What constitutes resisting arrest (PC 148)?

• Police Officers have training on the use of force and are allowed to use various methods, techniques, and technologies, to use to prevent any officer safety issues.

  When someone refuses instructions, obstructs the officer, delays, or physically resists, that can be a violation of Penal Code section PC 148.

  For police officers, typical training in the use of force includes pepper spray, batons, ground grappling, handcuffing techniques, straight batons, handguns, assault rifles, sniper rifles, officer survival techniques, survival, and advanced SWAT techniques, among others.

  There is a variety, or continuum, of force, that officers are allowed to use, depending on the threat.  The guide is what a reasonable and prudent officer would do in the same situation.  The question each officer has to ask themselves, and in turn justify is that they felt that their use of force was necessary to protect themselves or someone else from what they thought was imminent harm.

  When it comes to Orange County criminal cases, police officers in OC are taught that an officer has the authority to ask a potential suspect in a DUI arrest in Orange County or another similar situation to do almost anything.  A US Supreme Court case has held that traffic stops are fairly dangerous due the unknown – what the driver has in the vehicle, and what may happen with nearby traffic, or passengers.  It is considered reasonable for many officers to request anyone in the vehicle to exit if the officer feels that would be safer for them.

  So when a police officer asks someone to exit the vehicle and they say “no”, or don’t respond, that’s when the use of force starts being considered.  Every case is different, however — what the facts are, the timing and the overall situation or circumstances are extremely important.

  If a DUI suspect refused to get out of the car, any reasonable and prudent officer would extract her physically rather than let her get the car in gear, or move to the back seat, or find a weapon, etc.  There is no need for commands.  Just reach in and put the driver in a hold and move her.

  Police are always thinking about officer safety first.  It is drilled into them by their law enforcement instructors and specialized driving instructors in POST training.

  Officers state that rarely does anyone stop or pull over where the police want that person to.  So they often have to work with the cards dealt, but they could ask a driver to move to a closer, safer location.

  There are officer safety reasons to request a driver in a DUI case to exit, including the following:

• separating them from other occupants to question them
• preventing them from further operation of the vehicle
• Determining if you think that they are impaired
• Moving them to your patrol car because that is a safer place for you to talk to them than while you’re standing beside them in the location you described
• Moving them so that you can hear better
• Moving them so that they can’t access anything in their vehicle\
• Excessive nervousness, checking traffic and sizing up whether to take off or not
• Rude, interrupting, or verbally combative passengers in their car

  If a driver is handcuffed it is arguable that pepper spraying her may be excessive.  But again, facts matter. What was she doing that precipitated the pepper spray?  Was she continuing to struggle, kick, squirm, spit, resist?  An officer who sprayed her would probably be held to be a reasonable use of force.  Pepper spray is low on the use of force continuum.  It does not injure people.  It does incapacitate them and deters further injury to both the officers, the prisoner, and to potentially other people standing or driving by.  Usually, officers are taught to command suspects to stop their action before spraying them.  Did they say “stop” whatever she was doing other than standing and complying?

  All of those are issues in a Penal Code section 148, resisting arrest, criminal case.  Contact us if you need the help of an Orange County Criminal Attorney.