Resisting Arrest in New Jersey - N.J.S.A 2C:29-2

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person being pushed up against the back of a pickup truck and getting arrested

Being arrested is a frightening prospect. Running away or trying to prevent being restrained are natural reactions that any person would have—especially those who know they are innocent. Unfortunately, doing so is a crime in New Jersey.

Resisting arrest in New Jersey is much more serious than most might think. In addition to going to jail, a person will have a criminal record that can make it difficult to get a job and lead a normal life.

What is Resisting Arrest?

Resisting arrest is a criminal offense in New Jersey. Under N.J.S.A. 2C:29-2, a person cannot prevent a police officer from making an arrest. This is true even when the person believes that he or she is being subjected to a wrongful arrest.

Eluding is a subset of Resisting Arrest (2C:29-2b). A person is guilty of eluding police if, while operating a motor vehicle, he/she knowingly attempts to flee or escape police after having received a signal from the officer to stop the vehicle.

Penalties and Fines

Resisting arrest is a disorderly persons offense, which means a person can face 6 months in jail if found guilty. However, the charge can increase to a fourth-degree crime (felony) if the person resisted arrest by running away from police (i.e. flight or fleeing). Fleeing police can result in up to 18 months in prison.

Even worse, it is a third-degree crime for anyone to threaten violence against police or create a substantial risk of physical injury to anyone while trying to resist arrest. A conviction for this charge means up to 5 years in prison.

Eluding—fleeing police in a vehicle—is also a third-degree crime. Most importantly, a person who creates a risk of injury to the police officer or others while eluding can be guilty of a second-degree crime. A conviction for this can lead to up to 10 years in prison.

Keep in mind that many acts that are considered Resisting Arrest can result in additional charges, such as Obstruction of Justice (2c:29-1), Hindering (2c:29-3) or Disorderly Conduct (2C:33-2).

How To Beat Resisting Arrest Charges

The prosecutor bears the burden of proving a case of Resisting Arrest beyond a reasonable doubt. Thus, a typical defense strategy involves arguing that he/she did not meet this burden.

For example, the prosecutor needs to show that it was the defendant’s intention to prevent the arrest from happening. However, if he/she writhed or wiggled around because he/she was scared or in pain as a result of the officer’s actions, there is a strong argument that resisting was not truly intentional.

Additionally, the prosecutor needs to show that the defendant knew he/she was under arrest. If the defendant did not know, then the prosecutor must show that the officer was acting lawfully in the process of arresting the defendant.

If a criminal defense attorney can show that the officer was not acting appropriately or in the scope of his duties, then the defendant has a valid defense to the crime.

Keep in mind that it is NOT a defense that the person being arrested was innocent of the crime in question.

For example, suppose police arrive to arrest a young man accused of shoplifting. He runs away from police but is caught moments later. The young man shows a receipt that he purchased the item legally. Police must drop the shoplifting charge but can still charge (and convict) the young man for Resisting Arrest.

Do not try to handle a case of Resisting Arrest or eluding police on one’s own. Only a well-trained criminal defense attorney will know what to say and how to reveal genuine holes in a prosecutor’s case.

Case Law Analysis

State v. Lawrence, 142 N.J. Super. 208

In State v. Lawrence, 142 N.J. Super. 208, two police officers informed the defendant that he was under arrest for drunk driving. When they dragged the defendant to the police car, the defendant resisted by kicking and pushing backward with his feet. The officers also struggled to put the defendant into the police car because he stiffened his body to prevent it. The court reasoned that a private citizen may not use force to resist arrest he knows or has good reason to believe is an authorized. Here, the defendant knew the police were arresting him and the purpose of the arrest, but he still used force to prevent it. This supported his conviction for Resisting Arrest.

State v. McLeod, No. A-4062-07T4, 2009 WL 2136270

Police officers arrested the defendant for his violation of the final restraining order against him in State v. McLeod. After the defendant was handcuffed, he pulled away from the officers, grew boisterous and argumentative, and broke the police car’s window. The defendant argued that once handcuffed, a procedure with which he supposedly cooperated, he was not capable of Resisting Arrest. The court disagreed with the defendant. Although the defendant was handcuffed, he continued interfering with the completion of his arrest by pulling away from the officers, growing boisterous and breaking the police car’s window. As the defendant’s conduct demonstrated intent to avoid being arrested, his conviction for Resisting Arrest was established. Although Lawrence and Mcleod relate to different stages of arrest, once a defendant shows an intention to prevent being arrested, he/she can be convicted for Resisting Arrest.

State v. Kane, 303 N.J.Super. 167

In State v. Kane, 303 N.J.Super. 167, the defendant disrupted a public meeting (N.J.S.A. 2C:33-8) and police officers placed him in an unlawful arrest. When police officers removed him from the meeting, he pulled back and refused. Then he was charged with Resisting Arrest. The defendant admitted that he struggled as he was being handcuffed but he did not continue to do so after he was informed that he was being arrested. The court reasoned that it is still illegal to resist an unlawful arrest “provided the officer was acting under color of his official authority and provided the law enforcement officer announced his intention to arrest prior to the resistance.” Thus, while the actions in question did not amount to a violation of N.J.S.A. 2C:33-8, police officers were clearly acting under color of their official authority in arresting the defendant. However, as police officers failed to announce their intention to arrest the defendant before his resistance, the court reversed the defendant’s conviction for Resisting Arrest.

