In order for the state's attorney to prove the crime of resisting arrest he or she must prove a few separate elements. First the state must prove that there was an arrest of the defendant, and this arrest was lawful. A lawyer will typically argue that the police officer did not conduct a legal arrest, and the trial or motion to dismiss may rest on this element. Many resisting arrest cases have been won because the state could not prove that the officer made a lawful arrest. The state must also prove that the defendant refused to submit to the arrest. This is the element where the officer’s testimony is basically the only evidence. In a resisting case, an officer will usually say that the defendant kicked or pushed him or her in the course of being arrested, but usually what really happened is that the officer was hurting the defendant in some way and as a natural reaction, the defendant made a protective movement. We often hear about a police officer using excessive force such as a knee in the back or extremely tight handcuffs being the act that caused the defendant to respond.
The state’s attorney must also prove that the police officer was in a lawful execution of his or her duties. In other words, the police officer has to have been working in a law enforcement capacity. This element is similar to the lawful arrest element, but requires that the officer not have broken any laws or violated any of the defendant’s constitutional rights. Finally, the state must prove that the police officer had identified him or herself as an officer before the act of resisting arrest was alleged to have happened. This element essentially prevents an undercover or off duty officer from claiming that that the defendant resisted arrest when in fact the defendant did not even know an actual police officer was making the arrest.
Cops have different reputations in the various jurisdictions throughout the state, and it is important to retain an attorney who understands these differences. Defending a resisting charge in Baltimore City is much different that defending the same charge in Carroll County for example, or in the Eastern Shore counties such as Worchester or Wicomico. We have defended cases in almost every jurisdiction in Maryland, and understand the different tactics that must be used. Do not gamble with probation, jail time, or even a conviction. Contact The Herbst Firm today.