Understanding Potential Defenses if You Have been Accused of Resisting Arrest in New Jersey

Being Arrested Can Be Frightening and Disorienting. In Such Situations, Instinctive Reactions Like Resisting or Running Can Lead to a Charge of Resisting Arrest.

Being placed under arrest can be a confusing and frightening experience, whether it is the first time or the sixth. Depending on the circumstances, the situation may be loud and chaotic. There may be a lot of people, perhaps even a lot of law enforcement officers, all saying different things at different volumes. You may not even be sure if they are speaking to you or someone else. When you feel a hand grip your arm or the cold steel of handcuffs press against your wrist, it is only natural that you may try to pull away, especially if you are innocent of the crime for which you are being arrested. However, this instinctive pulling away or other behaviors such as stepping away, running, or pushing the officer could all result in adding a charge of resisting arrest.

The Nuances of Resisting Arrest

Resisting arrest sounds like a simple charge, but it can actually be quite complex. Resisting arrest can be a disorderly persons offense (the same as a misdemeanor in other states) or an indictable crime (a felony in other states), depending on the conduct of the accused individual leading to the resisting arrest charge.

When it is a disorderly persons offense, the accused individual may have resisted arrest by pulling away from the officer, stepping back, refusing to place their hands where instructed by the officer, or verbally refusing to cooperate. Their actions, though viewed as resistant, are generally nonviolent, nonthreatening, and in some cases, may have been an instinctive reaction that they did not think about. Particularly if the individual is innocent of the crime for which they are being arrested, they may not have considered that what they are doing is considered resisting arrest.

As an indictable crime, resisting arrest can be a third- or fourth-degree crime. To be elevated to a fourth-degree indictable crime, the accused individual must have attempted to flee from the police. This means they tried to run away. For a third-degree indictable crime, the individual must have threatened the officer or other law enforcement with violence or created a substantial risk of physical injury to anyone in the area while resisting arrest.

Eluding arrest is a subset of resisting arrest. Eluding arrest occurs when the individual is in a motor vehicle and attempts to flee from the police. Eluding arrest is typically a third-degree indictable crime, but if the individual creates a risk of injury to the officer or others, it can be elevated to a second-degree indictable offense.

What Makes Resisting Arrest a Crime According to New Jersey Law

The prosecutor must prove three specific elements existed. The first element is that the arrested individual committed an unlawful act. This does not mean they must prove the individual committed the crime for which they were being arrested. In fact, an individual can be innocent of the crime for which they were arrested and still be convicted of resisting arrest. Instead, the unlawful act must be an act like force, physical violence, intimidation or interference during the arrest. If the individual attempts to flee when the officer approaches them, this may also be considered resisting arrest.

The second element they must prove is that the individual’s actions were taken with the intention of specifically preventing or obstructing the lawful arrest or another government function. Proving that the individual intended to prevent the arrest can be difficult. For example, an innocent individual stepping back from the officer may be an instinctive reaction without any intention behind it.

The third element that must be proven is that the individual’s actions resulted in the prevention or impairment of the lawful arrest or other government function. While it may be easier for the prosecutor to prove this element if the individual ran or was in a motor vehicle and drove away, it may be more challenging if the individual merely took a few steps away from the officer or refused to place their hands where the officer instructed.

How to Collect Proof to Fight Resisting Arrest Charges

Since 2021, New Jersey law enforcement has been required to wear body cameras. While these cameras may help prove that an individual did not resist arrest, this is not always the case. Technology failures, poor angles, bad lighting, and other things can make it difficult or impossible to tell what happened from the officer’s body camera. Therefore, individuals accused of resisting arrest will want to gather as much evidence as they can to prove that they did not resist.

This evidence might include witness statements from others who were present, cell phone video recorded by witnesses, or photographs taken by witnesses. Additionally, if the individual or their attorney plans to pursue a defense of self-defense, they will want to ensure the evidence includes testimony, videos, or photographs of the officer’s behavior that required the individual to defend themselves.

Legal Arguments Against Resisting Arrest in NJ

While each case is unique and could have its own unique defense, some common defenses are used most often to get resisting arrest charges dropped or reduced.

#1: You Were Arrested Unlawfully

The unlawful arrest defense may be the most commonly used defense. An arrest is unlawful if the officer does not clearly identify themselves as a law enforcement officer, does not inform the individual of their rights, does not have probable cause or a warrant, or otherwise makes an arrest that is not fair, just, and within the confines of the law.

An unlawful arrest defense can be particularly useful if the officer is not in uniform but is dressed in plain clothes, such as an undercover officer. The lack of uniform can make it difficult to identify an officer, and if the environment is loud or otherwise distracting, the individual may mistakenly believe the officer is trying to assault them rather than arrest them.

A warrant is self-explanatory: if a warrant has been issued for someone’s arrest, the police are authorized to arrest that individual. Probable cause means that the police officer reasonably believes that the individual is or did commit a crime or that the individual is going to commit a crime. The arrest may be unlawful if the officer does not have a warrant or probable cause. However, there is one exception to this, and that is being a material witness. If law enforcement has a reasonable belief that the individual witnessed a crime and may have vital information about the crime, they can arrest the person without a warrant or other probable cause.

