It is natural to feel frustrated or even angry when you or a loved one is being arrested or detained by law enforcement.  Obviously, no one likes to be arrested.  Some people will try to argue with or walk away or even pull away from law enforcement in order to avoid arrest.  Still others may simply “tense up” at the moment of arrest.  Unfortunately, this sometimes results in the officer adding a separate charge of Resisting Arrest.

The charge of Resisting or Obstructing Without Violence is a first-degree (1st) misdemeanor punishable by up to one (1) year in jail or twelve (12) months probation and a $1000 fine, or a combination thereof.  It is important to note that this charge is different than the felony offense of Resisting with Violence, which carries separate, more severe consequences.

The good news is there are numerous defenses to this charge.  One example of a possible defense was discussed in a relatively recent case that suggests that a person may avoid a conviction for resisting if the officer was not engaged in the execution of a legal duty at the time.  M.W. v. State, 51 So.3d 1220, 1221 (Fla. 2d DCA 2011).  In M.W., a member of the school’s administrative staff was called to remove the defendant from class because he was being disruptive.  Id.  When the staff member attempted to escort the defendant to the student affairs office, he refused and shouted profanities at the staff member.  Id.  He then slammed his books down and advanced towards the staff member and threatened him.  Id.  Eventually, the school resource officer responded and was informed as to what had occurred and attempted to arrest the defendant for assault, at which point he resisted or obstructed an arrest.  Id.  The circuit court found the defendant not guilty of assault, but found him delinquent of obstructing without violence under Florida Statute section 784.011.  Id at 1222.  On appeal, the court reversed the order finding the defendant delinquent and remanded for entry of an order of dismissal.  According to M.W., the “crime of obstructing or opposing an officer without violence requires a showing that the officer was engaged in the lawful execution of any legal duty.”  Id. (quoting C.H.C. v. State, 988 So.2d 1145, 1146 (Fla. 2d DCA 2008)).  And when the duty being performed by the officer is an arrest, the lawfulness of the arrest is an essential element of the offense.  Id.; Guitterrez v. State, 837 So. 2d 1095, 1096 (Fla. 4th DCA 2003); V.L v. State, 790 So 2d 1140, 1143 (Fla. 5th DCA 2001).  The court held that the warrantless arrest of the defendant for the misdemeanor offense of assault was lawful only if that offense was committed in the officer’s presence.  Id. at 1222.  And that since the defendant’s “threats against [the staff member] occurred outside [the] Officer[‘s] presence, the arrest was unlawful and [the] officer. . . was not engaged in the lawful execution of a legal duty when [the defendant] obstructed or opposed the arrest.”  Id.

This information does not constitute legal advice and should by no means be interpreted as encouraging individuals to resist law enforcement.  However, if you have been accused of Resisting or Obstructing Without Violence and would like to contact a Naples Criminal Defense Attorney, please call 239-775-1004.  Consultations are absolutely free and completely confidential.  Our office is situated in Naples, Florida, we proudly represent clients throughout Collier and Lee Counties and their surrounding areas, including, but not limited to, Naples, Fort Myers, Bonita Springs, Estero, Cape Coral, Golden Gate, Immokalee, Lehigh, and Marco Island.  The Law Office of Verderamo & Escobar is located at 2668 Airport Pulling Rd S Naples, FL 34112.  For more information, call (239) 775-1004.


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