IC § 35-44.1-3-1. Resisting law enforcement.

(a) A person who knowingly or intentionally:

(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties;

(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or

(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop;

commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).

(b) The offense under subsection (a) is a:

(1) Level 6 felony if:

(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or

(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person;

(2) Level 5 felony if, while committing any offense described in subsection (a), the person operates a vehicle in a manner that causes serious bodily injury to another person;

(3) Level 3 felony if, while committing any offense described in subsection (a), the person operates a vehicle in a manner that causes the death of another person; and

(4) Level 2 felony if, while committing any offense described in subsection (a), the person operates a vehicle in a manner that causes the death of a law enforcement officer while the law enforcement officer is engaged in the officer’s official duties.

(c) If a person uses a vehicle to commit a felony offense under subsection (b)(1)(B), (b)(2), (b)(3), or (b)(4), as part of the criminal penalty imposed for the offense, the court shall impose a minimum executed sentence of at least:

(1) thirty (30) days, if the person does not have a prior unrelated conviction under this section;

(2) one hundred eighty (180) days, if the person has one (1) prior unrelated conviction under this section; or

(3) one (1) year, if the person has two (2) or more prior unrelated convictions under this section.

(d) Notwithstanding IC 35-50-2-2.2 and IC 35-50-3-1, the mandatory minimum sentence imposed under subsection (c) may not be suspended.

(e) If a person is convicted of an offense involving the use of a motor vehicle under:

(1) subsection (b)(1)(A), if the person exceeded the speed limit by at least twenty (20) miles per hour while committing the offense;

(2)  subsection (b)(2); or

(3) subsection (b)(3);

the court may notify the bureau of motor vehicles to suspend or revoke the person’s driver’s license and all certificates of registration and license plates issued or registered in the person’s name in accordance with IC 9-30-4-6(b)(3) for the period described in IC 9-30-4-6(d)(4) or IC 9-30-4-6(d)(5). The court shall inform the bureau whether the person has been sentenced to a term of incarceration. At the time of conviction, the court may obtain the person’s current driver’s license and return the license to the bureau of motor vehicles.

(f) A person may not be charged or convicted of a crime under subsection (a)(3) if the law enforcement officer is a school resource officer acting in the officer’s capacity as a school resource officer.

Notes

– Most of the resist cases that you deal with are simple misdemeanor cases, resist by force or resist by flight.

– Sometimes you will get resist by flight in a vehicle. These are generally not high speed chases. In the majority of resist by flight with a vehicle cases, the defendant actually drives very slowly and for a very short distance, maybe just a few blocks. This is normally because the individual is trying to hide or swallow drugs and is just trying to buy some time before the stop.

– At common law, resisting arrest cases (either by flight or by force), could be fought on the grounds that the underlying arrest was illegal. This defense has been chipped away at, but has not been eliminated.  

Who Qualifies as a Law Enforcement Officer

– For purposes of resisting law enforcement, a law enforcement officer includes an alcoholic beverage enforcement officer and a conservation officer of the department of natural resources. Taylor v. State, 659 N.E.2d 1054 (Ind. App. 1995) (decided under former IC 35-44-3-3).

– Where defendant was arrested by park ranger, his conviction for resisting law enforcement was vacated because IC 9-13-2-92, IC 35-41-1-17 and IC 14-9-8-1, all of which define law enforcement officer, do not include park ranger, indicating that park ranger is not law enforcement officer as matter of law. Walker v. State, 813 N.E.2d 339 (Ind. App. 2004) (decided under former IC 35-44-3-3).

– There was sufficient evidence that officer was police officer to support conviction of defendant for resisting law enforcement; although officer was working off-duty security at time of incident, officer was trained as police officer and had been police officer for 10 years.  Harris v. State, 831 N.E.2d 848 (Ind. App. 2005) (decided under former IC 35-44-3-3).

– In a case involving resisting a law enforcement officer, due to a reluctance to blur the fine U.S. Const., amend. IV line between school discipline and law enforcement duties by allowing the same officer to switch hats between a disciplinary role allowing a warrantless search and then to a law enforcement role in making an arrest, it was suggested that the Indiana Legislature consider expanding IC 35-44.1-3-1 to apply to forcible resistance, obstruction, or interference with a law enforcement, school liaison, or school resource officer or to a person assisting the officer while the officer was engaged in the execution of the officer’s duties. K.W. v. State, 984 N.E.2d 610 (Ind. 2013).

When Can You Resist?

– Defendant had a privilege to resist the officer where the force the officer used against defendant was objectively unreasonable and unconstitutionally excessive. Shoultz v. State, 735 N.E.2d 818, (Ind. App. 2000). (decided under former IC 35-44-3-3).

– There are circumstances where unlawful warrantless instrusion into the home creates a privilege to resist, and punishment of such resistance is therefore improper. Although the common law right to resist arrests in public places has been abrogated, the right to offer reasonable resistance to an unlawful entry has not. Casselman v. State, 472 N.E.2d 1310, (Ind. App. 1985).

– Although a citizen had the right to resist an unlawful entry by police into his home, the warrantless entry by deputy was justified by exigent circumstances. Alspach v. State, 755 N.E.2d 209, (Ind. App. 2001) (decided under former IC 35-44-3-3).

– Right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment, U.S. Const., amend. IV, jurisprudence. Therefore, a trial court did not err by refusing to instruct the jury on such in a resisting arrest case, and sufficient evidence supported defendant’s convictions for resisting arrest and battery on a law enforcement officer since defendant did not dispute his struggle with officers or that he shoved an officer attempting to enter an apartment. This case got a lot of media attention, and Judges are mindful of that. Opponents of the decision pointed out that under this ruling, no matter what the facts are, any illegal entry into a home by a police officer can not be interfered with.Barnes v. State, 946 N.E.2d 572 (Ind. 2011) (decided under former IC 35-44-3-3).

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