Resisting Arrest Complaint, Charge or Summons
When individuals find themselves in the unfortunate circumstance of being arrested, the natural reaction is to question the arrest, pull away and/or to physically retreat or resist. The reality is, however, that these actions can be construed as an independent criminal offense—resisting arrest. If you or a loved one has been the subject of an arrest or has received a criminal complaint, ticket or summons for resisting arrest, our New Jersey criminal defense law firm, the Law Offices of Jonathan F. Marshall, can assist you. Our staff of attorneys has years of experience defending criminal charges throughout New Jersey including Union County, Middlesex County, Monmouth County, Ocean County, Mercer County, Burlington County, Somerset County, Essex County, Hudson County, Bergen County, Passaic County and Morris County. Our criminal lawyers are prepared to answer your questions and to prepare a comprehensive defense plan to your resisting arrest charge. An attorney from our office is available immediately and an initial consultation with a lawyer is always without charge. The following information regarding the New Jersey resisting arrest law has been provided for your assistance.
New Jersey Resisting Arrest Law
The Criminal Code of NJ contains various offenses intended to address intentional interference with police officers. The most frequently cited of these offenses is the charge of resisting arrest under N.J.S.A. 2C:29-2. This law provides, in pertinent part, as follows:
2C:29-2. Resisting Arrest; Eluding Officer.
a. (1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:
(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.
When you get arrested, the only thing you are legally allowed to do is to let the arrest process run its course. The Sixth Amendment to the United States Constitution prohibits prolonged detention of defendants who have not been convicted. This means that your case must quickly progress to the setting of a bail amount, the scheduling of arraignment, or the dismissal of the case against you. You will have a chance to speak to a lawyer long before any of this happens unless the police quickly decide to let you go.
Remember that being under arrest does not mean that you have been convicted of a crime. It does not even mean that you have formally received criminal charges. Some arrests end almost as quickly as they begin. While you are under arrest, police cannot force you to confess to a crime or to say anything at all. When arresting a defendant, the police must recite the Miranda warnings, notifying the defendant of his or her rights, including the right to remain silent, the right to have an attorney present during questioning, and the right to representation, free of charge, by a court-appointed attorney if the defendant cannot afford to pay for legal services.
Explanation of the NJ Resisting Arrest Law
As a starting point, it should be noted that the charge of resisting arrest typically arises in New Jersey as a disorderly persons offense. A disorderly persons offense is a misdemeanor charge which is customarily litigated in municipal court and involves punishment of up to six (6) months in jail. When an individual is resisting by fleeing a police officer, he may be charged with a fourth-degree crime. A fourth-degree offense is an indictable felony charge which is litigated in New Jersey Superior Court, following grand jury indictment, and carries up to eighteen (18) months in jail. A third-degree offense for resisting arrest may be filed where physical force or threats of physical force are made against a police officer. A third-degree offense carries up to five (5) years in jail and is also a felony. A knowledgeable defense lawyer, such as those at our law office, can prove invaluable in mitigating the penalty exposure and/or defeating a resisting arrest complaint or indictment.
In order to prove a resisting arrest offense, the prosecution is required to establish certain elements which change slightly as the grade of offense becomes more serious. In this regard, the state must establish the following to prove a disorderly persons offense of resisting arrest: (1) a police officer attempted to make an arrest; (2) the accused attempted to or actually prevented his or her arrest; (3) the police officer was acting under color of law and announced his intention to arrest; and (4) the accused’s conduct to prevent his arrest was intentional. The case of State v. Stampone, 341 N.J.Super. 247 (App.Div.2001) provides a good illustration of the practical application of these elements. When the resisting arrest is escalated to a fourth-degree resisting arrest charge, the additional element of flight must be established for an indictment to stand. A resisting arrest charge can be enhanced further to a third-degree offense and, in this instance, the state must prove either that the accused used or threatened to use physical force or violence against the police or, alternatively, created a substantial risk of physical injury to the police. Our criminal defense attorneys are skilled in targeting the weaknesses in a resisting arrest charge and will make sure that the prosecution proves each and every element of the offense.
The fact that an arrest was unlawful or illegal does not necessarily negate a charge of resisting arrest. The rationale for this rule is the fact that the law would rather discourage a potential escalation in violence by establishing a public policy that the proper forum for fighting an unlawful arrest is through the courts rather than self help. It must be kept in mind, nonetheless, that a resisting arrest charge cannot stand unless the police officer had color of authority to make the arrest and announced his intention to arrest. The case of State v. Kane, 303 N.J.Super. 167, 182 (App.Div.1997) explains this dynamic in more detail.
A review of the New Jersey Model Jury Charge for resisting arrest is also informative in understanding the law on this subject.
Possible Defenses to Charges of Resisting Arrest
In order for charges of resisting arrest to apply, the defendant must have known that he or she was under arrest. You may be able to argue that you did not know that you were being arrested, so you thought that you were within your rights to try to leave. This may be the case if the arrest took place in a noisy environment such as a nightclub or concert. It might also be the case if you were so distracted by fear of other immediate threats that you did not notice that you were under arrest. If you behaved belligerently toward an officer but did not know that you were under arrest, you might be able to argue that your actions constituted disorderly conduct but not resisting arrest.
Individuals charged or indicted for resisting arrest in New Jersey are encouraged to contact the criminal lawyers at our NJ law firm, the Law Offices of Jonathan F. Marshall. Our defense lawyers are prepared to aggressively defend your New Jersey resisting arrest indictment, complaint, ticket or summons. A defense attorney knowledgeable in New Jersey law is ready to assist you. Please do not hesitate to take advantage of the opportunity for a free initial consultation with an experienced criminal lawyer from our law office.
