May 14, 2014

shows a citation by Garden Grove police department for a California Penal Code 148 arrest

California Penal Code 148 is a misdemeanor offense and makes it a crime to obstruct or resist a police officer (peace officer) or EMT in performing their duties.

In short, Penal Code 148 Resisting happens when someone is trying to stop or delay a police officer, law enforcement, executive officer, or emergency medical technician in the middle of their lawful duty.

However, the keyword is “obstruct/resist” lawful duty. California defines it as simply “resisting, delaying, or obstructing a law enforcement or emergency medical technician while they are performing their duties”. which leaves room for the criminal system to interpret whether there was actual obstruction.

A criminal defense attorney and prosecutor will have disagreements.

Punishments for California Penal Code 148 Resisting Arrest

Suppose you get a conviction for Resisting arrest with a peace officer or executive officer. In that case, you will most likely be facing misdemeanor punishments, which is a maximum punishment of one year in county jail and a max of 1000 dollars fine. Probation may be issued depending on the facts of the case.

The maximum punishment is unlikely to happen, and you will most likely get credit instead of county jail for the time you spent in detention waiting to get out. You should also expect a criminal record which you will have to expunge later if you want to clear your record community service and a fine of several hundred dollars.

Legal Defenses for Penal Code 148(a) Resisting Arrest

The definition of obstructing on Penal Code 148 is broad and this leaves a lot of room for an officer’s or emergency medical technician interpretation of resisting/obstructing and lawful duty

Unlawful arrest will Defend you Against a California Penal Code 148 Charge.

The first part is that the law enforcement actions must have been lawful. If the police arrest was unlawful, then you have justification for resisting. However, you will need to show no probable cause or reasonable suspicion to give rise to an arrest.

Not Aware (No Intent) Negates the Intent Element for Resisting Arrest.

– Unmarked cars/wearing police uniforms?

However, this is not always obvious, but many police officers will drive around in unmarked vehicles and out of uniform. In addition, many public officials will walk around with no identification. If this happens, the intent element is not there for the crime because you would not know they were peace officers or a government agency.

This scenario happens a lot with undercover officers doing prostitution cases and gang operations because they go around with no police uniform.

Self Defense

If Resisting Arrest using self-defense, it will only work if the police acted in misconduct first. If you used “self-defense” but the police acted in lawful conduct, then your defense would not work.

Plea Bargain in a California Penal Code 148 Case

There will be times when the prosecution will not prove the crime of California penal code 148 of resisting. If they can’t prove it beyond a reasonable doubt, they will likely lower the punishment or even dismiss the charge.

A plea bargain happens when the prosecution can’t prove the case because one of the common defenses or a case is too inflammatory to move forward.

Examples of these will include an officer causing too much injury during the, used racial profiling or made false allegations against you, or was not doing his official duty.

There is more than just a one-sided report in a California Penal Code 148 Case.

The prosecution has the burden to prove to 12 reasonable persons that there was a crime to get their conviction. An effective defense strategy to defend against a resisting charge will involve looking beyond the report. The report is just starting a starting place with a one-sided narrative.

Injuries need to be Looked Carefully in a Resisting Arrest Case

A good indication of a false report by an officer is a violent injury. When a bodily injury occurs, it is necessary to see what happened before the physical injury. Excessive force is not part of the officail duty can leads to civil liability for the city or county.

This happens when there is an alcohol-fueled situation (DUI, Public Intoxication, Public Urination in Downtown Fullerton or Hit and Runs) and when testosterone is involved, and an officer is no exception. However, the peace officer gets the benefit of the doubt and knows it and can wash it out with a false report.

shows a citation by Garden Grove police department for a California Penal Code 148 arrest
A California Penal Code 148 is accompanied with other charges

When there is an injury it is important to find videos from the incident of independent witnesses. This can be done by using the law enforcement agency as a starting ground. (body camera from an officer or any executive officer on official duty, dashcam).

Examples of California Penal Code 148

Not Resisting – Taking Photography

Examples of abuse by an officer can include talking back with an officer or struggling with an officer that’s trying to cuff you. Making faces and insults at an officer that is arresting your friend. An officer stopping a person for recording or photographing an arrest.

Resisting. If a person intentionally goes limp, requiring an officer to drag or carry

Going limp is obstructing.

the person in order to accomplish a lawful arrest, that person may have willfully (resisted[,]/ [or] obstructed[,]/ [or] delayed) the officer if all the other requirements are met.

Source: justia.com

Giving False Information to a Police Officer is obstructing.

Giving the peace officer false identification is grounds for obstructing. By giving identification to police that is not accurate, you are delaying the time it takes to resolve their report. Even if the information is insignificant, the time wasted is relative, and a wide range is given to an Orange County officer in writing starting the case against you.

Legal Definitions of California Penal Code 148

arrest made without legal grounds and an arrest made with excessive force. (Id. at p. (justia.com)“[I]f a defendant is charged with violating section 148 and the arrest is found to be

Arrest made without legal grounds and an arrest made with excessive force. (Id. at p.

Source: justia.com

ia.com)

[An officer or employee of

government agency that employs public offıcer> is a public officer.]

Source: justia.com

[Taking a photograph or making an audio or video recording of a ( peace

officer/public officer/emergency medical technician) while the officer is in a public place or the person taking the photograph or making the recording is in a place where he or she has the right to be is not, by itself, a crime.]

Source: justia.com

Have a Defense Attorney Look over your case.

Having a criminal defense attorney read over your Penal Code 148 resisting arrest charge is essential. An officer with too many Penal Code 148 arrests means he or she has the habit of using excessive force in his arrest or in the habit of making false police reports. A false report can be identified if they used a template and do routine work.

A good reading of the report, comparing with any other report of that officer, or finding a false report can be the basis for doing a pitchess motion under 1045 and 1043.

Consult with a criminal defense lawyer if you are facing a charge of resisting arrest. For a resisting arrest charge to occur, the state must show that you knew what you did and you did it to obstruct law enforcement/peace officer or a public officer in their official duty