Being arrested in public can be a humiliating experience we may wish to avoid at all costs. It may be tempting to resist arrest, especially when the arrest is in public.
While that are times when you may legally resist arrest, most of the time resisting arrest is illegal in Oklahoma. If you resist arrest, not only will you face arrest for the underlying charge, but the prosecutors could add a charge of resisting arrest.
On the other hand, police or prosecutors might allege resisting arrest when you offered no actual or deliberate resistance. An involuntary movement or motion a person makes while being detained might be reported as resistance. Failure to understand or exactly follow a police officer’s orders could result in allegation of resisting arrest.
Police might sometimes shout contradictory orders or shout pointed questions then demand that a detainee “shut up.” Even slow reactions might be the basis for a claim that you resisted arrest. Police have been known to reflexively yell “Stop resisting!” even though a person offered no resistance.
When resisting arrest charges are on the table, the accused is usually already in an adversarial relationship with police. A person might have been frustrated, angry or confused during an arrest, perhaps arguing with arresting officers. When the person regains a sense of calm, police might try to persuade the person to admit that they resisted arrest because they were genuinely agitated during the arrest. Yet a general sense of agitation is not resisting.
It is important that a qualified Oklahoma defense attorney review facts of a case before you make any statements to police or prosecutors that could validate a claim that you were actually resisting a lawful arrest. Contact a Wirth Law Office criminal defense attorney in Tulsa at (918) 879-1681.
Definition of Resisting Arrest
In Oklahoma, resisting arrest is defined as knowingly resisting, either through the use of force or violence, the action of any executive (law enforcement) officer in the performance of his or her duty. Okla. Stat. tit. 21 § 268. It is a misdemeanor.
In order to prove a case for resisting arrest, a prosecutor must prove every element of the crime. If an element is not proven, there should be no conviction. Thus, successful defenses attack elements of the crime.
These are the elements of the crime of resisting arrest:
- by use of force or violence;
- a peace or executive officer;
- in the performance of his or her official duties. OUJI-CR 6-47.
What Does Resisting Mean Under the Law?
Resistance is not passive. It is active. For a conviction for resisting arrest, that resistance must involve force or violence. Physical force is a necessary component. Words alone, even loud and angry words, are not enough to qualify as resistance. The force can include either harming or attempting to harm the officer or physically struggling against efforts to restrain the person.
If it is not clear that an officer is arresting the defendant in the performance of his or her official duties, then resistance might not meet the element of knowledge. Sometimes, an off-duty police officer witnesses an unlawful incident and decides to make an arrest. If that officer is out of uniform or has not clearly identified himself or herself as an officer, resisting arrest may be lawful.
In fact, defenses often raise the issue of an unlawful arrest. This might be a situation in which there is no warrant for the arrest or the warrant is invalid. There are some arrests that are valid even without a warrant, such for public intoxication or driving while intoxicated. An unlawful arrest might be such as the rare instances when a rogue police officer uses the color of authority to rob or sexually assault a person under pretext of an arrest.
A person may lawfully resist an unlawful arrest, but the resistance used must be reasonable. Oklahoma courts have decided, however, that a person cannot lawfully resist unlawful detention. If an officer conducts an improper traffic stop with no probable cause, a right to resist unlawful arrest would be irrelevant unless the officer then unlawfully placed the detained person under arrest.
Resisting arrest in Oklahoma is chargeable as a misdemeanor and if convicted, you could spend up to a year in jail and pay a possible fine. This is added to the sentence for the underlying crime.
If you or a loved one are being charged with resisting arrest, it is important to talk to an knowledgeable Tulsa defense lawyer as soon as possible to understand your possible defenses and options under the law, both for the charge of resisting and for the underlying crime.
Free Consultation: Tulsa Defense Lawyer
If you would like a free consultation with a Tulsa, Oklahoma lawyer, call the Wirth Law Office – Tulsa at (918) 879-1681 or toll-free at (888) Wirth-Law. If you prefer written correspondence, you may submit a question through the form at the top right of this page.