Resisting Arrest

What is the exact criminal law in Virginia for Resisting Arrest?

§ 18.2-479.1. Resisting arrest; fleeing from a law-enforcement officer; penalty.

A. Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor.

B. For purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.

What must be proven to convict me of Resisting Arrest?

  • The Commonwealth must prove beyond a reasonable doubt every element listed below:
    • 1) You intentionally
    • 2) fled
    • 3) from a law enforcement officer
    • 4) when said law enforcement officer
    • 5) applied physical force to you
    • 6) in order to lawfully arrest you; or
    • 1b) You intentionally
    • 2b) fled
    • 3b) from a law enforcement officer
    • 4b) when said law enforcement officer
    • 5b) communicated to you
    • 6b) that you were under arrest
    • 7b) and said law enforcement officer
    • 8b) had the immediate physical ability
    • 9b) to lawfully arrest you
    • 10b) and a reasonable person in your situation would have known that you were not free to leave.
  • Additional Notes:
    • A resisting arrest charge is a supplemental charge because it accompanies the criminal charge that provided the basis for your arrest.
    • The only conduct prohibited under the resisting arrest law is “fleeing,” which means to “run away.” Therefore, merely making the officer’s arrest of you difficult is not resisting arrest. For example, squirming to avoid being handcuffed makes the officer’s arrest of you difficult, but it does not constitute resisting arrest because you did not run away from the officer.
    • A “law enforcement officer” is a local police officer, state police officer, possibly a college police officer, highway patrol officer, sheriff, deputy, prison guard, probation officer, parole officer, correctional officer, and park ranger. However, a private security guard is not a “law enforcement officer.”

What is the maximum punishment for Resisting Arrest?

  • Resisting Arrest is a Class 1 misdemeanor, which is punishable by a maximum jail sentence of 12 months and/or a maximum fine of $2,500.00.

Is there a “mandatory minimum” punishment for Resisting Arrest?

  • No.

What are the consequences to a conviction for Resisting Arrest?

  • Permanent criminal record that cannot be expunged.
  • Court costs.
  • Possible active jail time up to 12 months.
  • Possible fine.
  • Possible period of uniform good behavior.
  • Possible community service hours.
  • Possible effect on current and/or prospective employment.
  • If you have a government security clearance, possible effect on current and/or prospective government security clearance.
  • If you are a non-U.S. citizen, possible effect on current and/or prospective immigration status.

What are the defenses to Resisting Arrest?

  • Statute of limitations for misdemeanors
    • Pursuant to Va. Code §19.2-8, if you have received a resisting arrest charge more than one (1) year after the occurrence of offense, the charge must be dismissed for failure to timely prosecute.
  • Improper venue
    • If the evidence cannot and/or does not prove that the resisting arrest occurred in the city or county in which you are charged, the charge must be dismissed.
  • Mistaken identity
    • If the evidence proves that you were not the one who resisted arrest, the charge must be dismissed.
  • No fleeing
    • If the evidence proves that you did not run away from the officer, the charge must be dismissed.
  • The officer is not a law enforcement officer
    • If the evidence proves that you resisted arrest against a private security guard, the charge must be dismissed.
  • The fleeing occurred before the officer made physical contact and/or communicated an arrest
    • If the evidence proves that the officer had not yet touched you and/or communicated to you that you were under arrest at the time you fled, the charge must be dismissed.
  • The officer did not have the immediate physical ability to arrest
    • If the evidence proves that the officer was not physically capable of immediately arresting you at the time you fled, the charge must be dismissed.
  • Resisting an unlawful arrest
    • If the evidence proves that you resisted arrest because the officer attempted an unlawful arrest – that is – an arrest without probable cause to believe that you committed a crime, the charge must be dismissed.
  • A reasonable person would have felt free to leave
    • If the evidence proves that a reasonable person in your situation would have felt free to leave when the officer communicated to you that you were under arrest, the charge must be dismissed.
  • Fabrication
    • If the evidence proves that the officer is lying about your resisting arrest, the charge must be dismissed. This is very difficult to prove.
  • Failure to prosecute on behalf of the officer
    • If the officer fails to show up for trial, the charge must be dismissed for failure to prosecute.

If there is no defense to my Resisting Arrest charge, what are ways to avoid a conviction?

  • If the officer agrees to drop the charge and the court accepts the officer’s decision, the charge will be dismissed. This rarely happens.
  • If the officer and the court agree to impose a peace bond in lieu of a conviction, the charge will be dismissed. A peace bond immediately dismisses your charge, but you are required to keep the peace for a period of time. If you are not peaceful for the prescribed period of time, you will have to pay the full amount of the peace bond and the officer may re-initiate the Resisting Arrest charge against you.

Where exactly does your firm handle Resisting Arrest cases?

  • Our Northern Virginia office handles:
    • Resisting Arrest in Fairfax City
    • Resisting Arrest in Fairfax County
    • Resisting Arrest in Town of Herndon
    • Resisting Arrest in Town of Vienna
    • Resisting Arrest in Alexandria City
    • Resisting Arrest in Loudoun County
    • Resisting Arrest in Culpeper County
    • Resisting Arrest in Frederick County
    • Resisting Arrest in Winchester County
    • Resisting Arrest in Warren County
    • Resisting Arrest in Stafford County
    • Resisting Arrest in Fauquier County
    • Resisting Arrest in Shenandoah County
    • Resisting Arrest in Spotsylvania County
    • Resisting Arrest in Hanover County
    • Resisting Arrest in Henrico County
    • Resisting Arrest in Richmond City
    • Resisting Arrest in Chesterfield
    • Resisting Arrest in Prince William County
    • Resisting Arrest in Manassass City
    • Resisting Arrest in Arlington County
    • Resisting Arrest in City of Falls Church
  • Our Hampton Roads office handles:
    • Resisting Arrest in Newport News
    • Resisting Arrest in Hampton
    • Resisting Arrest in York County
    • Resisting Arrest in Poquoson
    • Resisting Arrest in Williamsburg
    • Resisting Arrest in James City County
    • Resisting Arrest in New Kent County
    • Resisting Arrest in Middlesex
    • Resisting Arrest in King William
    • Resisting Arrest in Suffolk
    • Resisting Arrest in Portsmouth
    • Resisting Arrest in Chesapeake
    • Resisting Arrest in Norfolk
    • Resisting Arrest in Virginia Beach
    • Resisting Arrest in Northampton County (Eastville)

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