A person commits the offense of resisting arrest when he or she intentionally prevents or obstructs a peace officer from effecting an arrest, a search, or a transportation of him or her or another person by using force against the peace officer.
The resistance that is required for the offense of resisting arrest must constitute an attempt to prevent or to obstruct an arrest or a search. The words “effecting an arrest” mean the process or transaction by which control over a person is obtained. They do not merely mean the arrest itself. If a defendant forcibly interferes with the process of arrest, he or she is guilty of the offense of resisting arrest. An arrest is complete when a person’s liberty is restricted or restrained and when the person reasonably believes that he or she is not free to leave. The fact that a law enforcement officer tells a person that he or she is under arrest does not make the arrest complete. A person who does not resist arrest when a law enforcement officer tells him or her that he or she is under arrest may be guilty of the offense if he or she resists when he or she is taken under control.
A person may commit the offense of resisting arrest after he or she is arrested if he or she prevents or obstructs a peace officer’s transportation of him or her.
An essential element of the offense of resisting arrest is the use of force against a peace officer who is conducting an arrest or a search. The force must be an affirmative act that is directed against the peace officer. Merely pulling away or not cooperating with the peace officer may not constitute the offense of resisting arrest unless the pulling away or the non-cooperation involves force. However, any type of struggle or any extended physical or violent contact with the peace officer constitutes the offense.
An indictment or an information charging a defendant with the offense of resisting arrest must allege the use of force against a peace officer. The indictment or the information should allege the manner in which the defendant resisted arrest.
The fact that an arrest may be unlawful does not constitute a defense to the offense of resisting arrest. However, a defendant may claim as a defense that excessive force was used during his or her arrest. This defense is similar to a self-defense claim.
The offense of resisting arrest may be a lesser-included offense of the offense of assault on a peace officer
The offense of resisting arrest is normally punished as a misdemeanor. If an arrest or a search is resisted by the use of a deadly weapon, the offense may be punished as a felony.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.