Resisting Arrest with or without Violence: What is resisting?

In Florida, "resisting arrest" is the catchall statute for obstruction of a law enforcement officer. The state can charge this crime as either Resisting Arrest with violence which is a felony of the 3rd Degree or as Resisting Arrest without Violence which is a Misdemeanor of the 1st degree.

Resisting Arrest with Violence is a third degree felony punishable by up to five years in Florida State Prison and a $5,000.00 fine. The law does not allow a person from using any physical violence against an officer who engaged is in the lawful execution of his or her duties. The case law holds that even if an officer is making an illegal arrest, a person who uses force against the officer is guilty of this crime. Although the law looks to be straight forward, there are many nuisances that can be used to defense against such a charge.

Resisting Arrest without Violence is a first degree misdemeanor punishable by up to 364 days in the county jail and a $1,000.00 fine. The statute states that "whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty without offering or doing violence" is guilty of a first degree misdemeanor. There are many ways to challenge a Resisting Arrest without Violence charge. The state must prove that the officer was in the lawful execution of a legal duty. There are many reasons that the officer would not be in the lawful execution of a legal duty, such as the officer didn’t have the right to detain or question the citizen in the first place, was carrying out an illegal search or seizure, was unlawfully trying to enter a home, or was demanding a citizen do or not do an act that was actually legal.

Not obeying the lawful command of a law enforcement officer can turn into a night in jail for misdemeanor Resisting an Officer without Violence or worse for felony Resisting Arrest with Violence. When an officer asks you a question, they expect an answer, not a legal argument. Although you generally have a right to decline to answer or give consent to search, when an officer tells you to do something, they expect you to do it. If you’re one of those people who still believe you have any Constitutional rights outside of a court room, or chose to argue with or ignore the officer’s question, or fail to immediately obey the order (lawful or unlawful) – you may be arrested for “resisting arrest”, right or wrong.

Many of these types of cases can be fought even before formal charges are filed against the defendant. It is imperative to contact Mr. Sobel as soon as you are arrested. Time is of the essence in these cases.

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