What You Must Know About Resisting Arrest Charge Tactics
What should you know about standalone resisting-arrest charges? A 'naked' Penal Code 148—filed alone, with no other charge—is remarkably easy to convict, explains San Jose attorney Stuart Kirchick, since jury instructions require no minimum time to obey an order. Historically overused and disproportionately against people of color, such charges have dropped sharply in Santa Clara County under a reform commitment.
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Answered by Stuart Kirchick · San Jose, CA
Highlights
— the DA's 2020 commitment to cut standalone resisting-arrest charges
— why the jury instructions make a PC 148 conviction so easy
— how even seconds of non-compliance can support the charge
— the wide field discretion an officer has to make the arrest
— the roughly 90% drop in these arrests, and why this case stands out
Frequently Asked Questions
What should you know about standalone resisting-arrest charges?
A 'naked' Penal Code 148—filed alone, with no other charge—is remarkably easy to convict, since jury instructions require no minimum time to obey an order.
Why is a PC 148 conviction so easy?
Because the jury instructions set a very low bar, and even seconds of non-compliance with an officer's order can support the charge.
How much discretion do officers have?
Wide field discretion to make the arrest, which is why these charges were historically overused.
Have these charges declined?
Yes—after a 2020 DA commitment to cut standalone resisting-arrest charges, they dropped roughly 90% in the county, making a case that still pushes the issue stand out.
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