When you think of “resisting arrest” you most likely think of a dramatic scene involving someone running from the police, or punching a police officer to get away.
In reality, a charge for resisting arrest can sometimes play out like a scene from a movie, but most of the time the situation isn’t that dramatic. You can get charged with resisting arrest for doing a number of different things.
Getting arrested is always a complicated and scary situation, but when you have a resisting arrest charge added to your other charges, your problems only grow.
Basics of resisting arrest charges in South Carolina
You don’t have to physically fight against a cop to receive a resisting arrest charge in South Carolina. Landing this charge is not difficult, so you must always do your best to cooperate with an arresting officer.
Despite your intentions, however, sometimes the stress of the situation and your emotions can result in doing something that adds this charge to the others you may already face.
Understanding the potential consequences you could face as a result of your charge and knowing the appropriate steps to fight the charge are critical in avoiding or minimizing your jail time and financial penalties.
The 3 Types of Resisting Arrest Charges
There are 3 different kinds of resisting arrest charges. They include:
The specific charge you receive, along with the penalties you face, will depend on whether or not you hurt the officer when you resist arrest. The use of a weapon can also impact your consequences.
Let’s go into a little more detail about each of the types listed above.
Resisting arrest without harm to the officer
The law that covers cases of resisting arrest in which the officer wasn’t harmed reads:
“It is unlawful to knowingly or willfully oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not.”
There are some key points in this law that determine whether or not what you did qualifies as resisting arrest without harm to an officer:
- 1- You have to have “knowingly or willfully” resisted.
This means that you have to have resisted arrest intentionally and on purpose—you can’t accidentally resist. For instance, if a police officer serves a warrant and tries to cuff you and you try to run away, you have knowingly resisted arrest. If, on the other hand, someone not wearing a uniform and who has not identified him or herself comes up to you and tries to grab your hands and you run away, you haven’t “knowingly or willfully” resisted.
- 2- The person trying to arrest you must be a law enforcement officer.
While the definition of who is and is not considered a law enforcement officer varies. In South Carolina, law enforcement officers include not only police officers but also correctional officers, parole supervisors and park rangers. Whether or not a private security guard counts as a law enforcement officer depends on a number of factors. Often, a judge will determine whether a private security guard is a law enforcement officer.
- 3- You also must have “reasonably” known that the person was a law enforcement officer.
If a law enforcement officer is in uniform, it is evident that he or she is a law enforcement officer. It’s a bit more complicated if the person is out of uniform. In these cases, the person generally has to have stated that they are a law enforcement officer before proceeding to arrest you. Also, this knowledge must be “reasonable.” If there is a doubt as to your ability to clearly know that the individual was a law enforcement officer, the judge will decide whether you could have known or not.
You face the below listed consequences if you have a charge of resisting arrest without harming the officer:
||Up to 1 year
|*Note: You can receive BOTH the fine and the jail time
Judges have judicial discretion in determining what consequence you will receive. Judicial discretion means that it’s up to the judge to decide your consequences. Because the potential consequences range so much, the specific facts of your case are very important.
This also makes having a good lawyer very important. A strong lawyer can create a mitigating argument—this means that the lawyer will focus on the positive things about you and try to make the mistakes you might have made in this situation look less serious. Law enforcement officers also have good memories. It’s often helpful to have a third party come in and diffuse the situation by acting as a go between you and the officer.
Resisting arrest with harm to the officer
The law covering situations in which you resist arrest and harm the officer reads:
“It is unlawful for a person to knowingly and willfully assault, beat, or wound a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or to assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not.”
The law doesn’t specifically say what qualifies as “wounding” an officer. This makes it tricky to figure out whether what you did hurt the officer enough to make you subject to this charge. It’s up to the judge to decide this.
Usually, if you did something like throw a stack of papers at a cop and give him a paper cut, it wouldn’t be considered “wounding.” If, on the other hand, you hit him on the head and knocked him out, it would be considered “wounding.”
You face the consequences in the below table if you have a charge of resisting arrest with harm to the officer:
||Up to 10 years
|*Note: You can receive BOTH the fine and the jail time
Resisting arrest with the use of a deadly weapon
If you use a weapon when you are resisting arrest, you could face severe consequences. To be charged with this offense, you don’t have to actually use the weapon. Simply threatening to use a weapon or claiming to have a weapon can be enough to land you this charge.
Finally, this charge can apply even if you aren’t resisting your own arrest. This charge applies if you are using or threatening to use a weapon to resist your own arrest OR if you use or threaten to use a weapon to try to stop another person from being arrested.
This law doesn’t clarify what items can be considered deadly weapons. Anything that can “inflict deadly force” can be considered a deadly weapon. So, a brick could be considered a deadly weapon, because you could kill someone with it if you tried. Likewise, if you hit an officer with your car while fleeing, you could be charged with resisting arrest with the use of a deadly weapon.
The table below shows consequences you can face if you have a charge of resisting arrest with harm to the officer:
||Sentence can’t be suspended to less than six months
|All other offenses
||Sentence can’t be suspended to less than two years;
No parole eligibility for two years
Please note, there is a mandatory minimum sentence of two years which must be served when convicted of this charge.
Defenses to Resisting Arrest Charges:
There are some things that your lawyer can argue as defenses against your resisting arrest charges. Your lawyer will decide which—if either–of these defenses fits your specific case.
The two most common defenses are:
If the law enforcement officer trying to arrest you used more force than he or she needed to, your lawyer could argue self defense.
For your lawyer’s argument to work, the judge has to believe that you only used enough force in resisting to stop the law enforcement officer from hurting you. For example, if the cop was hitting you repeatedly and you ran away to avoid getting hurt, your lawyer might be able to argue self defense. If, on the other hand, when the cop was hitting you, you started hitting him back and continued hitting him even after he passed out, this defense wouldn’t work.
To be charged with resisting arrest, the arrest itself has to be lawful. If the person trying to arrest you wasn’t able to do so under the law, then you can’t be charged with resisting arrest. For instance, if the person arresting you didn’t have a warrant or probable cause, the arrest is considered unlawful and you can’t be charged with resisting arrest.
Questions About Resisting Arrest Charges in SC
Each case is different, so only a lawyer who knows your case can give you the exact answers you need, but here are some answers to the most commonly asked questions.
1. How much resistance is required for the charge to stick?
It depends. If you push, shove or hit the officer, you can—and likely will—be charged with resisting arrest. If you just talk back to the officer, you likely won’t be charged with resisting arrest.
2. How can I get a resisting arrest charge dropped?
This is where having a good lawyer on your side is important. To get the charges dropped, your lawyer will need to review your case and decide if what you did meets the requirements of the charge.
This often includes determining if:
- You meant to resist arrest
- You knew the person was a law enforcement officer
People can make mistakes, so it’s possible you will be charged with resisting arrest even when what you did didn’t meet the requirements. If your lawyer finds this charge wasn’t warranted in your case, he or she will fight to get the charge dropped.
3. Do I need a lawyer to fight a resisting arrest charge?
Yes. You definitely do. Having a lawyer is especially important when fighting this type of charge because the “victim” in this case is a law enforcement officer—this means the charge won’t be taken lightly. You need someone who knows how to fight for your rights.
Taking the next step.
If you’ve found yourself facing a resisting arrest charge, you could be looking at spending time in jail, paying a high fine, or both. Having the right legal help can make all the difference.
Get the help you need by calling us at (803) 779-4472 or reaching out through our online contact form today. We’ll work with you to protect your rights and build a defense to give you your best chance.