Clearing your name is our #1 priority.

meet the attorneys case results
  • Felony Resisting Arrest: What Does the Prosecutor Have to Prove?

    Posted on by JACK MKHITARIAN

    person under arrestTo get a guilty verdict in felony resisting arrest, the prosecutor must prove beyond a reasonable doubt that you intentionally resisted arrest – and that is not as hard as it sounds.

    While the bar is not extremely high, that goes both ways. An officer cannot interpret your hesitation as resisting arrest either. Therefore, if you are asking questions or hesitant when confronted by an officer, that is not a justified resisting arrest charge. Instead, it comes down to the circumstances of the case, and what led the officer to arrest you.

    The Basic Elements of Resisting Arrest – What a Prosecutor Needs to Secure a Conviction

    The term “resisting arrest” means that the defendant intentionally prevented law enforcement or a law enforcement official from carrying out their duty and that they posed a serious risk of injury to the officer or public during that resistance. To ensure that arrest, the officer would have had to use force to secure the defendant.

    Some states are stricter about what they consider “resist” in these instances. In some, the law clearly states that any action preventing an officer from carrying out their duty is resistance. In others, specific actions, such as becoming violent, are required.

    The burden of proof is on the state, and they must still prove beyond a reasonable doubt that you are guilty of resisting an arrest. Some elements that they need to do this include:

    • Prove that you knew the person arresting you was a law enforcement officer and you resisted anyway. A person might resist the arrest of an undercover officer because they cannot tell that they are truly a law enforcement official. However, if you know the person (or reasonably should have known) was in law enforcement, and you resisted that arrest, you are making the case much easier for the prosecutor.
    • Prove that the officer was performing his or her duties and was within the law while doing so. Another critical element is that the officer must have had probable cause to stop you or interfere with your day and that they were following the law and performing their ordinary duties at the time of the arrest. If an officer is acting unlawfully and you resist that arrest, they may have no grounds to charge you with resisting an illegal arrest.
    • Show the court that you intentionally resisted arrest. Sometimes, this is done with the officer’s testimony, while other times, the officer’s body camera footage, local cameras, or even eyewitness testimony is used. The bottom line, the prosecutor must have someone who can testify or show the court outright that you intentionally resisted the arrest.

    What Actions Are Commonly Associated with Resisting an Arrest?

    Typically, you are resisting arrest if you take physical or vocal action to resist, obstruct, or pause a lawful arrest. You must realize that any action impeding an officer from carrying out their duty may be considered resisting – depending on where you live. Some actions that law enforcement generally classifies as resisting arrest include:

    • Physical Attacks – Making any physical attacks against the officer, such as punching, kicking, or biting during the arrest. Struggling and wrestling against the officer as they attempt to handcuff you are also considered resisting arrest.
    • Giving False Identification Information – Sometimes, the act does not have to be physical. Instead, it could be as simple as giving a false name to avoid an arrest. Officers show up to your place of work, asking for you by name. When confronted, you identify yourself as another person to avoid an arrest.
    • Forcing Officers to Use Force – If you are resisting an arrest to the point where law enforcement must drag or carry you into their police car, you are more likely to face resisting arrest charges.

    What Is the Penalty for Resisting Arrest?

    In most cases, resisting arrest in New Mexico is not a felony; instead, it is a misdemeanor. With that, however, you could spend up to 12 months in jail and pay a fine of up to $1,000.

    Common Defenses to Resisting an Arrest

    If you are charged with resisting arrest, you may have some defense opportunities. It is best to speak with a skilled defense attorney to explore your options as not all of these apply to all cases.

    Some common defenses include:

    • Defending yourself against unwarranted excessive force. You might claim self-defense if law enforcement is using unwarranted excessive force or trying to restrict your movements violently. In this case, you must show that you only used a reasonable amount of resistance and that you did not use excessive force like the officer.
    • Showing that the arrest was unlawful and therefore you should not have been under arrest in the first place. Questioning the validity of the arrest is a common strategy. After all, one of the elements is that the officer must be performing his or her duties, conducting a lawful arrest, and have probable cause for that arrest. If the officer is simply arresting you with no suspicion of breaking a law, then they have no right to arrest you in the first place; therefore, they have no grounds to say you were resisting that arrest.

    Hire an Attorney Immediately

    While you might struggle against law enforcement, a charge of resisting arrest is serious. This is often tacked onto the original crime you are being arrested for, which can increase the time you spend in jail, the fines you pay, and further affect your future. If you have been arrested for a crime, and the state is trying to say you resisted arrest, contact an attorney immediately.

    The team at New Mexico Criminal Law Offices has helped countless individuals just like you fight back against unwarranted claims of resisting arrest. We know how overzealous prosecutors can be, and we have fought back against not only the initial charge but add-on charges just like this one.

    Contact us today to schedule a free case evaluation or request more information online by filling out an online contact form.