasonable or excessive force to effect the arrest. It’s crucial to understand that even against law enforcement or EMT officers, you don’t lose the right to defend yourself.

For you to mount self-defense as a legal strategy, you must demonstrate that the arresting peace officer used unnecessary and excessive force. In return, you utilized no more force than reasonably necessary to defend yourself from the officer and that a sober person would have used the same force under similar conditions.

Your attorney can quote ARS 13-3881, which prohibits peace officers from using unnecessary force when effecting an arrest. As per the law, the person who has been arrested shouldn’t be subject to greater restraint than the one necessary for detention. So, if you used excessive force at the time of arrest, you can argue that you didn’t resist the arrest. Instead, you were acting in self-defense.

However, suppose you utilized excessive force, or the peace officer’s application of excessive force was in response to your initial physical aggression towards the officer. In that case, self-defense will not be available to you as a legal strategy.

2.  Lack of Criminal Intent

As stated earlier, the charge of resisting arrest requires the prosecution to demonstrate that you, as the defendant, intentionally prevented or tried to stop an officer from effecting an arrest. ARS 13-105 defines knowingly as a person’s goal to take part in wrongful conduct. It means you are not guilty of resisting arrest if you resisted the arrest accidentally.

Suppose at the time of trying to arrest you, you weren’t aware of the officer’s presence, or you were under the impression they were acting outside their authority. In that case, an accusation of resisting arrest will not apply because you didn’t resist the arrest on purpose.

3.  Lack of Knowledge that the Person Effecting an Arrest was a Peace Officer

Your criminal defense attorney can argue that you were not aware that the individual trying to arrest you was a peace officer. Remember, you can only face accusations of resisting arrest if you were aware that the individual trying to arrest you were law enforcement officers.

If you weren’t aware the person was a peace officer or didn’t identify themselves at the time of arrest, there are no grounds for accusing you of resisting arrest. This defense will also hold in court if the peace officer wasn’t in uniform or was off duty.

4.  The Resistance, Obstruction, or Delay of an Arrest Was Due to Police Misconduct

ARS 13-2508 applies only when a peace officer is acting within their scope of official duties. Therefore, you can’t face resisting arrest accusations or charges if police engaged in misconduct or the underlying police action was illegal. Police misconduct happens when the officers violate your constitutional rights through actions like searching a home or premises without a search warrant, effecting an arrest without an arrest warrant or probable cause, illegal detention, or coerced statement.

If it is believed the arresting officer engaged in any form of misconduct, you can file a motion through your attorney requesting the officer to be investigated for previous transgressions. With information and evidence of the officer’s wrongdoing, you can quickly negotiate a plea deal or get the resisting arrest charges dismissed.

5.  Lack of Physical Evidence

Many resisting arrest charges are based on allegations without any physical evidence. It’s often the officer’s statement against yours. When defending charges where the peace officer claiming you delayed or obstructed arrest didn’t suffer physical injuries, or there is no video evidence to show you resisted arrest, you can mount lack of evidence as a defense.

However, you will need an experienced attorney to poke holes in the police officer’s testimony for the strategy to succeed. That way, you cast doubt in the minds of the jury regarding the evidence against you, and this might work in your favor.

6.  Conflicting Video Evidence

In Phoenix and the entire of Arizona, many law enforcement agencies rely on body cameras. The cameras record videos of everything that the officer does, including their actions when making an arrest. In case an officer had a camera on, and they claim you delayed or prevented an arrest, you can rely on this video evidence to prove the officer’s statement conflicts with the video evidence. That way, the resisting arrest charges will be dropped based on false allegations.

7.  Lack of knowledge That You Were Being Arrested

The law requires that before an arrest is effected, you are informed of the arrest and its reason. If an officer doesn’t state that they are arresting you, there will be no grounds for accusing you of resisting arrest. Being arrested without knowledge of the arrest can cause confusion, or a reaction that law enforcement officers might conclude is an act of noncompliance resulting in ARS 13-2508 violation charges.

In these cases, you can argue that you had no knowledge of the arrest, and as such, you reacted in confusion or asked questions, which the officer termed as resisting arrest. The case will be dismissed for lack of criminal purpose because you didn’t intend to resist arrest.

Find the Phoenix Criminal Lawyer Near Me  

If you find yourself on the wrong side of the law, you can avoid extra charges of resisting arrest by complying with the peace officer’s instructions, even when you feel their actions are unjustified. Also, upon apprehension, you have the right to remain silent until your attorney is present. Peacefully submitting to arrest is the best move because if things get out of hand, you could quickly end up resisting arrest faster than you can think.

Fortunately, if you find yourself charged with resisting arrest, Phoenix Criminal Attorney is here to help. Reach out to us today at 602-551-8092 for a case evaluation.

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