Do I need a criminal defense in resisting arrest charges?

Currently, in New York State, it is a class A misdemeanor to resist arrest from a police officer. Section 205.30 of the New York Penal Code defines this crime as resisting or evading an authorized arrest in any capacity. This includes attempting to help someone else resist or evade being arrested.

A class A misdemeanor is punishable by up to one year in jail. Because it is a misdemeanor crime and not a felony, judges are more likely to allow defendants charged with resisting arrest to post bond, pay fines, participate in community service and other diversionary activities rather than serve jail time.

There is now pending legislation in the New York State Senate that seeks to redefine the classification of resisting arrest to a class E felony. By increasing the penalty to a class E felony, a defendant convicted of this crime could be sent to prison for one to four years. If this law is passed then it may be possible for a person to serve prison time for this offense, even if the primary reason for his or her arrest is later dismissed, such as drug possession, intent to distribute and etc.

The key here is that crucial phrase in the definition of resisting arrest, "intentionally prevents or attempts to prevent…an authorized arrest". Regardless of whether it is a misdemeanor or felony, resisting arrest charges can always be challenged on the validity of the arrest. In other words, one might argue that there was no violation of the penal code for resisting because the authorization for the arrest was not present at the time of the arrest.

If you are a New York resident currently facing resisting arrest charges, you should know that you have a constitutionally protected right to remain silent whenever police arrest you. Your silence, accompanied by immediately contacting, your attorney is always a much more effective defensive strategy than attempting to evade law enforcement.

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