Resisting Arrest

Resisting Arrest

Penal Code 148 PC makes it a misdemeanor to willfully to resist, delay or obstruct police officer(s) or emergency medical technician(s) (EMT) who are performing their official duties. Commonly referred to as Resisting Arrest, this offense is often tacked on to a DUI as a separate charge, and can be punishable by up to one year in county jail and up to $1000.00 in fines (before penalty assessments).
While the most common example of Resisting Arrest is physically struggling with police officers or EMT staff, taunting them or giving false information regarding your ID can also be a basis for this charge (another good reason to always exercise your right to remain silent!).

As the name suggests, a prerequisite to substantiate this charge is a lawful arrest. In other words, if you have been falsely accused and/or unlawfully arrested (including premature arrest), or you did not act willfully—or at all—these are all valid defenses.

A common prosecution tactic is to use Resisting Arrest to pressure you into pleading guilty to the DUI charge, offering to dismiss the former in return.

Call Attorney Jeff Yeh

Contact us

Alcohol DUI Defenses


Driving under the influence of alcohol is made illegal because the alcohol in the bloodstream impairs the brain’s ability to function normally. Thus, what is important in determining the level of impairment is the alcohol content IN THE BLOODSTREAM (BAC) and AT THE TIME OF DRIVNG. If what is measured does not reflect what was in the bloodstream at the time of driving, then the results have no rational basis to support a DUI conviction. Moreover, if what is tested becomes contaminated, then the results must also be discredited.

BREATH TESTS: Breath machines are accurate, but the results often aren’t! As ironic as that sounds, it is true. Breath machines are very good at measuring what comes into it. The problem is, what comes into it is often not reflective of what it is designed to measure: a person’s Blood Alcohol Level at the time of driving. Consider the following:

1. Mouth Alcohol – breath machines are designed to measure air, not liquid. When you drink alcohol, some of it gets stuck in between your teeth. Likewise, when a person burps, liquid alcohol gets mixed up with saliva. While this type of mouth alcohol may seem minimal, it certainly isn’t so minimal for a breath machine that is designed to measure the alcohol in a person’s breath, not saliva. What makes it worse is that police officers are known for requesting that you blow into a breathalyzer as hard as you can for as long as you can. Anyone who has played a trumpet or blown into a balloon knows what happens when you blow into something forcefully—saliva gets spit out. In the case of a DUI, the BAC measured can be many times higher due to the presence of mouth alcohol.

2. Rising BAC – depending on the length of time and amount of consumption, a person’s Blood Alcohol Level can continue to rise several hours after the last drink. For example, suppose it is 11pm and you just had your last drink and you are driving home, you could be at a 0.06%, but by 12am or 1am, when you are administered a chemical test at the police station, you may register a 0.09% or higher. In other words, the results obtained simply do not reflect your BAC at the time of driving.

3. Absorption – as mentioned above, what makes DUI illegal is the alcohol in the bloodstream that impairs the brain. The problem with breath machines is, it works by measuring BREATH and converting it to a BLOOD Alcohol reading. So if the “breath” reflects a 0.10% BAC, but the “blood” actually contains only a 0.03% BAC, then you can see how an innocent person gets convicted of DUI. The fact is, when a person is still absorbing alcohol and blows into a breathalyzer, the results will ALWAYS read higher, sometimes 3-5 times higher! The reason is, the person is still absorbing alcohol, a process that can take up to several hours especially if there is food in the stomach. During absorption, the alcohol consumed has not had sufficient time to fully enter the bloodstream, so the “breath” alcohol measured can be a far cry from the “blood” alcohol, which is what affects the brain. Remember that DUI statutes refer to “BLOOD Alcohol Level,” not breath!


Blood tests are generally more accurate than breath tests, because blood is measured directly and no conversion from breath is necessary. However, in addition to being vulnerable to the Rising BAC attack (see above), blood samples are often not maintained properly, and the results can be just as skewed. Consider the following: 1. Fermentation – after blood is drawn and put in a vial, Title XVII requires that an anticoagulant and a preservative be placed in the vial, which must then be shaken. The anticoagulant prevents the blood from clotting, and the preservative prevents fermentation, whereby the blood goes bad—much like sour milk —and the alcohol content multiplies. The problem is, most blood vials in DUI cases sit in the police station un-refrigerated for several weeks before someone even gets to the task of evaluating it. This is coupled with the fact that law enforcement is often unfamiliar with the requirements of Title XVII, and do a poor job documenting the chain of custody of the vial. This means that the BAC obtained from the “contaminated” sample can be much higher than the BAC of the same sample the day it was drawn from your arm!



Frequently Asked Questions

Are the statutory penalties to Resisting Arrest on top of the penalties for DUI?

A: They can be. Legally a person convicted of both DUI and Resisting Arrest can be penalized for both charges consecutively.

If I forcefully refused to have blood drawn from me at the police station, is that resisting arrest?

A: No. Usually by the time you have arrived at the station or hopsital for the blood draw, you have already been arrested. But that doesn’t mean you are immune from other potential charges (ie. assault).

What makes an arrest lawful?

A: An arrest is lawful if it is based on probable cause. In other words, the officer needs to have a reasonable suspicion that a crime has been committed before they can make a lawful arrest. If a person was arrested prematurely, before the officer has established (or has had enough time to establish) probable cause, there is no lawful arrest.

CONTACT LAW OFFICE OF JEFF YEHCall us today, e-mail us or leave a message

Get a free callback

    Please prove you are human by selecting the Heart.

    The Law Office of “The DUI Specialist” Jeff Yeh is proud to serve clients in all of Los Angeles, Ventura, Orange, San Diego, Riverside, and San Bernardino counties. The firm handles DUI and criminal cases in Torrance, Long Beach, South Bay, Downey, San Fernando, Santa Monica, Westminster, Santa Ana, Newport Beach, Hawthorne, Fullerton, Laguna Niguel, Alhambra, Hollywood, Yorba Linda, Redondo Beach, Manhattan Beach, Burbank, Pasadena, Santa Clarita, Valencia, Newhall, Whittier, West Covina, Calabasas, Garden Grove, Tustin, Foutain Valley, Anaheim, Inglewood, Buena Park, Cerritos, Lakewood, Los Alamitos, Bellflower, Norwalk, Chino, Carson, Redondo Beach, Orange County, Los Angeles County, San Diego County, Ventura County, Riverside County, San Bernardino County, El Monte, Manhattan Beach, Gardena, Compton, South Gate, La Puente, Pomona, Costa Mesa, San Clemente, Mission Viejo, Laguna Beach, San Pedro, Glendale, Beverly Hills, Culver City, Temple City, Westwood, Van Nuys, Woodland Hills, Encino, Sun Valley, La Canada, Altadena, Sierra Madre, Monrovia, Azuza, La Verne, Pomona, West Hollywood, Marina del Rey, Chatsworth, San Fernando, Orange, Placentia, La Crescenta, Corona, Bellflower, Rosemead, Montebello, San Dimas, Vernon, Monterey Park, San Gabriel, Diamond Bar, Sherman Oaks, Eagle Rock, Bel Air, Chino Hills, Brentwood, Simi Valley, Lancaster, Fontana, Riverside, Big Bear, Barstow, Indio, Murrieta, Blythe, and all other cities in Southern California.

    The information on this Los Angeles DUI Defense Attorney‘s / Lawyer’s website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. The only way to establish an attorney-client relationship with a criminal defense attorney or DUI lawyer is to sign a written retainer agreement and comply with its terms. 

    Copyright © Law Office of Jeff Yeh 2022