710-1026 Resisting arrest. (1) A person commits the offense of resisting arrest if the person intentionally prevents a law enforcement officer acting under color of the law enforcement officer's official authority from effecting an arrest by:

(a) Using or threatening to use physical force against the law enforcement officer or another; or

(b) Using any other means creating a substantial risk of causing bodily injury to the law enforcement officer or another.

(2) Resisting arrest is a misdemeanor. [L 1972, c 9, pt of 1; gen ch 1993; am L 2001, c 91, 4]

 

COMMENTARY ON 710-1026

 

Resisting arrest is one of the commonest forms of obstructing government operation. The Code deals specifically with resisting arrest out of a desire to confine the offense to forcible resistance that involves some substantial danger to the person. Mere non-submission ought not to be an offense. One who runs away from an arresting officer or who makes an effort to shake off the officer's detaining arm might be said to obstruct the officer physically,[1] but this type of evasion or minor scuffling is not unusual in an arrest, nor would it be desirable to make it a criminal offense to flee arrest. In this case the proper social course is to authorize police pursuit and use of reasonable force to effect the arrest. If the actor is captured, the actor may be convicted of the underlying offense. If conviction cannot be had, it would be a grave injustice to permit prosecution for an unsuccessful effort, by an innocent person, to evade the police.[2]

Note that the arrest may be either of the actor or of a third person: the social and individual harms involved are the same in either case. Moreover, it is no defense to a charge under this section that the officer was making an unlawful arrest, provided the officer was acting under color of law. American jurisdictions have almost universally rejected the common-law doctrine that it is permissible to resist an unlawful arrest with as much force as one has at one's disposal. In a well-ordered society, the evils involved in allowing such resistance far outweigh the infrequent and usually minor inconvenience of submitting to any arrest made under color of law and disputing it within the legal framework. The requirement that the arrest be made under color of the officer's official authority obviates the necessity for a separate section barring such a defense.

The previous Hawaii law penalizing interference with an arresting police officer was similar to this section of the Code, except that the former law did not require the use of force or the risking of bodily injury. The penalties are roughly the same.[3]

Cases of interference which do not involve force or risk of bodily injury, but which present serious social dangers are included under 710-1029 and 1030 as cases of hindering prosecution. This section of the Code is in accord with the Model Penal Code and with most recent state revisions in both definition and penalty.[4]

 

Case Notes

 

Resisting arrest statute not applicable where defendant's arrest was complete and defendant was in custody before fleeing police. 72 H. 360, 817 P.2d 1060 (1991).

Statutory references in oral charge did not cure the omission of essential elements in resisting arrest and assault against a police officer counts of the charge. 77 H. 309, 884 P.2d 372 (1994).

Mentioned: 9 H. App. 315, 837 P.2d 1313 (1992).

 

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710-1026 Commentary:

 

1. But see, 710-1010(2)(a) which limits 710-1010 (obstructing government operations) to non-arrest situations.

 

2. M.P.C., Tentative Draft No. 8, comments at 128-29 (1958).

 

3. H.R.S. 740-11.

 

4. M.P.C. 242.2; Prop. Mich. Rev. Cr. Code 4625; Prop. Pa. Cr. Code 2205.

 

 

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