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RESISTING ARREST

Resisting a public officer is a common criminal charge in Las Vegas. Every year, thousands of locals and out-of-state visitors alike find themselves charged with this offense. This article explains the law and what you can expect if you or someone you know has been charged with this crime. Let's start with the definition.

RESISTING: THE LAW

NRS 199.280 is the state law that defines the charge of resisting arrest. Technically this offense is called "resisting a public officer." This law says a person is guilty of resisting a public officer if he "resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty." In my opinion, that is a very poorly written definition. Why? Several reasons. The next section explains my opinion about how this law is written, but if you're a practical person, you can skip this and jump to the section below sub-titled "A Real Definition."

CRITICISM OF NEVADA'S RESISTING LAW

Notice that NRS 199.280 defines resisting a public officer in three ways: (1) resists; (2) delays; or (3) obstructs. Each of these attempts to define this crime has its own issues.

The first "definition" just uses the word "resists" to define "resisting a public officer," which makes this a useless circular definition. If you don't know what that is, here is an example. Imagine if I tell you that I am wearing an indigo waistcoat and you ask me what that is. I could answer "An indigo waistcoat is a purple vest." Or I could say, "An indigo waistcoat is a waistcoat that is indigo." That second definition is circular. And a circular definition is useless because it doesn't actually define a term at all. So going back to the definition of resisting a public officer, the law says that a person is guilty of resisting a police officer if he resists a police officer. The law doesn't actually tell you any new or useful information. It doesn't tell you what types of actions might (or might not) count as resisting an officer.

The second "definition" says someone resists a public officer by "delay[ing]" a public officer. You may know the old saying, "justice delayed is justice denied." Well, according to Nevada law, an officer delayed is an officer resisted. But this definition doesn't add much. It's just another general term that is undefined and is more or less synonymous with resisting.

The third definition says a person resists an officer by "obstruct[ing]" the officer. This has the same problems as the other two definitions, but it has the added problem of also being completely redundant with the crime of obstruction of a police officer, which is supposedly a separate crime defined by another law, NRS 197.190.

Okay, so what is the real definition of resisting a public officer? Read on.

RESISTING: A REAL DEFINITION

If I had to write out a definition of this criminal charge as it is actually charged in Las Vegas, I would say this: Resisting a public officer is when a person being arrested intentionally makes any physical movement that attempts to hinder the arresting officer in even the slightest way.

To put it in a slightly different way, resisting a public officer is what you're charged with when you make a cop mad by doing some minor physical thing when he's arresting you. Common examples: (1) The cop tells you to put your hands behind your back and you lock your hands in front; (2) The cop tells you to sit down on the curb and you stand up; (3) The cop tries to put you in the back of the police car and you shift your weight to prevent him from controlling you.

So how is this different than obstruction? The definitions technically overlap, but these two offenses are enforced differently in Las Vegas. As a rule of thumb, obstruction is generally going to be charged when you try to talk to a cop when he's arresting or detaining someone else. By contrast, resisting is when you do something physical to avoid your own arrest. What is similar between these 2 offenses is that they are both easy for the cop to exaggerate or make up completely simply because he doesn't like you.

PENALTIES

Resisting arrest is a misdemeanor. It's a petty offense. But if you're convicted of resisting arrest you face potential jail time and fines. The maximum fine is $1,000 and the maximum jail sentence is 6 months. Again, these are maximum penalties, not typical outcomes.

So what is a typical outcome? Well, because resisting arrest is often charged along with another crime, the resisting charge can in many instances be dismissed pursuant to plea negotiations. For example, if you're charged with criminal trespass and resisting arrest, a plea deal that you might get offered would be to plead no contest to the trespass and the prosecutor would dismiss the resisting arrest charge. Of course, a better negotiation would include dismissing both charges, but that's beside the point.

FELONY RESISTING ARREST

As I explained above, resisting arrest is usually a misdemeanor charge, but it can be enhanced to a serious felony if you grab an officer's gun or his other weapons when he's arresting you. According to NRS 199.280(1), using a firearm to resist arrest is a category C felony, which carries a potential prison sentence of 1 to 5 years. According to NRS 199.280(2), using any other non-firearm "dangerous weapon" to resist arrest is a D felony with a potential prison sentence of 1 to 4 years. Both of these are "probationable" felonies, meaning you don't have to get sentenced to prison if you're convicted, so long as the judge agrees to give you a chance at probation.

Another way you can get charged with a felony for resisting an officer is by resisting enough that you get charged with battery on a police officer and you cause substantial bodily harm. Battery is hitting a person. Substantial bodily harm is a lasting injury, like a wound that results in a broken bone or a scar. Battery on a police officer causing substantial bodily harm is a B felony punishable by 1 to 6 years in prison. Without substantial bodily harm, battery on a police officer is a gross misdemeanor punishable by up to a year in county jail.

You may be wondering what distinguishes between a person who gets charged with simple misdemeanor resisting arrest and battery on an officer. Technically, if you don't intentionally uses force against the cop's body you're not committing a battery (e.g., if you lock your hands you're only intentionally using force on yourself). But in practical terms, you'll get charged with battery on a police officer, the more serious charge, in any physical resisting situation if the cop dislikes you enough.

DEFENDING RESISTING CHARGES

My wife and I have helped many people charged with resisting arrest in Las Vegas courts. There are technical defenses for this charge, like arguing that the arrest was unlawful. Then there is the obvious but difficult-to-prove defense that the cop is simply lying. Most of the time, it is easier to negotiate away a charge like this than to fight it at trial. If you want to make a principled stand and take your resisting arrest charge to trial, we'll be happy to represent you and give you your day in court. But we can also help you if you'd rather make the charge go away as quickly and cheaply as possible, without going to court and risking more serous penalties. The choice is yours.

If you have been charged with resisting arrest in Las Vegas, call, text, or email me now and tell me about your case. I'll quickly assess your case free of charge and tell you what you can expect. Don't hesitate. Consultations are free and our fees are reasonable.

By Michael Pandullo


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