Arizona law defines resisting arrest as intentionally preventing an arrest in one of these ways: using or threatening physical force; creating a substantial risk of physical injury; or, passively resisting arrest. A passive resist is a nonviolent physical act, or failure to act, that’s intended to impede, hinder, or delay an arrest. For instance, a refusal to put your hands behind your back or get out of your car may be considered passive resistance. While the resisting arrest statute is unclear, that can sometimes work to a defendant’s advantage. The statute’s broad language leaves wiggle room for argument and interpretation by a judge or jury.
Common examples of resisting arrest include pulling away, stepping away, flailing or stiffening arms, refusing to exit a vehicle, going limp, taking a fighting stance, and threatening violence.
The prosecutor must prove all the following in a resisting arrest prosecution: an officer was arresting you in the officer’s official capacity; you had reason to know law enforcement was arresting you; and, you intentionally tried to prevent arrest.
Does it matter if an arrest was legally justified?
No, regardless of your innocence to an allegation, you cannot resist arrest. There are several policy reasons for this—most notably, safety.
Resisting arrest is a class 6 felony, unless charged as a passive resist under § 13-2508(A)(3), in which case, it’s a class 1 misdemeanor.
Misdemeanor Resisting Arrest Penalties. As a class 1 misdemeanor, it carries up to 180 days in jail, $4,575 in fines and surcharges, and up to 3 years of probation. The Judge has discretion to order additional penalties such as classes, counseling, and community service. If an officer suffered financial loss from damaged property, injuries, or lost pay, a defendant may be ordered to pay restitution.
Felony Resisting Arrest Penalties. A class 6 felony resisting arrest carries potential prison time; the prison range depends on your criminal history. If you don’t have a felony on your record, you face anywhere from probation to 2 years in prison. If you have a felony record, you face between 2 and 5.75 years in prison. The maximum fine for a felony charge, plus surcharges, is $274,500. A felony conviction also carries collateral consequences that may impact employment, finances, rights and opportunities. If an officer suffered financial loss from damaged property, injuries, or lost pay, a defendant may be ordered to pay restitution.
Reducing your Resisting Arrest Charge to a Misdemeanor.
As a non-dangerous, class 6 felony, resisting arrest may be reduced to a misdemeanor pursuant to A.R.S. § 13-604. This can be done by the prosecutor or judge. This is helpful to a defendant in plea negotiations because a judge can reduce it to a misdemeanor, even if you lose at trial. This rule doesn’t apply if you have more than one felony on your record. In reducing your resisting arrest to a misdemeanor, a judge considers the nature and circumstances of the crime, your history and character, and whether it’s unduly harsh to sentence you to a felony.
Common Defenses to Resisting Arrest in Arizona.
No criminal intent. The plain language of A.R.S. § 13-2508(A) demonstrates that you must intentionally try to prevent an officer from carrying out your arrest. Under A.R.S. § 13-105, intentionally means it was the person’s objective to engage in the illegal conduct. In other words, you cannot accidentally or recklessly resist an arrest. It must be done on purpose.
Self-Defense in Unnecessary or Unreasonable Police Force. While the lawfulness of the arrest is not an issue (State v. Windus (Ariz. App. 2004)), self-defense may be raised in limited circumstances. “No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint that necessary for his detention.” A.R.S. § 13–3881(A). The use of excessive force by the peace officer provides for a self-defense claim in prosecution. See A.R.S. § 13-404(B)(2).
The Defendant was Fleeing, Not Resisting Arrest. To stretch the resisting arrest statute to cover fleeing violates the statute’s intent. State v. Womack (Ariz. App. 1992). For example, a defendant’s flight on a motorcycle was “avoiding arrest” rather than “resisting arrest.” Id. The decision to pursue and the manner of pursuit lies with the officer and not with the defendant. Id.
Merely Avoided Arrest. If a defendant prevented arrest without using or threatening to use physical force or other means creating substantial risk of physical injury, he merely “avoids arrest.” State v. Sorkhabi (Ariz. 2002).
There Was no Arrest. “An arrest is made by an actual restraint of the person, or by his submission to the custody of the person making the arrest.” A.R.S. § 13–3881(A). You cannot resist an arrest unless an officer initiates an arrest effort.
Officer Didn’t Intent to Make an Arrest. Resisting arrest cannot be committed without an intent, on the part an officer, to make an arrest. State v. Womack (Ariz. App. 1992).
Mere argument with or criticism of a peace officer. This is not sufficient to find a person guilty of resisting arrest. State v. Tages, (Ariz. 1969); State v. Snodgrass (Ariz. 1979).
Unaware the Person Was an Officer. A defendant must have reasonably known it was an officer acting in the officer’s official capacity. Without such knowledge, there’s no criminal intent.
Unaware the Officer’s Placing You Under Arrest. A defendant must know they’re being placed under arrest. Without knowledge of an arrest, a defendant cannot have criminal intent.
Conflicting Video Evidence. Arizona’s law enforcement agencies are increasingly using body cameras. In some resisting arrest cases, video evidence may conflict with officer testimony.
No Physical Evidence. Without injuries or damage to property, resisting charges commonly rely on the testimony of an officer, rather than physical or video evidence. Those trials often come down to conflicting testimony. The lack of corroborating evidence raises a reasonable doubt.
Double Jeopardy: The legislature did not intend, and the Double Jeopardy Clause does not allow, multiple convictions and punishments under § 13–2508 for a single, continuous act of resisting arrest.
Constitutional violations. In any criminal case, a violation of one’s constitutional rights can result in the suppression of evidence or dismissal of the charges. Common examples include, illegal detainment, unlawful search, warrantless arrests, and coerced statements.
Tobin Law Office offers the following in Resisting Arrest Cases:
Flat Rates and Payment Plans: Find comfort in knowing your rights are protected at a reasonable flat rate. We offer affordable criminal defense in Arizona to help give you the representation you need. Clients know the total price up front; there are no hidden fees or surcharges.
Former Prosecutor: As a former prosecutor of two prosecuting agencies, Mr. Tobin provides valuable insight to how the other side approaches a case.
Excellent Communication and Contact: Mr. Tobin will personally handle your case from start to finish. Clients can contact Mr. Tobin by phone, text, and email.
Free and Confidential Consultations: When you contact us, you’ll be put in direct contact with Mr. Tobin for a free case evaluation.
Contact us for a Free Consultation on Resisting Arrest
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