The charge commonly, known as "Resisting Arrest" includes conduct other than resisting arrest. Let's look at the actual statute:
"148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
So the prohibited conduct can include mouthing off to a cop. It can consist of disobeying a command made by a police officer, or obeying it, but not fast enough. If you question how the police are behaving, you may find yourself under arrest. Anything that delays or obstructs a police officer can form the basis of this charge. Although this law empowers police to arrest people engaging in truly objectionable behavior, it also lends itself to frightening abuse.
Fortunately, a limitation to its force is the fact that the officer must be engaged in the discharge of his/her duty. This is often the key to analyzing this kind of case. The accused cannot be convicted of this charge if the officer being delayed is engaged in:
… because the officer has no duty to engage in such conduct.
Therefore, these cases can make for the most interesting kind of misdemeanor to defend. If there is any officer use of force, it must be scrutinized carefully to determine if it was justified because interfering with the excessive use of force is not a crime. Be careful though. If the jury believes that the officer's use of force was proper, or believes that there was no use of force at all, then the interference will result in a conviction.
If the defendant is accused of interfering with a search or an arrest, the defense lawyer must determine whether the search or the arrest was legal. This is a question of Constitutional Law. A search without a warrant is easier to challenge than a search pursuant to a search warrant. If there was no search warrant, and the defense files a motion challenging the constitutionality of the search, the prosecution has the burden of justifying the search.
But what if a search team bursts into a house unexpectedly to serve a search warrant, and there you are, perhaps as a visitor, and in the confusion, you fail to obey one of the invading cops fast enough? You could be find yourself charged with delaying the investigation. If your lawyer successfully challenges the constitutionality of the search, you win.
But he has a real uphill battle, because the search pursuant to a search warrant is presumed to be constitutional, since a magistrate (judge) reviewed a declaration of probable cause before issuing the search warrant. But this presumption is rebuttable. Your lawyer should obtain a copy of the search warrant (a battle in and of itself sometimes) and look at how the search was conducted, scrutinizing the entire situation for irregularities. This is like looking for a needle in a haystack. But that's just what Mr. Varga found in the last such case he handled. He pointed out sufficient discrepancies to cause the judge to grant his motion challenging the search pursuant to a warrant. The case was dismissed then and there. His client walked out of the courtroom a free man.
In another case Mr. Varga handled involving resisting arrest, he and his investigator canvassed the neighborhood where the arrest occurred and found a witness who, while thinking that she was sticking up for the police, contradicted the alleged facts stated in their report. That case was also dismissed.
If you have any further questions, please contact Mr. Varga.