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 Pagliara Law Group, can help.

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.

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.

Contact Our New Jersey Resisting Arrest Attorneys Today

There are obviously many pitfalls to simple assault charges which make it advantageous to obtain representation from a skilled defense attorney. Our attorneys have firsthand personal experience and our both book smart and street smart.  To discuss your case with a lawyer who is knowledgeable in this area and will answer all your questions, Call us

Our lawyers serve clients faced with a simple assault charge in the following Communities.

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