No one wants to be arrested. Most drivers will slow down or double check that they are in the correct lane when they see a police car nearby. But once the blue lights come on, Texas law requires you to pull over and comply with law enforcement. If at any point you prevent an officer from making an arrest, executing a search warrant, or transport a prisoner using force, you can be charged with resisting arrest. Resisting arrest is a serious charge; one that comes with the potential for heavy fines and jail time. To avoid these serious consequences, you will need an experienced Texas criminal defense attorney on your side.
Attorney Doug Murphy is Houston's top criminal defense attorney. An experienced trial lawyer, Doug Murphy has successfully defended clients on a variety of criminal charges in and around Houston. It's possible to beat a resisting arrest charge, and the Doug Murphy Law Firm, P.C. has the track record to prove it. Contact the Doug Murphy Law Firm today at (713) 229-8333 for your free consultation.
Resisting Arrest under Texas law
The charge of resisting arrest is defined in the Texas Penal Code. According to Section 38.03 of the Texas Penal Code, a person can be convicted of resisting arrest when he or she:
intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
You can be convicted of resisting arrest even if you believed at the time the arrest was unlawful so long as you knew the person you resisted was a peace officer. What's more, you can be convicted of resisting arrest regardless of whether you or another person were the targets for arrest by the police.
Finally, it's important to know that resisting arrest is an entirely different crime than evading arrest and detention.
Resisting Arrest vs. Evading Arrest and Detention
While resisting arrest and evading arrest sound similar, they are different crimes that apply in different situations. Some legal defenses are applicable to one charge but not the other. If you have questions about the charges you face, contact a criminal defense attorney to help you understand what you have been charged with.
If you are facing charges for resisting arrest, you must have used some measure of force against the peace officer trying to arrest you or another person. That distinguishes the crime of resisting from that of evading arrest and detention because evading does not require the use of force for a conviction.
Another major difference between the two relates to whether or not the arrest was lawful. It is always illegal to use force when resisting arrest; in other words, you can be charged with a crime if you resist even an unlawful arrest. However, the underlying arrest must be lawful for a conviction of evading arrest and detention.
What the State Must Prove for a Resisting Arrest Conviction
Being charged with resisting arrest does not guarantee that you will be convicted of the crime. The prosecutor in your case will still be required to prove the case beyond a reasonable doubt to obtain a conviction. That's where your defense attorney comes in. If your attorney can convince a jury of your peers that even one of the elements of the crime has not been proven, you will be acquitted. To obtain a resisting arrest conviction, the prosecutor in your case must show that
- you obstructed the office by force; and
- you did so intentionally.
Obstruction by Force
It's not enough to simply avoid being arrested or detained to be convicted of resisting arrest. You must be found to have forcefully obstructed or prevented the officer from doing his or her duty.
Examples include actions like pulling the officer away from the person they were attempting to arrest or brandishing a firearm in an attempt to force the officer to stop.
To be convicted of resisting an arrest, the state will also have to show that you intended to do so. That means even if you made physical contact with an officer that obstructed an arrest attempt, you wouldn't be guilty of resisting arrest if that contact was unintentional.
Penalties for a Resisting Arrest Conviction
In most cases, resisting arrest is treated as a Class A misdemeanor under Texas law. This is the highest level of misdemeanor before a charge becomes a felony. For a class A misdemeanor, a conviction carries a maximum jail sentence of 1 year. In addition to that, you may also face a maximum fine of no more than $4,000.
In some cases, a resisting arrest charge can be upgraded to a felony. If you are convicted of resisting arrest in which a deadly weapon was used, your charge will be upgraded to a third-degree felony. A third-degree felony carries a potential prison sentence in the Texas Department of Corrections for no less than 2 years and no more than 10 years. Additionally, felony resisting arrest carries a potential fine not to exceed $10,000.
The potential defenses in a resisting arrest case can be fairly limited, given that it is unlawful to resist even in cases where the arrest was unlawful. However, there are two instances where resisting arrest is justified and can lead to an acquittal. According to Texas Penal Code Section 9.31 (c), you are justified in resisting being arrested:
- if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
- when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
In other words, it is a valid defense to a charge of resisting arrest if you defend yourself in a situation where the officer uses unnecessary force before you offer any resistance whatsoever. Consider the following example:
You are walking down the street when a police officer runs up behind you and shouts “Stop, police!” As you turn around to face the officer, he draws his gun and opens fire on you. Believing it is necessary to your survival, you wrestle the gun away from the officer. When additional officers arrive, you are arrested for resisting. However, because firing a weapon on a suspect that has not offered any resistance is greater force than necessary, you have a valid claim for self-defense when you used force to take the gun away from the officer.
While the above example is illustrative, it's important to know that even the best defense may not be enough if you don't have the right defense attorney fighting for you. An experienced defense attorney may be able to have your charges dismissed altogether with a strong self-defense claim.
Other common defenses depend on the circumstances of your arrest. While you can be charged for resisting arrest even when the arrest itself is unlawful, your attorney may be able to have some of the evidence used against you excluded from trial if law enforcement collected it from you as part of an illegal search and seizure. This can include physical evidence as well as recorded statements.
Do you Need a Criminal Defense Lawyer
Yes. But not just any attorney will do. There are hundreds of attorneys in the Houston area that hold themselves out to defense attorneys. That's why you need an attorney that has been Board Certified as an expert in criminal defense law. The process to become Board Certified as an expert in criminal defense law is long and difficult; only the most talented and experienced criminal defense lawyers in the state are able to obtain this distinction.
Doug Murphy is a Board Certified expert in criminal defense law, certified by the Texas Board of Legal Specialization. Only a fraction of the attorneys that practice in the Houston area is able to call themselves an expert in criminal law and Doug Murphy is one of them.
Hiring a Houston Criminal Defense Lawyer you can Trust
At the end of the day, a charge of resisting arrest is defensible. And while the prosecutor in your case may offer you a plea bargain, it will still mean that you have been convicted of a crime. In most cases, the best way to avoid a conviction altogether is to try the case in front of a jury of your peers.
Approaching every case as if it would end in a jury trial is one of the guiding principles of the Doug Murphy Law Firm, P.C. Doug Murphy is a litigator at heart, and he understands that treating every case as if it will go to trial puts his clients in the best position to obtain the best possible outcome. Contact the Doug Murphy Law Firm, P.C. today for your free consultation.