Resisting arrest with violence and resisting arrest without violence are serious criminal charges in Florida that will often lead to a permanent criminal record and even a potentially lengthy jail or prison sentence. This will often lead to the loss of employment, career opportunities, and issues in obtaining housing. Therefore, it is extremely important to hire a knowledgable, experienced criminal defense attorney. Sometimes, the state will overuse the resisting arrest charges and charge a defendant with resisting based on the subjective opinion of the police officer. Kerstin Wade has a lot of experience in handling these types of charges and will carefully examine the details of the case and put the actions of law enforcement under a microscope.
Resisting arrest or obstruction of an officer can be either a misdemeanor or felony depending on the circumstances. If no violence is involved, resisting or obstructing a police officer is a misdemeanor whereas resisting with violence is a felony in Florida.
Resisting arrest without violence is a 1st-degree misdemeanor. It includes situations when you tense up for example when an officer is trying to arrest you. However, it does not just include situations when someone is trying to actively resist an arrest. It also includes scenarios when someone interferes with an investigation of a police officer.
In order to prove the charges of resisting or obstructing an officer without violence under Florida Statute 843.02 the prosecutor has to prove the following elements:
The defendant resisted, obstructed, or opposed an officer
The officer was engaged in the execution of a legal duty or executing a legal process
The officer was lawfully authorized to execute the process
The defendant knew that the person he resisted or obstructed was a police officer or other law enforcement officer (including a probation officer).
Resisting arrest with violence is a 3rd-degree felony. Similar to resisting without violence it includes both situations where the defendant resisted an arrest and where the defendant interfered with an active police investigation or other legal duty. However, in addition to the other 4 elements required for resisting without violence, resisting with violence also requires proof that the defendant either:
Used violence to resist or obstruct OR
Threatened to use violence to resist or obstruct.
Resisting without violence is a 1st-degree misdemeanor and is punishable by up to 1 year in jail or probation and a $1000 fine. Many times, the prosecutor will seek a lengthy probation sentence on someone who has no prior criminal record and only minimally resisted. Sometimes, a prosecutor may even ask for jail time on someone with minimal criminal history if the facts of the case call for it. Either way, even a misdemeanor charge for resisting arrest may very well lead to a permanent criminal record.
Resisting with violence is a 3rd-degree felony and is punishable by up to 5 years in jail or probation and a $5000 fine. Prosecutors may ask for some jail time even when the defendant did not cause any injuries or use any weapons. If the defendant used a weapon or caused an injury, it is highly likely that the prosecutor may seek jail or prison time.
There are multiple defenses to resisting arrest for both the misdemeanor and felony charges. Some of the defenses are as follows:
In order to prove resisting arrest with or without violence, the prosecutor has to prove that the defendant actually resisted. This is a question that the jury will have to answer. However, if the defense can show that the defendant did not actually resist but merely had an involuntary reaction to pain from being handcuffed, the state cannot prove that the defendant intentionally resisted and he or she should be found not guilty. Likewise, the jury should find the defendant not guilty if they find that the defendant’s actions did not rise to the level of actual resistance-based, for example, on video evidence that contradicts the officer’s allegations.
In order to prove resisting arrest charges, the prosecutor has to prove that the officer was executing a legal duty when the defendant resisted. In order to prove the officer was executing a legal duty, the state has to prove that the officer was:
Legally detaining or arresting someone, OR
Asking someone for assistance with an ongoing emergency or investigation.
This means that if the officer’s actions fall outside of the scope of the above scenarios, the officer was not considered to be executing a legal duty and the defendant cannot be charged with resisting. For example, if a police officer is undercover and trying to lure prostitutes into his car and the defendant, who knows the undercover officer tells the prostitutes not to get into the car, the court found that the defendant’s action did not constitute resistance because the officer was not executing a legal duty based on the above definition but was merely involved in “on the job” activities.
The officer has to have a legal reason to arrest the defendant. Therefore, if the arrest was illegal because the officer was missing the necessary probable cause to arrest the defendant, the arrest was illegal and the defendant’s actions in resisting the arrest may be justified.
Likewise, if an officer is using excessive force when arresting a defendant, the defendant may be justified in resisting the excessive force.
If the defendant does not know that the person who is trying to arrest him or her is a police officer, the defendant may be justified in believing that he or she is revisiting an improper attack or detention, and the defendant’s actions may be reasonable.
Under Florida law, a police officer is obligated to explain to a defendant the reason for the arrest. A failure to explain the reason does not render the arrest itself illegal, however, it could be a factor the jury should consider when deciding whether or not a defendant acted reasonably or was trying to actively resist the arrest.
As you can see there are many defenses to resisting arrest with or without violence. Kerstin Wade has the necessary experience to be able to look at your case and mount an aggressive defense against the allegations. Do not simply let the state scare you into a plea before consulting a criminal defense attorney. Kerstin Wade has an office in downtown Tampa, only a couple of miles from the Hillsborough County Courthouse. Contact us today for a free consultation at 813-401-0130.