In Virginia, both Resisting Arrest and Assault on Law Enforcement charges are very serious. They are also very different. If you’ve been charged with either, here’s some useful information.
How does Virginia define Resisting Arrest?
First, let’s discuss Resisting Arrest (“Resisting”). Under Virginia Code Section 18.2-460, Resisting is essentially “fleeing” from an officer when the officer does one of the following:
- Applies physical force; or
- Communicates that you are under arrest.
Before the officer does this, however, he or she must:
- Have legal authority and immediately physical ability to place you under arrest; and
- A reasonable person who receives such communication knows or should know that he or she is not free to leave.
What is the punishment for Resisting ?
Resisting is a Class 1 Misdemeanor. That means the Court can sentence you up to one (1) year in jail and/or a fine of $2,500.
What are some possible defenses to Resisting ?
If you’ve been charged, there are several issues to consider. First, was the officer actually in a position to lawfully arrest you? So, for instance, if you were illegal stopped for a traffic offense, and that interaction leads to a resisting arrest charge, this may be a defense.
Another issue to consider is whether your actions constituted “fleeing.” I’ve handled cases where simply because my client “tensed up,” while being arrested, he was charged with Resisting Arrest. Another possible argument (if the facts bear out in the case) is that the officer didn’t clearly communicate his or her intention to arrest you.
Of course, these issues are just a few things to think about, and whether they apply will depend on the facts of your case. However, they are issues you should certainly discuss openly with your attorney.
Assault on Law Enforcement Officer is often overcharged when it should have been Resisting Arrest.
Let’s now shift gears to Assault on Law Enforcement (Assault on LEO) because the charges are employed interchangeably. But they are very different. Indeed, I’ve seen people “over-charged” with Assault on LEO when they should have been charged with Resisting.
Under Virginia Code Section 18.2-57(c), Assault on LEO is a much more serious offense. It’s a Class 6 Felony with a Mandatory Minimum of 6 months in jail. Compared to the Class I Misdemeanor of Resisting , Assault on LEO is overwhelming.
This is coupled with the fact that the legal definition of Assault in Virginia maintains a very low threshold for a conviction. To be guilty of assault, you don’t have to injury anyone. In some instances, you don’t even have to touch them. Often times, those accused of Assault on LEO cannot risk defending themselves in court because the cards are stacked against them. Indeed, we’ve written about this before. Check out this our Article “I’ve been charged with Assault on Law Enforcement Officer and I’m innocent,” here.
This is particularly concerning when someone is wrongfully charged with Assault on LEO has a legitimate defense to Resisting Arrest. Likely, they will be forced to plea to Resisting for fear of the consequences of Assault on LEO.
If you’ve been charged with Resisting Arrest or Assault on Law Enforcement Officer, reach out to Abrenio Law to discuss your case. You can call us at 703.570.4180 for your Free Consultation. Also learn more about Owner James Abrenio here.