State v. Reece, 222 N.J. 154

The defendant in State v. Reece, 222 N.J. 154 was charged with Resisting Arrest because he pulled his hands away from officers after they announced he was under arrest, and in doing so dragged one of the officers to the floor. The defendant argued that Resisting Arrest could not stand because his actions were justified by the officers’ use of excessive force. The court admitted that a person’s use of force against a law enforcement officer may be justified when the officer “employed unlawful force to effect an arrest”. Here, when two of the officers found their colleague was dragged to the floor, each of them punched the defendant once in his face. The court held the force used by those two officers was not excessive because it was necessary to subdue the defendant. Thus, the defendant’s conviction for Resisting Arrest was affirmed.

Consequences for a First Offense

A person with no prior convictions who is charged with Resisting Arrest could potentially avoid jail time, depending on the level of the charge. Fourth-degree Resisting Arrest (running away) carries what is known as a presumption of non-incarceration (PNI). This means a person may not be sentenced to time in prison upon conviction.

However, third-degree Resisting Arrest (involving violence/injury or fleeing in a vehicle) is exempt from PNI. That means, even under the best circumstances, a person can still end up in prison upon conviction.

Likewise, judges are allowed to waive a PNI after considering possible aggravating factors, such as the crime he/she was arrested for, his/her overall demeanor, and the possible risk to the community.

Regardless of whether this is a person’s first offense or if he/she has had run-ins with the law before, it is critical to hire a skilled criminal defense attorney.

Consequences for Juveniles

Police can appear even more intimidating to young kids than they are to adults. A juvenile (under 18) who is being accused of a crime by police might back away out of fear, only to be charged with Resisting Arrest.

If the police do not communicate clearly to the child, he/she may not be aware that he/she was under arrest. As a result, he/she may act defensively when police attempt to restrain him/her. In many ways, these are normal reactions to fear and intimidation, and children should not be punished for natural reactions.

Family Court judges are usually very understanding of children’s emotional states and levels of maturity. However, even the most understanding judge can somehow see fit to send a child to a juvenile detention facility for the crime of being scared. Thus, it is still critical that every child have a skilled criminal defense attorney to argue his/her case.

The right attorney can present evidence that weakens the prosecutor’s argument that the child was trying to resist police. When appropriate, the attorney may negotiate with prosecutors to reduce the charge to a lesser offense with a lighter penalty.

Enrolling in NJ Diversionary Programs

In certain cases, a person can avoid a conviction for Resisting Arrest by enrolling in a diversionary program, such as Pre-Trial Intervention (PTI). In some cases, a person who enrolls in PTI must first plead guilty to the charge. The judge will then assign a program that might include counseling, drug testing, community service and more.

Those who complete the PTI program, which can take up to 3 years, will have the charges dismissed—no conviction, no criminal record. Failure to complete the program means any guilty plea entered stands and the person can be arrested and sentenced. If no plea was required, the case can be brought back to trial.

PTI and other diversionary programs are difficult to get into. Even those who are otherwise eligible may not be accepted. Moreover, there are times when a diversionary program is not the best option. A person should always discuss the option of PTI or another program with his/her attorney to determine the best strategy based on the facts of the case and one’s life.

Expunging a Conviction for Resisting Arrest

New Jersey allows those who meet certain criteria to petition the court to expunge their criminal records. Resisting arrest is one of many offenses that can be removed from a criminal record.

In order to be eligible to file the petition, a person cannot have more than 1 felony conviction (called an indictable offense in NJ) and 3 disorderly persons offenses on the record. Alternatively, a person with no indictable convictions can clear a record if it has no more than 5 disorderly persons offenses.

As such, if a person is charged with fourth- or third-degree Resisting Arrest, then he/she cannot have any other indictable offenses on the record. There are some limited exceptions to this rule. It is best to consult with an attorney to better understand if one is or is not eligible to petition for expungement.

Frequently Asked Questions

What qualifies as Resisting Arrest?

Resisting arrest is defined as any attempt to prevent police from arresting or handcuffing a person. This includes struggling, hiding, or running away. Non-physical acts, such as giving police false or misleading information, can also be considered Resisting Arrest. In addition, threatening police with violence—even if one does not make good on those threats—can be considered resisting.

Is Resisting Arrest a violent crime?

Resisting arrest is not generally considered a violent crime.

Is Resisting Arrest a crime of moral turpitude?

U.S. Citizenship and Immigration Services states that Resisting Arrest “may constitute a [crime of moral turpitude].” This means a conviction is not a guarantee of deportation, but it is a risk. If any valid U.S. visa holder or permanent legal resident is convicted of this offense, he/she should contact an attorney right away.

What can Resisting Arrest be reduced to?

This will depend on many factors, including the circumstances surrounding the arrest, what the defendant was charged with that lead to the arrest, and his/her criminal history.

Is Resisting Arrest a felony or misdemeanor in NJ?

Resisting arrest can be charged as either a disorderly persons offense (akin to a misdemeanor) or an indictable offense (akin to a felony) depending on what acts lead to the charge.

Why is Resisting Arrest illegal?

Resisting arrest makes it difficult for officers to perform their duties and keep the community safe. By making it a separate crime to resist arrest, the state aims to disincentive people from fighting with law enforcement and encourage them to leverage their rights within the criminal justice system, including the right to an attorney.

Who Should I Contact?

If you or a loved one was charged with Resisting Arrest or eluding in New Jersey, contact the criminal defense attorneys of Rosenblum Law today. Our team has helped people in similar situations. We can defend your constitutional rights, fight to keep you out of jail, and do what we can to have your Resisting Arrest charge dismissed. E-mail or call us today at 888-815-3649.

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