Thursday, October 24, 2013

Penal Code Section 148(a): Resisting Delaying Or Obstructing a Peace Officer



When the police investigate a crime, be it a DUI, drug possession, Domestic Violence, theft, or any other crime, they seem to expect the people they detain to automatically acquiesce to their every demand—whether the detention is legal or not. Criminal defense lawyers in Orange County know that when police officers in Orange County, including the Orange County Sheriff’s department as well as the city police agencies throughout the county, come across someone who questions their authority to detain them, the officers are likely to use force on the citizen. Then, to make things worse, the officers are likely to arrest the “uncooperative” citizen for violating section 148(a) of the California Penal Code—resisting, delaying or obstructing a peace officer in the performance of their duties. Often, this ends up being the only charge against the citizen who was not engaged in any other criminal activity.                               

Penal Code section 148(a) states that every person who willfully resists, delays, or obstructs any peace officer in the discharge of attempt to discharge a duty shall be punished by up to six months in the Orange County jail and a thousand dollar fine. The language of the statute is very broad and quite vague which can make it difficult for your Orange County criminal defense lawyer to defend the charge. However, court decisions interpreting the statute make it clear that in order to convict a person of this crime the cop must be engaged in performing a “lawful” duty. This means that if the cop detains someone illegally, the person detained cannot be found guilty of this offense. This rule is premised on the notion that because an officer has no duty to take illegal action he is not engaged in his “duties” if his conduct is unlawful.      

A police officer can detain someone to investigate any crime such as robbery, drug sales, DUI drugs, or domestic battery only if the person consents to the detention or if the officer has specific and articulable facts that the person being detained has been, is in the process of, or is about to be in involved in criminal activity and a reasonable officer who knew the same facts would have the same suspicion. Otherwise, the detention is illegal and should be challenged by your DUI Lawyer in Orange County.

If a cop makes a lawful detention for criminal threats, DUI with injury or any other crime and decides to arrest the detainee, the cop may use reasonable force to effectuate an arrest. Penal Code Section 692, 693. However, excessive force in effectuating the arrest makes the arrest unlawful. People v. White (1980) 101 Cal.App.3d 161. When a police officer uses excessive force, the arrestee has the right to use force in self-defense as long as the force is reasonable.

Police officers who use force on the people they arrest almost always request the District Attorney include the charge of resisting under section 148(a). That way, if the person is found guilty of or pleads guilty to the resisting charge, they will not be able to sue the cop civilly for violating their constitutional rights. A guilty plea to this charge bars such a suit. That’s why experienced Domestic Violence Lawyers in Orange County will counsel their clients NOT to plead to the charge if a civil suit for police misconduct is viable.    

If you are charged with any crime in Orange County and would like a free consultation with an experienced criminal defense lawyer in Orange County, call The Law Offices of EJ Stopyro at (949) 559-5500 today. The consultation is confidential. Or visit our website at www.EJEsquire.com. We have office locations at 1901 Newport Blvd., Suite 350, Costa Mesa, CA, 92663 and at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.
 

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