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
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
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.