Resisting arrest is one of the most frequently charged criminal offenses. In Florida, a person can find themselves accused of criminal resisting arrest even if they don’t think they’ve committed a crime.
At Stechschulte Nell, Attorneys at Law, we want all our clients and Tampa area community members to understand exactly what constitutes criminal “resisting arrest.” If you or someone you know is charged with resisting arrest, either alone or in addition to other charges, contact us right away to let attorneys Ben Stechschulte and Amy Nell begin fighting to protect your legal rights. We are Tampa’s board-certified criminal defense law firm.
What Is Resisting Arrest in Florida?
Florida law provides for two different “resisting arrest” offenses; one occurs without violence, and one involves an allegation that the defendant acted or offered to acct violently.
Resisting Arrest Without Violence — Police and other law enforcement officers can charge this offense with very little provocation. Something as minor as failing to follow a police officer’s instruction during the officer’s execution of a lawful duty can lead to the formal filing of a resisting arrest without violence charge.
The Florida Statute 843.02 in which the offense is specified reads as follow:
“Resisting officer without violence to his or her person.—Whoever shall resist, obstruct, or oppose any officer . . . personnel or representative of the Department of Law Enforcement; or another person legally authorized to execute the process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.”
The maximum penalty for resisting arrest without violence is up to 12 months incarceration or probation, and up to a $1,000 fine. This offense is rarely ever charged by itself. It is usually added to one or more other alleged criminal offenses. As a result, the ultimate sentence imposed following a resisting arrest without violence conviction is determined more by the accompanying charges than by the resisting charge. If charged alone, the disposition of the case would likely be very lenient if the defendant had no prior criminal record.
The definition of what constitutes resisting, obstructing, or opposing an officer in violation of the law is interpreted very broadly by the courts in Florida. Defendants have been convicted of this misdemeanor by providing false information, stiffening their arm when being handcuffed, remaining in a location when an officer directed them to leave, refusing to follow instructions, and other actions of a similar nonviolent nature.
Resisting Arrest With Violence — Acting violently or “offering” violence while resisting arrest is a much more serious offense under Florida law. As a third-degree felony, the penalty for a violent resisting arrest conviction could include up to five years in prison and up to a $5,000 fine. The likelihood of some period of incarceration is greater when any violence is directed at a police officer.
The Florida Statute 843.01 reads precisely the same as the misdemeanor version but requires some act of violence to be committed or offered by the defendant.
Defending Resisting Arrest Charges in Florida
Proving a defendant guilty of resisting arrest requires the prosecution to prove beyond a reasonable doubt that
- the defendant knowingly and willfully resisted, obstructed or opposed the officer, or other official enumerated in the statute,
- the officer was acting in the lawful execution of an official duty,
- the officer was lawfully authorized to execute the process or duty,
- the defendant knew the person was an officer or other official legally authorized to perform the duty.
The felony offense requires those elements to be proven and that the defendant used violence or offered violence during the commission of the offense.
Officer Not Acting Within Lawful Authority or Legal Duty — Resisting arrest is more properly called “resisting a lawful arrest.” If the arrest is not lawful, meaning if the officer is acting outside of their legal authority or is not engaged in a legal duty, then resisting such an arrest is not criminal.
Only an experienced criminal defense lawyer can distinguish when an allegation of resisting arrest is actually lawful resistance to an unlawful arrest. It’s unlikely that a layperson will know during the emotional height of a police confrontation whether the officers involved are exceeding their lawful authority.
Reacting Reflexively to Force — Recent events across the United States have illustrated the consequences of an officer applying enough force during an arrest that an arrestee physically moves to so they can breathe, or to prevent their arm from breaking. Reflexive movement should not constitute a criminal offense. This defense can require exceptional advocacy from your criminal defense lawyer because the force applied by the officer may seem reasonable to other observers. Testimony from an expert witness could be necessary.
Excessive Force by Police — The law permits any person to use whatever force is reasonably necessary to repel or defend themselves from excessive force applied during an arrest. As you can imagine, this defense requires evidence that the police exerted substantially more force than was necessary to execute the arrest.
This defense is reserved only for circumstances that are well beyond “close calls.” No person should try to evaluate all the factors required to make an excessive force judgment while in the heat of an active police interaction. Instead, this defense is a valuable resource in cases involving eruptions of violence between police and a suspect being arrested.
Avoid Resisting Arrest If Possible — Contact Stechschulte Nell, Tampa Criminal Defense
The best criminal defense lawyers never encourage any client to resists arrest, even an illegal arrest. The reason is that few if any suspects will manage to escape arrest. The inevitable result is that they will be arrested. Resisting can lead to an injury, either to them or to the police.
If you or someone you know is arrested, legally or illegally, trust a board-certified criminal defense lawyer to represent you and your legal rights in a court of law. In Tampa and elsewhere in Hillsborough Count, Stechschulte Nell, Attorneys at Law, are the criminal defense lawyers who are prepared to fight for your legal interests, vindicate your rights, and to expose any excessive or illegal police conduct.
Call Stechschulte Nell today for a case review at 813-280-1244.