Jon H. Gutmacher, Esq.

Orlando Criminal Defense Lawyer

Former Prosecutor & Police Legal Advisor,

Author: "Florida Firearms -- Law, Use & Ownership",

NRA Certified Firearms Instructor,

NRA Referral Attorney.

JON H. GUTMACHER, P.A.: Orlando Criminal Trial Attorney Services

Resisting Arrest And Battery On An Officer In Florida

In Florida, "resisting arrest" is the catchall statute for obstruction of a law enforcement officer. In my opinion, as a Florida criminal lawyer, it is poorly written, subject to inconsistent enforcement and interpretation, and is also the most abused criminal statute in Florida. It is regularly used by police to cover up their own misconduct, serve as a catch-all offense when they can’t think of anything else to arrest someone on, and also to arrest people they just don’t like. Occasionally, it serves a legitimate purpose.

There are two primary sections of the Florida Statutes that cover the crime of resisting arrest. They are both found in Chapter 843 of the Florida Statutes. The first is Florida Statute 843.01 – known as "resisting officer with violence", or more commonly known as "resisting with violence". It is a third degree felony punishable by up to five years in state prison. In essence, this subsection of the statute prohibits a person from using or threatening any physical violence against an officer who engaged is in the lawful execution of his or her duties, and punishes such illegal action as a third degree felony. The case law holds that even if an officer is making an illegal arrest – a person who uses force against the officer is guilty of this crime. The obvious purpose is to prevent injury to law enforcement, and to prevent escalation of arrest situations. All in all – a good statute

The problem child of the chapter is Florida Statute 843.02, named "resisting officer without violence". It is often known as "resisting arrest without violence", or “resisting without”. It is a first degree misdemeanor, and carries a maximum sentence of one year in the county jail. In essence, this subsection of the statute states that "whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty without offering or doing violence" is guilty of a first degree misdemeanor. Problems arise in multiple situations – usually that the officer didn’t have the right to detain or question the citizen in the first place, was carrying out an illegal search or seizure, was unlawfully trying to enter a home, or was demanding a citizen do or not do an act that was actually legal.

As you can see, the primary problem here is that police officers usually don’t like citizens telling them the law, or refusing to cooperate with them – and since there are no judges "on the street" when these things occur – bad arrests can happen. Thus, when a law enforcement officer asks you a question – he or she expects an answer, not a legal argument. When a cop tells you to do something – they expect you will do it. And, if you’re one of those people who still believe you have any Constitutional rights outside of a court room, or chose to argue with or ignore the officer’s question, or fail to immediately obey the order (lawful or unlawful) – you may be arrested for “resisting arrest”, right or wrong.

So, the net affect in these situations is usually an arrest for "resisting arrest without violence". In most of these instances you’ll spend several hours in jail until you’re bailed out. Sometimes, longer if you don’t have funds, friends, or family to assist in getting you out. Many of these cases never get very far – and the prosecutor’s office (ie: State Attorney) drops them because the arrest was illegal, or the conduct was understandable under the circumstances. Most prosecutors (not all) have better things to do than prosecute nuisance value crimes, and obviously bad arrests. On the other hand, if you are prosecuted – you have several available defenses – but you’re probably in for a real fight. These cases can get "dirty" real quick – and if you have a "law and order" type judge – you may wind up with a jail sentence if you lose. Thus, the defense of these cases is intense – even as a misdemeanor, especially if they are expected to go to trial.

The information contained in this section is not rendered as legal advice, and is only generalized information on the law. If you require legal advice on a specific matter you should first consult a lawyer.

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