New Jersey DWI Attorney John Menzel

How a Misunderstanding Can Lead to a Resisting Arrest Charge


In many states, the legal statute for resisting arrest covers a ton of possible scenarios. The charge, which usually is thought of as having to do with using physical force against an officer or running from someone, can also be charged for something as light as refusing to follow a lawful order.

This refusal is called “passive resistance” which happens when an officer gives a lawful order and the defendant fails to follow it. The officer might tell the defendant to put their hands up, and if the defendant does not do it, they can be charged with resisting arrest.

Passive vs. Active Resistance

“Passive resistance” is one of the two types of resisting arrest charges in the state, the other is “active resistance.” Active resistance is defined as doing either of these two things during an arrest: threatening to use force or actually using force against the officer; or using another means to create a substantial risk of injury to the officer or someone else that is near the arrest taking place.

In cases of passive resistance, someone will be found guilty if they take nonviolent physical action or intentionally act in a way that is meant to impede, hinder, or delay the arrest that is being made during the incident.

The inclusion of passive resistance in the resisting arrest statute is what makes the law so broad. Typically, one thinks of resisting arrests as some physical attack on a police officer in order to avoid arrest, or a person fleeing the scene of a crime. However, with passive resistance it can be as simple as verbally refusing to comply with an order from that officer.

Possible Defenses

When defending a passive resistance case, the defense lawyer will try to show that the officer was giving contradictory or confusing orders to the defendant during the arrest. An example of this might happen when someone is pulled over. An officer might tell them to put their hands on the wheel, and later ask them to grab their license.

The officer might then arrest them for resisting because they took their hands off the wheel. In this case, the defense would be able to show that the officer gave conflicting orders, and the defendant was simply confusing, not actually trying to knowingly disobey the officer. Because the defendant was trying their best to follow orders and the officer was being unreasonable and confusing, the court will exonerate the defendant assuming the defense team has the right evidence that this happened.

When the defendant is accused of active resistance, their legal team will likely employ a self-defense argument in court. Sometimes, an officer will use unlawful force against a defendant, and the defendant will defend themselves. Should the defense be able to prove that the officer was acting lawfully and the self-defense was justified, they cannot be considered to have been resisting arrest unlawfully. Usually, this defense will require the testimony of multiple outside witnesses or body camera footage which shows that the officer was using excessive force or intimidation.

Another key aspect of a defense for resisting arrest is trying to show that the defendant did not intend to resist the arrest at all. An example where this could happen is where the defendant is not aware that the person trying to arrest them is a police officer and they got confused.

Additionally, if it can be proven that the arrest itself was unlawful (such as in a Miranda Rights Violation), some forms of resistance are acceptable, though punching the officer could still land someone with an assault charge. Another example where the lawyer might be able to show a lack of intent to resist is where it is not clear that they were actually being placed under arrest. For example, an officer might start putting someone in handcuffs without informing someone of the arrest, so naturally, the defendant will try to get loose or walk away.

Sometimes, the charge is given on a very small amount of resistance, like simply pulling away from the officer, so if they do not know they are under arrest, this action can end up being justified in court. This crime ends up being overcharged because there are some cases where an angry officer will see anything but complete and total compliance with them as resistance.

Since resisting arrest is a very broad statute in many states, it is overcharged. If you end up being arrested and are also charged with resisting arrest, it is imperative that you speak to a knowledgeable defense attorney as soon as possible.

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About the Author

Talented, motivated, and service-oriented expert John Menzel J.D. provides strong representation for DUI cases.