Resisting Arrest / Obstructing a Peace Officer

In this closeup, focus is on a pair of handcuffs held by a police officer. The officer stands behind a man with his hands behind his back. A parked car is in the background. Visual concept for a blog post titled:Resisting Arrest / Obstructing a Peace Officer.

When a police encounter turns from information gathering to arrest, even the slightest resistance can be enough for a police officer to charge you with resisting arrest. In Michigan, resisting a police officer who is performing their duties is a felony, punishable by up to two years in prison.

Prosecutors and judges take allegations of resisting arrest seriously. If you were charged with resisting arrest in Michigan, you need experienced, aggressive legal representation. Elmen Legan can help. Contact Elmen Legal today to schedule an appointment to discuss your situation with Ann Arbor criminal defense attorney Robert Elmen.

Resisting or Obstructing an Officer in Michigan

Michigan statute MCL 750.81d defines the crime of resisting arrest. The full name of the offense is "Assaulting, Battering, Resisting, Obstructing, Opposing Person Performing Duty." The statute criminalizes the following seven behaviors:

  • Assaulting a Police Officer
  • Battering a Police Officer
  • Wounding a Police Officer
  • Resisting a Police Officer
  • Obstructing a Police Officer
  • Opposing a Police Officer
  • Endangering a Police Officer

Even though the statute covers seven distinct activities, the crime is usually referred to as “Resisting and Obstructing,” or “R&O” for short. To be charged with resisting arrest in Michigan, you only need to have done one of the seven things identified in the statute.

What Are the Penalties for Resisting Arrest in Michigan?

Resisting and Obstructing can be charged under state law as a felony, punishable by up to two years in prison. It can also be charged under local ordinances as a misdemeanor, punishable by one year or less in jail.

If a police officer was injured or killed during the altercation, you could face the following additional penalties in addition to charges for resisting arrest:

  • If the encounter resulted in “bodily injury requiring medical attention or medical care,” you face up to 4 years in prison and a $5,000 fine.
  • If you caused “serious impairment of a body function,” you face 15 years in person and a $10,000 fine.
  • If the police officer died as a result of the encounter, you face 20 years in prison and a $20,000 fine.

Prosecutors want to protect the officers they work with every day, and they take allegations of resisting arrest seriously. Judges are often the same and will impose harsh penalties on someone convicted of resisting arrest.

What Is the Crime of Attempted Resisting Arrest?

“Attempt” means you intended to commit a crime and took actions beyond preparing to commit it but were unsuccessful because of some outside interruption. Attempt usually reduces the maximum penalty by half. Charges of attempted R&O are punishable by up to one year in jail.

Can You Resist Unlawful Arrest?

You cannot be charged with resisting arrest for lawfully exercising your rights. Unfortunately, some police officers take offense if you invoke your rights, as doing so makes their job harder. They may charge you with resisting arrest for asserting your rights, even when you were not actually resisting.

For example, you are allowed to exercise the following legal rights during an arrest:

  • The right to remain silent. The right to remain silent is guaranteed under the Fifth Amendment. If you are under investigation or have been arrested, do not talk to the police. Instead, calmly explain that you are asserting your right to remain silent and wish to speak to a lawyer.
  • The right to resist an unlawful arrest. In the 2012 case of People v. Moreno, the Michigan Supreme Court made clear that a person has an absolute right to resist unlawful police action, including unlawful arrest. If the police do not have a valid reason to arrest you and you resisted an unlawful arrest, you should contact Elmen Legal immediately to discuss your options.
  • Freedom of speech. Freedom of speech is guaranteed under the First Amendment. In City of Houston v. Hill, the US Supreme Court ruled that a person has an absolute First Amendment right to criticize the government, including police officers. However, you must tread carefully when exercising your First Amendment rights, as you lose your right to free speech when you engage in speech that is considered “fighting words” or “obscenity.”

Defending Against Charges of Resisting Arrest in Michigan

Technology has ushered in a new era of police work where almost every interaction with a police officer is recorded on a dashcam, bodycam, or both. Defending against resisting arrest charges requires a skilled and experienced litigator who will dive deep and investigate every aspect of your case to uncover video, audio, and written evidence of your encounter with the police.

Ann Arbor criminal defense attorney Robert Elmen has the skills and experience to thoroughly investigate the charges against you and mount a compelling defense designed to result in a Not Guilty verdict at trial or that will force the prosecutor to offer a significant reduction in charges or dismiss your case.

Call (734) 707-8915 or contact Elmen Legal online to schedule a confidential appointment to discuss your situation and how Ann Arbor criminal defense attorney Robert Elmen can help.