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Resisting Arrest – Knowing Your Rights

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Resisting arrest is one thing, assaulting an officer in the process is yet another.  Assaulting a police dog?  That will certainly make the headlines.  When police were called to the scene of a disturbance and found a San Jose man vandalizing cars and brandishing a weapon, they employed the skills of their German Shepherd.  However, they didn’t expect the man to bite the dog.

An unusual case of resisting arrest.

In Santa Clara County, California near San Jose, Sheriff’s deputies responded to a call and found Frank Garcia, 34, armed with what appeared to be a knife.  He had slashed a tire on one vehicle and smashed in several car windows.  Officers attempted to talk him down so they could take him in, but he stabbed himself three times.

As his self-inflicted injuries were not life threatening, the deputies made the decision to release their K-9, “Ski” in an attempt to subdue the man.  However, Garcia allegedly, punched, choked and bit the dog until the deputies were able to tackle him to the ground.  Ski was not seriously injured, and is expected to make a full recovery and return to duty soon. Garcia was arrested on a number of charges, including resisting arrest, being under the influence of a controlled substance, and injuring a police dog.

Some of the incident was caught on video by a nearby cell phone user, and of course the video has gone viral.  Garcia’s cousin, Maxine Gonzales says that she was very thankful the deputies did not have the need to shoot at him.  That is obviously one good thing that came out of the deputies’ decision to use the K-9.  However, the penalties for resisting arrest can still be pretty steep.  In California, resisting arrest is a misdemeanor and carries with it a sentence of up to one (1) year and/or a maximum fine of one thousand dollar ($1,000) fine.  The same offense in Massachusetts could lead to a longer period of confinement.

Resisting Arrest Charges in Massachusetts

Although the charge of resisting arrest in Massachusetts is only a misdemeanor, it still carries with it a pretty significant penalty.  Massachusetts General Law Chapter 268 section 32B states as follows:

[w]hoever violates this section shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both.

The elements of a resisting arrest charge are (1) that you prevented or attempted to prevent a police officer from making an arrest; (2) the officer was acting under color of his official authority at the time of the arrest; (3) proof that you actually resisted; and (4) you knowingly committed these acts.  Resisting usually means that you used, or threatened to use, physical force or violence against an officer or someone else.  It can also include using some other means to create a substantial risk of causing bodily injury to the officer or another person.  It must also be shown that the police officer was either in uniform at the time he attempted to arrest you, or if not, he identified himself by showing his badge or other credentials.

Defenses to resisting arrest may apply to your situation.

In Massachusetts, there are defenses applicable for resisting arrest charges, such as when you are resisting a pat frisk, fleeing a police officer who orders you to stop for the purposes of a threshold inquiry only, or not knowing the person you were resisting was a police officer.  You also have the right to use reasonable force to resist an arrest if the officer uses unreasonable or excessive force.  If you have been charged with resisting arrest it is important to retain a Massachusetts criminal defense attorney who knows the system and can help defend your rights.


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