Offenses Against the State and Public Justice

ORS 162.315
Resisting arrest


(1)

A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.

(2)

As used in this section:

(a)

“Arrest” has the meaning given that term in ORS 133.005 (Definitions for ORS 133.005 to 133.400 and 133.410 to 133.450) and includes, but is not limited to, the booking process.

(b)

“Parole and probation officer” has the meaning given that term in ORS 181A.355 (Definitions for ORS 181A.355 to 181A.670).

(c)

“Resists” means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes, but is not limited to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to an officer. Passive resistance does not constitute behavior intended to prevent being taken into custody.

(3)

It is no defense to a prosecution under this section that the peace officer or parole and probation officer lacked legal authority to make the arrest or book the person, provided the officer was acting under color of official authority.

(4)

Resisting arrest is a Class A misdemeanor. [1971 c.743 §206; 1989 c.877 §1; 1997 c.749 §3; 2005 c.668 §2]

Notes of Decisions

Language of this section includes resisting arrest of another person, as well as resisting one's own arrest. State v. Brandon, 35 Or App 661, 582 P2d 52 (1978), Sup Ct review denied

This section is not unconstitutionally vague or overbroad. State v. Crane, 46 Or App 547, 612 P2d 735 (1980), Sup Ct review denied

Though this section defines "resist" in alternative forms, complaint charging defendant with resisting arrest in language of statute was sufficiently specific to survive demurrer. State v. Strandquist, 57 Or App 404, 644 P2d 658 (1982), Sup Ct review denied

Where arrested defendant's thrashing about was intended to help others resist her arrest, trial court did not err in denying defendant's motion for judgment of acquittal on resisting arrest charge. State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988)

Trial court properly denied motion for judgment of acquittal where evidence was sufficient for jury to find defendant's conduct was not passive but posed substantial risk of injury to others. State v. Hutchinson, 94 Or App 441, 765 P2d 248 (1988)

Former version of this section encompasses resistance both at precise moment one is placed under arrest and while en route to police station for booking. State v. Bolden, 104 Or App 356, 801 P2d 863 (1990), Sup Ct review denied

Specific exclusion of passive resistance from scope of statute prohibits local ordinance against hindering police officer by failing to leave area when given lawful order. City of Eugene v. Kruk, 128 Or App 415, 875 P2d 1190 (1994)

Passive resistance provision preempts local ordinance from enforcing police order to disperse. City of Portland v. Roth, 130 Or App 179, 880 P2d 967 (1994), Sup Ct review denied

Elements of offense are established by exertion of resistance in general without regard to what resistance is exerted against individual officers. State v. Owens, 159 Or App 80, 979 P2d 284 (1999), Sup Ct review denied

To constitute resisting arrest, behavior must be intended to resist custodial status. State v. Powell, 209 Or App 255, 147 P3d 933 (2006)

"Arrest" includes being taken into custody for violating parole. State v. McClure, 256 Or App 200, 300 P3d 210 (2013), aff'd 355 Or 704, 335 P3d 1260 (2014)

Where defendant did not know defendant was under arrest, defendant could not resist arrest because this section requires defendant to act intentionally to resist arrest and such conscious objective requires knowledge of arrest. State v. Olive, 259 Or App 104, 312 P3d 588 (2013)

As used in this section, "resisting arrest" means resisting "actual or constructive restraint" whether or not that restraint is for purpose of charging person with offense. State v. McClure, 355 Or 704, 335 P3d 1260 (2014)

Chapter 162

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021