Resisting arrest in Virginia is when an officer actually communicates physically or verbally to the person that they are under arrest, then that person affirmatively, with the intent to prevent the arrest, does something to avoid the arrest.
Avoiding lawful arrest could mean fleeing from, running away from, or evading the law enforcement officer when one of two things happens: the officer applies physical force by laying their hands on that person, or the officer communicates to that person that they are under arrest. The officer has a legal authority to do those things.
It could be an action as dramatic as running away from the officer or as non-dramatic as jerking away from the officer when they tell the person that they are under arrest. Whenever a person does not immediately succumb to an officer’s demand, that person can be charged with resisting arrest in Virginia and should consult with a criminal attorney as soon as possible to mitigate the damage.
This does not vary depending on jurisdiction because resisting arrest is a state charge. The resisting arrest law, VA Code § 18.2-479.1, is a state law that applies in every jurisdiction.
Some police officers are very sensitive to resisting arrests in Virginia and any movement a person makes after being told they are under arrest can be considered as resisting arrest. Other officers might have a bit higher threshold of tolerance for people who are being told they are under arrest and their response to that information.
Resisting arrest is always added as a separate charge. When someone is charged with a crime and the police opine that they resisted arrest at the time they were charged, the police tack that on as a separate, additional charge. When the person goes to court, he or she faces both of those charges.
Resisting arrest in Virginia can only be a Class 1 misdemeanor. There is no felony version of resisting arrest.
When someone is charged with resisting arrest, the critical element is that the arrest itself is lawful. If someone is in the process of being charged with the crime, they might also get tagged with resisting arrest. If the defense attorney can show that the person should have never been arrested for the original crime in the first place, meaning the officer lacked probable cause or the statutory authority to place that person under arrest, the resisting arrest may also be lifted. Of course, the underlying charge is lifted as well.
The only mechanism to challenge a resisting arrest charge is in court. When a person is on the street and an officer says he or she is under arrest, that is not the time for debate, that is a time for compliance.
The first thing someone should do when they are charged with resisting arrest in Virginia is to call a lawyer. If you are in this situation, you are at least one misdemeanor as well as another criminal charge. It is logically impossible to be charged with only resisting arrest.
At the very least, someone in this situation is facing two criminal charges, one of which is a Class 1 misdemeanor. These are not charges to be taken lightly and the very first thing that you should do is contact a seasoned criminal defense attorney who can help you pick your way out of this trouble.
Northern Virginia Criminal Defense Group
