How to Fight Charges for Resisting Arrest in Virginia

In Virginia, even minor actions can count as resisting arrest. Further, resisting arrest is a serious crime, punishable by both fines and jail time.

Last updated on July 18th, 2019

If you make physical contact with a police officer during the course of an arrest, the officer may charge you with resisting arrest.

In this article, we’ll go over the basics of how Virginia defines “resisting arrest,” as well as outline some tips for fighting resisting arrest charges.

In addition, we’ll also go over some recent changes in Virginia’s laws surrounding resisting arrest.

How Does Virginia Define Resisting Arrest?

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Thankfully, the Virginia Code makes this question relatively easy to answer.

In fact, obstructing justice, resisting arrest, and fleeing from a police officer are all covered by the same law.

Under this section, each of the following acts are made illegal:

  • Knowingly preventing a law-enforcement officer (or similar government official) from performing their official duties.
  • Attempting to threaten, intimidate, or impede any law-enforcement officer who is engaged in official duties.
  • Knowingly and willfully making materially false statements to a law-enforcement officer who is conducting an investigation of a crime by another person.
  • Intentionally preventing, or trying to prevent, a law-enforcement officer from lawfully arresting you, regardless of whether or not they have a warrant.

In regards to the final point, the Code specifically notes that:

“For the purposes of this subsection, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.”

Virginia Code § 18.2-460(E)

Essentially, this code section criminalizes any action which would impede a police officer from performing their lawful duties.

Is resisting arrest a misdemeanor or a felony?

In the vast majority of cases, resisting arrest is a Class 1 misdemeanor in Virginia. This is an offense punishable by a fine of up to $2,500 as well as up to 12 months in jail.

For this reason, you should always check the specific crime you’re being charged with before planning your defense for resisting arrest.

While running from the police is “only” a Class 1 misdemeanor, striking an officer during an arrest is an entirely separate and much more serious charge which can result in much harsher penalties and the permanent loss of certain rights.

Specifically, assaulting a police officer is a Class 6 felony with a mandatory minimum of 6 months in jail.

What is Assault on a Police Officer?

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Some individuals who are charged with resisting arrest may also find themselves charged with assaulting a police officer.

As noted in the Virginia Code:

“If any person commits an assault or an assault and battery against [a police officer, firefighter, judge, etc…], engaged in the performance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony.”

Virginia Code § 18.2-57

What’s the difference between resisting arrest and assaulting a police officer?

In general, the line between resisting arrest and assaulting a police officer is whether an act could cause harm.

For example, fleeing from the police as they are trying to arrest you, without hitting or pushing the officer, is resisting arrest, not assault.

However, if you push down a police officer as you flee, you may end up with charges for both.

What are the penalties for assaulting a police officer in Virginia?

As noted above, assault on a law enforcement officer is a Class 6 felony in Virginia. It has the same penalty as misdemeanor resisting arrest, with two notable exceptions:

  • You will always receive at least six months of jail time.
  • You will have a felony conviction on your record. This will prevent you from exercising certain rights unless you petition to have them restored. In addition, you will not be able to work certain jobs.

Needless to say, assaulting a law enforcement officer is an even more serious charge than resisting arrest.

For this reason, you should always consult with a criminal defense attorney as soon as possible after your arrest.

Fighting Charges for Resisting Arrest and Obstruction of Justice

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As we’ve outlined above, obstructing justice and resisting arrest are serious crimes in Virginia. That goes double for assaulting a police officer.

Fortunately, there are a number of possible defenses available to you if you’ve been charged with resisting arrest in Virginia.

Resisting an Unlawful Arrest

First off, Virginia law only criminalizes the act of resisting a lawful arrest.

In other words, you may be able to fight the charges against you if you can prove that the officer was conducting an unlawful arrest.

However, this is easier said than done.

An unlawful arrest isn’t just an arrest for a crime you didn’t commit. Instead, it refers to an arrest performed in the absence of “probable cause.”

For this reason, if the Commonwealth finds you not guilty of the original crime, but rules that the officer had a legitimate reason to arrest you, you can still be charged with resisting arrest.

Furthermore, you can still be charged with assaulting a police officer in the event of an unlawful arrest.

However, whether you will be convicted or not will often rest upon whether or not the court decides your use of force was justified in the moment.

All of which is to say that, although you may have a legal right to do so, resisting arrest is virtually always a bad idea.

Even if you believe your arrest was unlawful, the best course of action is to voice your disagreement against the arrest without resisting the officer.

Not Knowing You Were Being Arrested

You can only be convicted of resisting arrest if you knew (or should have known) that you were being arrested by a legitimate law enforcement officer.

The main scenario that this defense applies to is in cases where the officer in question was out of uniform and failed to identify themselves.

Similarly, if you couldn’t see the police officer for some reason, and they didn’t identify themselves, you may not have known you were resisting a lawful arrest.

Note that this also applies to the charge of assault against a police officer.

If you had no way of knowing they were a police officer, you may be able to argue that your charges should be downgraded to misdemeanor assault, or even have them dropped entirely.

Conclusion

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As mentioned above, resisting arrest is not a trivial crime in Virginia.

If you’ve been charged with resisting arrest or assaulting a police officer, you should contact a Virginia criminal defense attorney immediately.

Speaking with an attorney early can give you the best possible chance of having your charges dropped by working out a strong defense ahead of time.

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