Resisting Arrest in Arizona: ARS 13-2508 click for a free consultation

If you are being arrested in Arizona, you already face at least one charge (the charge you are being arrested for). Depending on how you respond to the arresting officer, you might find yourself faced with another misdemeanor or even an additional felony charge for resisting arrest under the state’s resisting arrest law, as set forth by ARS 13-2508.

In this post, we define what resisting arrest means in Arizona, the types of resisting arrest you can be charged with under Arizona law, the penalties for resisting arrest, and some possible defenses if you are charged with this crime.

If you have been charged with resisting arrest in Arizona, call AZ Defenders at (480) 456-6400 or use our contact form to speak with an experienced Arizona resisting arrest attorney.

What is Considered Resisting Arrest in Arizona?

ARS 13-2508 defines resisting arrest as intentionally preventing, or attempting to prevent, a person reasonably known to be a peace officer acting under color of such peace officer’s official authority from effecting an arrest. There are three requirements that the state must prove to convict you under this law:

1. You must intend to resist being arrested or intend to prevent a peace officer from arresting you.
2. You must reasonably know that the person trying to arrest you is a peace officer.
3. The peace officer must be acting in their official capacity as a peace officer in arresting you.

The law recognizes three ways that you can resist arrest:

• Using, or threatening to use, physical force against the peace officer or another
• Engaging in any other behavior that creates a substantial risk of injury to the peace officer or another
• Engaging in what is called “passive resistance” to the arrest

Examples of Resisting Arrest

Some of the most common ways that people find themselves charged with resisting arrest in Arizona include:

• Pulling away from the officer
• Attempting to fight with the officer or adopting a fighting stance
• Stiffening your limbs to resist being handcuffed
• Refusing to exit your vehicle during a traffic stop when informed that you are being arrested
• Making threats against the officer or others

What is a Substantial Risk of Causing Physical Injury?

You do not need to intend to harm the arresting officer to create a substantial risk of physical injury. You only need to create conditions in which a substantial risk of injury to the officer or someone else arises.

For example, if a police officer attempts to arrest you, and you do not physically resist but call on a nearby crowd to intervene on your behalf, and someone from that crowd attempts to interfere with the arrest by threatening physical force against the officer, this could be construed as creating a substantial risk of physical injury.

Or, if you attempt to run away from the officer and run into traffic on a street, causing the officer to pursue you there, this could cause a substantial risk of physical injury.

Does the Arrest Have to Be Valid to be Charged With Resisting Arrest?

Sometimes, mistakenly or otherwise, a police officer may attempt to arrest you without probable cause. But this does not matter when being charged with resisting arrest. Even if the officer is trying to effectuate a wrongful arrest, you can be charged if you resist.

The reason for this is simple: safety. Your safety, that of the arresting officer, and anyone else near the arrest. Whenever someone resists arrest, even passively, the chance of injury increases.

Once a police officer initiates an arrest, it is extremely unlikely that the officer will abandon the effort in the face of resistance. Instead, it is much more likely that the officer(s) will respond with increasing levels of physical force as necessary to complete the arrest.

To discourage this possibility, Arizona law does not distinguish between a valid and an invalid arrest when it comes to resisting.

So, even if you believe that the arrest is unjustified, if you want to avoid a resisting arrest charge, it is best not to resist. You can always challenge the validity of the arrest later with the help of a criminal defense lawyer.

What are the Penalties for Resisting Arrest in Arizona?

The penalty you can face for resisting arrest depends on the kind of resistance you offer.

Misdemeanor Penalties for Resisting Arrest

Engaging in passive resistance is a class 1 misdemeanor.

ARS 13-2508(C) defines passive resistance as a nonviolent physical act, or a failure to act, that is intended to impede, hinder, or delay the effecting of an arrest.

Examples of passive resistance include going stiff, not allowing the person to place you in handcuffs and refusing to comply with the arresting officer’s orders.

The penalties for a class 1 misdemeanor conviction in Arizona include:

• A jail sentence of up to 180 days.
• Up to $2,500 in fines plus additional surcharges.
• Up to three years of probation.
• Restitution to the victim (arresting officer and/or officers) for any and all economic losses
• Possible community service.
• Possible requirement to complete counseling or classes.

