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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