#2 You Were Defending Yourself

Law enforcement officers can use reasonable force to complete an arrest. They cannot use excessive or unnecessary force. If the officer used excessive or unnecessary force, and the individual felt the need to defend themselves against that force, they may be able to defend their actions with a claim of self-defense.

Examples of self-defense might include the individual wrapping their arms around their head to protect against being punched or slapped, curling into a ball on the ground to avoid being kicked or punched in the abdomen, or using an arm to deflect a fist aimed at their face. A self-defense claim is more likely to work if there is evidence of the officer’s use of excessive or unnecessary force, such as photos, video, or witness testimony indicating the officer was using more force than required.

Self-defense also must be limited to fighting back to the point of defense. If the individual goes beyond defending themselves and is attempting to harm the officer, a self-defense argument may not be a viable defense. Because a self-defense argument can be intricate, it is best to discuss your case with a resisting arrest attorney to learn more about your defense options.

#3 You Didn’t Know You Were Being Arrested

In order for a resisting arrest charge to apply, the individual accused of resisting must have known they were being arrested. While it may seem as though someone being arrested would know they were being arrested, this is not always the case. If the individual is in a loud, crowded location such as a nightclub or concert, they might not be able to hear the officer tell them they are under arrest.

This may also apply if the individual is in fear of other immediate threats. For example, if the individual is running away from someone who tried to mug them or assault them and an officer is now chasing them, the individual may not realize that their original attacker is not the officer currently chasing them. Therefore, they are not resisting arrest but instead attempting to flee another threat.

Finally, if the individual behaved belligerently without realizing they were under arrest, their attorney may be able to either arrange a plea agreement or argue in court that the individual’s behavior was disorderly conduct rather than resisting arrest. The individual may still be convicted of disorderly conduct, but this is a lesser crime with much lighter penalties.

#4 The Circumstances Provide Other Defense Options

There may also be unique defense options available. For example, if the individual is charged with eluding police because they were in a motor vehicle and drove off, but they were driving someone to the hospital for a medical emergency, an experienced attorney may be able to argue that they were not resisting arrest but attempting to save a life. If the individual had a medical emergency during the arrest, such as a seizure or fainting due to low blood sugar, an attorney may be able to show that they were not resisting arrest.

Another potential defense may be challenging the officer’s version of events. If an attorney can show inconsistencies in the officer’s version of events or inaccuracies between what the officer says and what the body camera or dashcam video shows, this may raise reasonable doubt as to whether the individual resisted arrest.

Any defense requires a thorough understanding of the laws regarding resisting and eluding arrest. While there is no law that requires individuals to hire an attorney to represent them, we do strongly recommend it so people do not have to try to read and understand these laws themselves quickly.

Don’t Have a Defense? You May be Eligible for a Diversionary Program

New Jersey judges do not necessarily want to convict people, particularly when they are first-time offenders. For this reason, New Jersey has created some diversionary options that can allow some individuals to not only avoid the penalties associated with the crime they are charged with but also potentially have the charge completely removed from their record.

One such option is Pre-Trial Intervention. Typically, this cannot be done for a disorderly persons offense, but may apply if the resisting arrest charge is a third- or fourth-degree indictable crime. Pre-trial interventions may require the individual to plead guilty to the charge in order to participate. These programs can take up to three years to complete and may include a combination of counseling, drug testing, community service, and other requirements. If the program is not completed, any guilty plea will stand, and the individual will be sentenced accordingly. These and other diversionary programs can be difficult to get into.

Already Convicted of Resisting Arrest? You May be Eligible for an Expungement

Another option is expungement. Not every crime is eligible for expungement, but resisting arrest can be. Specific requirements must be met to be eligible for expungement, including the number of crimes on the individual’s record and the kind of crimes they are. But if the individual is eligible, expunging their record can remove all traces of the resisting arrest conviction from the general public.

A third option is New Jersey’s Clean Slate Law. Individuals with no convictions in the past 10 years, who have fulfilled all the obligations of their previous convictions, can have their record cleared completely of all convictions. This does not apply if the individual has a conviction for a non-expungable crime such as murder, sexual assault, or robbery. Individuals must also meet other eligibility criteria. When they do meet the requirements, this can wipe their record clean of all convictions.

Contact Our South Jersey Defense Lawyers to Explore Your Options to Get Resisting Arrest Charges Dismissed

Being charged with resisting arrest can be complicated, confusing, and scary, especially if you have never been arrested before. Before speaking to law enforcement, even if you are innocent, we strongly suggest speaking with a defense attorney. Our criminal defense team at Bronzino Law Firm can assist you in reviewing your case and determining the right legal options for your specific circumstances.  Contact our experienced criminal defense lawyers today to discuss your resisting arrest charges in Point Pleasant, Beach Haven, Sea Bright, Manasquan, Hazlet, Bay Head, Belmar, Barnegat, and other communities at the Jersey Shore. Call us at (732) 812-3102 to schedule a consultation, or fill out our online contact form to get back to you.