Felony Penalties for Resisting Arrest

Any other form of resisting arrest other than passive resistance is a class 6 felony.

The penalties for a class 6 felony depend partly on whether you have a prior felony conviction.

• For a first-time conviction, your sentence can range from probation to two years in an Arizona state prison with a presumptive term of 1 year in prison.
• If you have a historical prior felony conviction, your prison sentence can range from 9 months to 2.75 years, with a presumptive term of 1.75 years in prison.
• For any felony conviction in Arizona, the maximum fine is $150,000 plus any statutory surcharges amounting to a total maximum fine including surcharges of up to approximately $275,000.
• As with a misdemeanor conviction, you can also be subject to additional penalties, including restitution for any and all economic loss suffered by the victim (arresting officer and/or officers).

Possible Addition of an Aggravated Assault Charge

If you threaten physical force against the police officer or use such force, then in addition to a resisting arrest charge, you can also be charged with committing aggravated assault against the arresting officer. This carries more significant penalties:

• If you cause no bodily injury to the officer, aggravated assault is a class 5 felony in Arizona.
• If you cause injury, then the charge is a class 4 felony.

Possible Reduction of a Class 6 Felony to a Misdemeanor

A class 6 felony is the lowest level of felony charge in Arizona. Under ARS 13-604, if convicted the trial court judge has the discretion to reduce a class 6 felony to a class 1 misdemeanor charge.

When deciding whether to reduce a Class 6 felony to a class 1 misdemeanor, or designating the Class 6 felony to a misdemeanor upon successful completion of probation, often referred to as a Class 6 “Undesignated” conviction, the court will consider:

• The nature and circumstances of the offense
• Your character
• Your criminal history (reduction to a misdemeanor is not an option if you have two or more prior felony convictions on your record)
• Whether it would be unduly harsh to convict you of a felony

The court has the option of putting you on probation and delaying judgment on whether to impose a misdemeanor or felony penalty until after you complete the terms of your probation. I.e., Class 6 “Undesignated”.

Or, the court can reduce the charge to a class 1 misdemeanor at the time of sentencing.

What are the Defenses to a Resisting Arrest Charge?

Although it is seemingly easy to be charged with resisting arrest in Arizona, you may have several possible defenses based on the circumstances surrounding your arrest. Here are some common defenses your criminal defense attorney may use on your behalf in plea negotiations or at trial.

• You lacked the intent to resist arrest. For example, you were suffering from a medical condition and/or physical or mental condition that resulted in your resistance.
• You were unaware that the police officer was a peace officer acting in the peace officer’s official authority.
• The officer was not actually making an arrest. The officer must intend to make an arrest, not simply stop you for questioning or attempting to detain you prior to arrest.
• The law enforcement officer was making an unlawful arrest. For example, the officer lacked probable cause to make an arrest.
• You were attempting to avoid arrest without resisting arrest. For example, you flee before the officer can attempt the arrest. Remember, resisting requires a voluntary physical act by you during the arrest.
• You were engaged in self-defense against unnecessary or unreasonable use of physical force by the police officer.
• You have been overcharged with felony resisting arrest instead of misdemeanor resisting arrest.
• Evidence exists to cast reasonable doubt on whether you were resisting arrest. This can consist of witness testimony or video evidence.
• The police officer violated your civil rights under the U.S. Constitution or the Arizona state constitution. This includes failure to inform you of your Miranda rights prior to in custody questioning or violating those rights after you asserted your Miranda right(s).

Have You Been Charged with Resisting Arrest in Arizona?

To get a resisting arrest charge dropped, your criminal law defense attorney must have the experience to evaluate the facts surrounding your arrest and how to use those facts to create reasonable doubt in the minds of the jury considering your case.

At AZ Defenders, our team of attorneys has 150 years of combined experience including a State Bar of Arizona certified Criminal Law Specialist. As a result, you can rely on us to do everything in our power to provide the best possible outcome in your resisting arrest case.

Call the attorneys at AZ Defenders today at (480) 456-6400 or contact us online to schedule a free consultation.