An important distinction to make when being arrest for resisting arrest is whether or not it was alleged you used “violence”. This small detail can mean the difference between a misdemeanor and a felony. A felony carries not only more punishment, but makes the case more challenging to fight because of the higher bail amount, increased court hearings (such as the preliminary hearing), and the stigma that comes with being charged with a “felony”. Thus, for a person that is charged with resisting arrest without violence, the most likely outcome will be that the case will be filed under Penal Code Section 148.
PENAL CODE SECTION 148
PC 148 alleges that a person somehow “obstructed, delayed, or prevented an officer from lawfully performing their duty”. To be found guilty of this charge, the individual charged must show that their conduct was “willful”. The evidence must also show that the person was lawfully detained at the time they allegedly commit resisting arrest. If either of those are not met, a person may not be found guilty or convicted for Penal Code 148.
WHAT IF THE ARREST WAS FOR A FELONY BUT CHARGED AS A MISDEMEANOR?
What often occurs in many criminal cases is that a person is initially arrested and must post bail on a felony arrest—only to discover that by the time the case is filed it’s a misdemeanor. Some find this unfair or evidence that the charge is bogus. While that may be the case at times, the truth of the matter is that it is not law enforcement’s duty to decide how the case is charged. When the arrest is occurring, it’s usually when aggression and chaos are at their highest. In any reasonable officer’s mind, they may honestly believe that felony conduct had just occurred. But upon closer inspection and reflection, the arrest will more likely reflect a misdemeanor offense. The only thing this does to somebody’s case is change the process and procedure in how the case will be fought. One should not mistake however that fighting a misdemeanor charge is in any way easier than a felony. Sometimes it’s better to fight a felony charge due to the existence of a preliminary hearing.