Austin Resisting Arrest Lawyer | ATX Legal
A resisting arrest charge is sometimes justified, but often it is charged when the police officers cannot prove anything else. Experienced criminal defense lawyers can often get these charges dismissed without a trial. Especially in Travis County, the prosecutors are not usually anxious to press resisting arrest charges forward.
Still, it’s important to take resisting arrest charges seriously. If you or a loved one is charged with misdemeanor or felony resisting arrest, you should fill out a contact form for a free consultation with a criminal defense lawyer.
When Can a Law Enforcement Officer Charge Me with Resisting Arrest?
Under the Texas Penal Code Section 38.03, a person can be charged with resisting arrest if they intentionally prevent or obstruct a person who they know is a peace officer or someone performing a function of a peace officer from effectuating an arrest, search, or transportation. Failure to comply with a law enforcement officers’ commands can also lead to a charge of resisting arrest.
What Does the Prosecutor Need to Prove in a Resisting Arrest Case?
To be found guilty of resisting arrest, the prosecutor must prove all elements beyond a reasonable doubt. First, the individual being charged must have intentionally resisted, obstructed, or prevented a law enforcement officer from carrying out a lawful arrest or detention. This implies a conscious effort to oppose or hinder the arrest.
Second, the individual must have been aware that the person they were resisting was indeed a peace officer, or someone acting under a peace officer’s official authority, carrying out their lawful duties.
This means the police officer was performing an action within their jurisdiction and the scope of their duty, such as making a lawful arrest or executing a valid court order.
Lastly, the police officer involved must have been acting lawfully at the time of the alleged resistance. If the arrest or detention was unlawful, then the charge of resisting arrest may not stand. However, it’s crucial to note that the specifics of what constitutes a lawful arrest can be complex and varies from jurisdiction to jurisdiction.
Always consult with a qualified criminal defense attorney if charged with resisting arrest to understand the laws specific to your location and situation.
Non-Physical Acts, Threats, or Refusals to Obey Orders
While physical acts of resistance against a police officer are the most common form of resisting arrest, it’s important to note that non-physical passive resistance such as threats or refusals to obey orders can also constitute resisting arrest.
For example, if someone refuses to comply with a police officer regarding a lawful order to stand still or show their hands during a stop and frisk, this could be considered resisting arrest.
Defending Against A Resisting Arrest Charge
Defenses against a resisting arrest charge often hinge on whether the law enforcement official was acting lawfully at the time and if the defendant was aware they were resisting a lawful procedure. To contest such a charge, an individual might assert the following defenses:
Unlawful Arrest: This is the most common defense. If the initial arrest was not lawful, the person cannot be charged with resisting that arrest, since they can resist arrest that is unlawful. This is difficult to prove in practice.
Self-Defense: If the police officer used excessive force during the arrest, the defendant might have been simply defending themselves from harm. This defense requires establishing that the officer’s use of force was unreasonable under the circumstances.
Lack of Knowledge: If the defendant was not aware they were resisting a peace officer, they could use this as a defense against resisting arrest. For instance, if the officer was not in uniform and did not identify themselves as a law enforcement agent, the defendant should not be found guilty of resisting arrest.
False Accusation: Sometimes, a defendant may claim that they have been falsely accused of resist arrest. This usually happens in cases where there are no witnesses to the arrest apart from the arresting law enforcement officers.
Each of these defenses is fact-specific and requires thorough analysis of the circumstances surrounding the arrest. It’s critical to consult with a criminal defense attorney who can guide you through the complexities of your case.
Felony Resisting Arrest Charges
In Texas, resisting arrest is typically classified as a misdemeanor. However, the charge can escalate to a felony under certain conditions. Texas Penal Code Section 38.03 defines resisting arrest, search, or transportation.
A person is guilty of a felony charge if the individual uses a deadly or dangerous weapon to resist the the peace officers’ arrest or search. A deadly weapon refers to anything that is designed, made, or adapted for the purpose of inflicting death or serious bodily injury. It could include firearms, knives, or even certain types of vehicles.
A person convicted of this third-degree felony, an individual could face between 2 to 10 years in a state prison and/or a fine up to $10,000. Always consult with a Texas criminal defense attorney to understand the nuances of the law and potential defenses if facing such charges.
Misdemeanor Resisting Arrest
In Texas, as per the Texas Penal Code Section 38.03, the typical misdemeanor resisting arrest charge is classified as a Class A. Individuals convicted of a Class A misdemeanor offense can face penalties which may include up to one year in county jail and/or a fine not exceeding $4,000.
The specific penalties for resisting arrest can vary based on the court’s discretion, the individual’s prior criminal history, and the specifics of the case.
It’s also essential to remember that a conviction may have far-reaching consequences beyond the immediate legal penalties, including potential difficulties in securing employment or housing due to a criminal record. Therefore, it is advised to seek professional legal counsel if facing such charges.
Resisting Arrest FAQs
Does Resisting Arrest Conviction Mean Jail Time?
A conviction for resisting arrest can lead to county jail time. If it’s a Class A misdemeanor, it can result in up to one year in county jail. If a deadly weapon was used and the charge escalates to a third-degree felony, the individual could face between 2 to 10 years in a state prison. This doesn’t mean jail time is likely in the majority of cases, but there is a substantial risk if charged with a felony.
Can I be charged with Resisting even though there is no underlying charge?
Yes, you can be charged with resisting arrest even if there’s no underlying charge. The act of using physical force to resist against an arresting officer, regardless of the legality of the arrest, can lead to a separate charge of resisting arrest.
What is Unlawful Arrest?
Unlawful arrest (aka illegal arrest) refers to an arrest that is made when the arresting officer acts without probable cause or without a proper arrest warrant against the arrested person. It means that the law enforcement officer has acted outside of their lawful authority.
Don’t I Have the Right to Resist Unreasonable or Excessive Force?
While every situation is unique, generally, individuals have a right to resist unlawful arrests or excessive force. However, it’s important to consult with a legal advisor for case-specific advice because your opinion on what is reasonable force might not be in-line with case-law.
Should I Sue the Police for Excessive Force?
It’s important to recognize that the civil and criminal case are separate proceedings. Usually I recommend to handle criminal charges first. However, there are exceptions to every rule. If you believe that excessive force was used during your arrest and you have a serious physical injury, it may be possible to take legal action against the police.
These cases can be complex and require substantial evidence. Therefore, it is strongly recommended to consult with a lawyer before proceeding with such action.
Our Experienced Criminal Defense Lawyer Can Help
If you have been charged with resisting arrest or believe that excessive force was used during your arrest, our experienced criminal defense lawyer can help. Attorney Rob Chesnutt understands the complexities of resisting arrest cases and will work to protect your rights and defend your case.
We will thoroughly investigate the circumstances surrounding your resist arrest case and gather evidence to support your defense. Our goal is to provide you with the best possible