In many types of cases there are disagreements between the person being arrested and the police officer conducting the arrest. Perhaps alcohol is involved or not enough information has been provided by the arresting officer as for the basis for the arrest. Resisting Arrest in Virginia is a Class 1 Misdemeanor and is a crime. However, just because you hear the words "stop resisting" from the officer does not mean the conduct is resisting arrest.
What is Resisting Arrest
Resisting Arrest in Virginia is defined by §18.2-479.1 as intentionally preventing or attempting to prevent a police officer from arresting a person. The statute goes on to say that "preventing" means fleeing from the police. In addition, to activate this statute, the police officer must either apply physical force to the person or tell the person they are under arrest while having the legal authority and immediate physical ability to place the person under arrest and a reasonable person either knows or should know they are not free to leave.
Case law has held that simply running from the police is not resisting arrest in Virginia. We see many cases in Fairfax County where the person is ordered to stop by the police and takes off running. Once they are detained they are charged with resisting arrest. However, this is not resisting arrest because physical force is not applied to the individual when the order to stop was made by the officer.
In addition, simply struggling with the police is not resisting arrest. In many crime and cop shows you will hear the officer yell, "Stop Resisting" while the suspect is on the ground wrestling with them and are ultimately handcuffed and detained. This is not resisting arrest in Virginia because there was no "fleeing." The statute is designed to punish those that are in police custody and then take off running.
For example, Joseph v. Commonwealth, 64 Va. App. 332 (2015), is a more recent that seems like a clear resisting arrest situation. In that case, the Defendant was stopped for speeding by the police officer. When the officer went to run the Defendant's information, he found that the Defendant had active warrants pending for his arrest (meaning the officer would need to take him in). At this point, the Defendant became argumentative and refused to get out of the car. After further arguing the Defendant finally got out of the car. However, when asked, the Defendant refused to put his hands behind his back to be handcuffed, repeatedly pulled away, and was pulling his hands out of the handcuffs before the officer could secure them. When backup arrived the Defendant was finally detained and he was charged with resisting arrest. Notwithstanding all of that, the Court found he was not guilty of resisting arrest. It held that the Defendant's combative behavior was not enough to find him guilty of the resisting arrest crime because he never fled. Specifically, because "fleeing" means moving away from the officer's control, the Defendant was not guilty in this case because he never left the police officer's control. Basically, the Court held that "being a pain in the butt" is not enough to be guilty of resisting arrest in Virginia.
We have seen many Fairfax County Police Officers charge resisting arrest simply because the person was not compliant with them. However, being uncooperative with the police is not resisting arrest. Because resisting arrest is defined as fleeing from a police officer, we have been successful in many of these cases since the definition is right in the statute for easy inspection of the Judge.
Punishment for Resisting Arrest
Because resisting arrest is a Class 1 Misdemeanor, there is a potential jail sentence of up to 12 months in jail and $2500 fine. While there is certainly a possibility of jail time, such a lengthy jail sentence is unlikely. Resisting arrest is a type of charge that generally gets charged with other crimes, such as Disorderly Conduct and Obstruction of Justice.
In our cases, we will first look at the facts of the case to see what defense there are to avoid these punishments. In many cases, a trial is appropriate because the person is simply not guilty. In other cases, we may have our client complete certain tasks prior to court for purposes of mitigation so we can negotiate a plea deal with the prosecutor to avoid exposure to jail time.
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