Defending NJ 2C:29-2. Resisting arrest.
After you read the following NJ Criminal Statute (Resisting arrest, eluding officer) you may decide that you need the help of a lawyer, or need a legal interpretation of how this statute applies to your case. The firm of Villani & DeLuca has experienced criminal lawyers with over 20 years of experience, including a former municipal prosecutor. Call the number above for a free 24×7 phone consultation or read more about the resisting arrest charge.
What is Resisting Arrest?
New Jersey Statute 2C:29-2 covers three distinct but related offenses: (1) Resisting Arrest – Flight not Alleged, (2) Resisting Arrest – Flight Alleged and (3) Eluding an Officer. Under the “Flight not Alleged” section of the statute, you may be charged if you purposely prevent or attempt to prevent a police officer from arresting. This can be done by using violence or threatening to use violence against the officer, or if you create a risk of substantial harm.
Under the “Flight Alleged” section of the statute, you will be charged if you take flight from the officer by using physical force or the threat of physical force or you create a risk of substantial harm. Taking flight will bump the charge from a disorderly persons offense to a 4th degree criminal offense.
The third and most serious offense is contained in the “Eluding an Officer” section of the statute. If a person, while in a motor vehicle, attempts to elude the police officer after the motorist was signaled to stop, he may be charged with and convicted of a 3rd degree criminal offense. If the behavior created a risk of serious injury or death to the officer, it may be charged as a 2nd degree criminal offense.
How the Prosecutor will Prove the Case
In order to convict you under the “Flight not Alleged” section of the statute, he or she must prove 4 elements beyond a reasonable doubt: (1) the person attempting the arrest was a law enforcement officer; (2) that particular officer was the one attempting the arrest; (3) the defendant knew or had reason to know that the officer attempting the arrest was a law enforcement officer; (4) the defendant purposely prevented or attempted to prevent the officer from affecting the arrest.
For the “Flight Alleged” statute, the prosecutor must show the previous four elements and that they were completed with the intent to take flight or escape from the officer. As previously mentioned, taking flight will increase the charge from a disorderly persons offense to a 4th degree criminal offense. If you are being charged with eluding, the prosecutor must prove 6 elements for a 3rd degree criminal offense, and 7 elements for a 2nd degree criminal offense.
For the 3rd degree offense, the prosecutor must prove: (1) the defendant was operating a motor vehicle or water vessel on a NJ highway or waterway; (2) the person attempting to affect the stop was a police officer; (3) the officer signaled the defendant to stop; (4) the defendant knew that the officer was signaling a stop; (5) the defendant knew that the official was a police officer; and (6) the defendant knowingly fled or attempted to elude the officer. For the 2nd degree offense, the prosecutor must show all of the above AND (7) that the flight or attempt to elude created a serious risk of death or injury.
How to Defend Resisting Arrest Charges
The most effective way to defend against these charges is by refuting any element of the offense. By doing so effectively, the prosecutor will not be able to prove the offense was committed in violation of a NJ statute. For example, if you did not know that the police officer was in fact a police officer because he was in plain clothes and did not indicate to you that he was a law enforcement official, that element will not be proven and the charge will fail. Each case is unique and will require the analysis of an experienced criminal defense attorney. You should not plead guilty to these charges without first consulting a lawyer.
What Penalties do I Face for Resisting Arrest?
You may face a range of penalties, depending on which section of the statute you are convicted under. If you were charged with a disorderly persons offense, you may face a fine of up to $1,000, possible jail time, possible community service, possible restitution, and possible probation. If you are convicted of a 4th degree criminal offense you may face a fine of up to $10,000, up to 18 months in jail, possible restitution, possible community service, and possible probation.
If the crime you are convicted of is a crime of the 3rd degree, you can face between 3 and 5 years in prison, up to a $15,000 fine, community service, probation, and possibly restitution. For a crime of the 2nd degree, you may face a fine of up to $150,000, prison time of between 5 and 10 years, probation, community service and possible restitution. Again, simply do not plead guilty to these charges, as they have long lasting effects. Consult with an experienced criminal attorney to go over the facts of your case with you in detail.
NJ Statute: 2C:29-2. Resisting arrest, eluding officer
(1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:
(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or
(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.
It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.
b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person’s driver’s license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver’s licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver’s or vessel operator’s license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person’s non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
AKA: NJ Criminal Charge 2C:29-2, Violation 2C:29-2, Offense 2C:29-2
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Disclaimer: A copy of this statute has been provided for your information. This wording was current from the NJ website lis.njleg.state.nj.us as of August 2012.