Resisting arrest

According to New York Penal Law §205.30, a person is guilty of resisting arrest when he or she intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or herself or another person. Resisting arrest is a class A misdemeanor punishable by up to one year in jail, three years probation, or a fine. A misdemeanor conviction for resisting arrest is a criminal conviction that carries various collateral consequences in immigration, professional licensing, housing, and employment fields.

According to Jury instructions used in New York Criminal courts, intent means conscious objective or purpose.  Thus, a person intentionally prevents or attempts to prevent a police officer from effecting an authorized arrest of himself/herself or another person when his or her conscious objective or purpose is to do so. That means that accidental or involuntary movement of your body or arms that prevents a police officer from effecting arrest does not satisfy the elements of resisting arrest.  An arrest is authorized when the police officer making the arrest has reasonable cause to believe that the person being arrested has committed a crime or when a police officer has an arrest warrant. Reasonable cause does not require proof that the crime was in fact committed.  Reasonable cause exists when a police officer has knowledge of facts and circumstances sufficient to support a reasonable belief that a crime has been or is being committed.

Sometimes we have clients who complained that they did nothing wrong and just wanted to explain to police officers their side of the story. In trying to do this, people may have moved their arms around and did not comply with the officer’s request to turn around and put their hands behind their backs in order to be handcuffed. This is why it is easy to satisfy the requirements of preventing or attempting to prevent a police officer from arresting you. It would be sufficient to flail your arms or hold them so they cannot be handcuffed.

It is important to note that the person does not necessarily ultimately have to be charged with the underlying crime for which the police officer initially attempted to arrest that person. Moreover, even if the person is charged with both the underlying crime for which a police officer attempted to arrest him or her and resisting arrest and the person is ultimately acquitted by the jury of the underlying crime, that person still may be convicted for the resisting arrest. What is controlling is whether the police officer had probable cause or a warrant to arrest and whether the subject intentionally prevented the police officer from doing so. This is why we always advise our clients not to resist arrest. Doing so will subject the person to the additional charge of resisting arrest even though that person may be never charged with the underlying crime or even eventually acquitted of the underlying crime. More importantly, by resisting arrest you are risking your health and ultimately your life as proven by numerous cases of people dying while police are attempting to arrest them. It is always better to go through arrest and beat your case in court. Moreover, you may have a viable civil case for wrongful arrest against police and the municipality if the arrest was in fact unauthorized.

If you have any questions regarding the charge of resisting arrest, please do not hesitate to contact our law office and speak with an attorney.