Resisting arrest is a complex topic in criminal law. There are rare circumstances when resisting an arrest is justifiable. Only officers granted the power to arrest citizens can make lawful arrests. Therefore, any arrests made by any person who is not a law enforcement officer will likely be an unlawful arrest.
However, there are legal nuances in these unique situations which is why, if you think your arrest is unlawful, it is better to have your lawyer fight the charges than you fight the arresting officer. Keep reading to learn more, then reach out to a skilled Fairfax criminal defense attorney with Select Law Partners PLLC.
How do I determine if an arrest is lawful?
It can be difficult to determine whether an arrest is lawful so you should not resist an arrest even if you believe you are on strong legal footing. You have a legal right to resist if you reasonably believe that the person arresting you is not a law enforcement officer. If you know the person arresting you is a law enforcement officer you may ask the law enforcement officer why you are being arrested. Officers may not answer, but all Virginia law enforcement officers are required to wear body-worn cameras and the lack of an answer might be useful for your attorney’s arguments. A law enforcement officer does not have to read you your Miranda rights to arrest you.
What are some examples of legal authority to arrest?
One of the most ambiguous areas concerning unlawful arrests is the subjective perception of the law enforcement officer who is making the arrest. A law enforcement officer needs reasonable suspicion to make a traffic stop and question the driver and passengers in a vehicle. However, a law enforcement officer needs probable cause to arrest if the officer does not have a valid arrest warrant.
What is probable cause?
Probable cause is a term that can be confusing to people who are unfamiliar with legal terminology. Essentially, probable cause is the officer’s subjective belief that a specific person either has committed or will commit a crime. It is a low standard for the officer to meet, and most law officers can justify arrests by claiming they had probable cause to make a custodial arrest. Law enforcement officers can be completely mistaken in their beliefs about a situation, but their arrest is still legal if they believe they had probable cause to arrest at the time.
It is possible that the law enforcement officer did not have probable cause to arrest you. Whether an arrest is made on the side of the road or in your own home, there is nuanced case law around what constitutes probable cause in various situations. Officers can often make a mistake. If this is the case, a criminal defense attorney can represent your interests and fight for your liberty. Do not be afraid to assert your legal rights and stand up for your right to be free from unlawful arrest. Law enforcement officers are not immune from scrutiny, and you can retain an attorney to help you with every aspect of your criminal case.
What happens if you resist a lawful arrest?
You can be charged with resisting arrest or “obstruction of justice” under Virginia Code 18.2-460. Depending on the circumstances of the arrest, a resisting arrest charge typically constitutes a misdemeanor offense. A misdemeanor is an offense that is punishable by less than a year of incarceration.
If you physically resist an arrest and incidentally push, hit, kick, or bump a law enforcement officer you may be charged with felony assault on a law enforcement officer under Virginia Code 18.2-57. Felonies are those offenses that are punishable by more than a year of incarceration. For assault on a law enforcement officer, the felony charge carries a mandatory sentence of 6 months in jail with a maximum possible 5 years in prison. Additionally, a felony conviction carries countless collateral consequences that include loss of rights, and restrictions from certain careers, and it can even impact where you are allowed to live.
The safest course of action is to follow commands peacefully
Since probable cause is subjective, it is easy to feel like an arrest is unlawful if you don’t agree with the officer’s view of a situation. Plenty of people have caught felony assault and battery charges and gone to jail simply because they didn’t agree with an arrest on a matter that likely would not have resulted in any jail time.
Don’t make that mistake. Instead, follow any commands of a law enforcement officer. Ask the officer why you are being arrested. Do not make any statements about any accusations against you. State for their body-worn cameras that you do not consent to any of their searches and that you would like to speak to an attorney. By taking those actions, and not taking matters into your own hands, you may provide your attorney with the tools necessary to fight a charge against you.
Contact Select Law Partners PLLC today
Experiencing an unlawful arrest is a humiliating and degrading experience. If you are facing criminal charges and want to learn more about your right to resist an unlawful arrest, or defenses to the charge, reach out to Select Law Partners PLLC today. Call us today at (855) 541-4867 to learn more about how we can help you with your legal matters.
