The most common crime against an officer is resisting arrest under Penal Code section 148(a)(1). Penal Code section 148(a)(1) is a misdemeanor. Often times, officers will arrest you for resisting arrest when you are not following their instructions, challenging their authority or physically resisting their demands. District attorneys will often ask the officers for their opinion about how the case should resolve and if the client should serve jail time. The problem with officers having charging and sentencing discretion is that similarly situated clients may be treated differently based on which officer they are dealing with.
Penal Code section 148(a)(1): The elements for resisting arrest include the following: 1) the defendant willfully resisted, delayed, or obstructed a peace officer, public officer or an emergency medical technician (EMT); 2) at the time of the offense, the peace officer, public officer, or EMT was engaged in or attempting to engage in the performance of his or her duties; and 3) the defendant who willfully resisted, delayed or obstructed knew or reasonably should have known that the victim was a peace officer, public officer or EMT and that the victim was engaged in the performance of his or her duties.
The prosecution must prove every element beyond a reasonable doubt for you to be found guilty of Penal Code section 148(a)(1). Resisting arrest charges are usually filed when someone is being arrested for a different crime, but resisting arrest cases can be charged on their own as stand-alone offenses.
The District Attorney’s office may also charge you under Penal Code section 69. Although similar to Penal Code section 148(a)(1), Penal Code section 69 is usually more serious. Penal Code section 69 may be charged as a misdemeanor or a felony (also known as a “wobbler”).
Penal Code section 69: The elements for this offense state that any person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists the officer by using force or violence while the officer is in performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.
(b) The fact that a person takes a photograph or makes an audio or video recording of an executive officer while the officer is in a public place, or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of Penal Code section 69.
The District Attorney’s office will usually charge Penal Code section 243(b) when they believe that the defendant committed a battery against the officer. Penal Code section 243(b) is a misdemeanor.
Penal Code section 243(b): The elements for this offense include the following: 1) the defendant committed a battery upon the person of a peace officer, firefighter, search and rescue member or any other person engaged in the performance of his or her duties; 2) at the time of the battery the peace officer, firefighter or any other person was engaged in the performance of his or her duties; and 3) the defendant who used the force or violence knew or reasonably should have known that the other person was: (a) a peace officer, firefighter or other, or (b) engaged in the performance of his or her duties.
A district attorney will charge defendants with a felony under Penal Code section 243(c)(1) when the officer suffers an injury. It is not required that the injury be serious. A felony “strike” may be charged when the officer suffers great bodily injury.
Crimes against officers require experienced attorneys that know how to properly investigate and argue the facts to a jury. These crimes are difficult because the case usually comes down to the officer’s word versus the client’s word. Unfortunately, some officers will lie in their police reports and on the stand to justify an arrest or the use of excessive force. It is important to hold officers accountable for their actions and to aggressively combat these charges. The attorneys at Hepburn, Hernandez and Jung Trial Attorneys have handled hundreds of cases involving crimes against officers and have a track record of winning these difficult cases. Please contact HHJ Trial Attorneys today if you are charged with a crime against an officer.