Resisting Arrest During a DUI Stop: Penalties and Defenses

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When someone is stopped for a DUI, the situation may compound if the individual resists arrest.

This can occur through physical actions like attempting to flee or more passive means such as refusing to exit the vehicle.

In Arizona, both charges—DUI and resisting arrest—carry their own set of consequences and are often stacked during prosecution. Being charged with resisting arrest adds a layer of severity to the case, making it punishable with additional fines, extended jail time, and more severe penalties beyond those associated with the DUI alone.

Arja Shah is an experienced criminal defense attorney who focuses on DUI and resisting arrest cases. If you or someone you know is facing these charges, a consultation with Arja Shah can help you better understand your legal rights and the steps you can take.

This article will cover the following topics:

What is Considered Resisting Arrest 

In Arizona, resisting arrest is defined under Arizona Revised Statutes (ARS) 13-2508. This statute outlines that a person commits resisting arrest by intentionally preventing or attempting to prevent a peace officer, acting under official authority, from effecting an arrest by either using or threatening to use physical force against the officer or another, or by using any other means creating a substantial risk of causing physical injury to the officer or another.

This can occur during a DUI stop if the individual attempts to flee, physically obstructs the officer, or fails to comply with the officer’s commands in a manner that poses a risk.

passive resistance in a dui arrest

Explaining Passive Resistance 

In the context of legal confrontations, particularly during DUI stops or other police encounters, the term “passive resistance” refers to non-violent actions or behaviors that impede a law enforcement officer’s attempt to make an arrest.

Under Arizona law, specifically outlined in Arizona Revised Statutes (ARS) 13-2508, resisting arrest can be deemed as passive resistance when the individual does not actively use force or threaten violence, but still creates a situation where the officer’s job is more difficult.


Examples of Passive Resistance:

  • Refusal to Walk: An individual may go limp or refuse to walk to the patrol car, requiring officers to carry or assist them physically.
  • Ignoring Verbal Commands: Deliberately ignoring or silently defying orders to place hands behind the back or to remain inside the vehicle during a DUI stop.
  • Holding onto an Object: Holding onto a car steering wheel, door, or another object to prevent being led away by the police.
  • Verbal Non-Cooperation: Responding to officers with silence or refusing to answer questions without explicitly threatening or using physical force.

Passive resistance is generally charged as a class 1 misdemeanor in Arizona.

This can result in penalties including fines, community service, probation, or up to six months in jail, depending on the case specifics and any previous criminal history. It’s important for individuals to understand that even passive resistance can escalate a legal situation, leading to additional charges beyond those originally faced during a DUI stop.

Can you Have Both a DUI and a Resisting Arrest Charge?

Yes, it is entirely possible for an individual to be charged with both driving under the influence (DUI) and resisting arrest in Arizona. These charges can arise from a single incident where the individual not only drives under the influence of alcohol or drugs but also engages in behavior that impedes the arresting officer’s efforts.

What are the Possible Penalties 

The penalties for resisting arrest and DUI charges in Arizona vary based on the severity of the offenses and any prior convictions. Here’s a breakdown of potential legal consequences:


Resisting Arrest:

    • Class 1 Misdemeanor: The most common charge for resisting arrest, which can include up to 6 months in jail, a fine of up to $2,500, and probation.
    • Class 6 Felony: If the resistance involves a weapon or serious physical harm, the charge can escalate to a felony, punishable by 1 to 5 years in prison.

DUI Charges:

    • First Offense DUI:
      • Minimum of 10 days in jail (9 days can be suspended upon completing a drug and alcohol screening)
      • A fine of approximately $1,250
      • Required to equip any vehicle operated with an ignition interlock device
      • Alcohol education or treatment program required
    • Extreme DUI (BAC of 0.15 to 0.19):
      • At least 30 days in jail
      • A fine of approximately $2,500
      • Ignition interlock device required
      • Increased insurance premiums
    • Super Extreme DUI (BAC of 0.20 or higher):
      • Minimum of 45 days in jail
      • A fine exceeding $3,200
      • Ignition interlock device for at least 18 months
      • Possible vehicle impoundment

Aggravated DUI:

    • Charged when the DUI is committed with a suspended or revoked license, with a passenger under 15 years old, or if it is the third DUI within 7 years.
    • Penalties include a minimum of 2 years in prison, loss of driving privileges for an extended period, and fines.

Useful Defense Strategies 

Below are several defense strategies that might be used in Arizona to address resisting arrest and DUI charges effectively:


Challenge the Lawfulness of the Stop

One primary defense strategy is to challenge the legality of the initial traffic stop. If the stop was made without probable cause or reasonable suspicion that a traffic violation or crime was being committed, then any evidence gathered during the stop, including observations of alleged DUI or resisting arrest, may be suppressed. This can potentially lead to a dismissal of the charges.


Question the Conduct of the Arrest

For resisting arrest charges, it’s important to look at the conduct of the arresting officers. Defense attorneys often look to prove that the officers did not act within legal bounds or failed to follow proper protocols, which can justify the defendant’s response that led to the resisting arrest charge. Body camera footage, dashcam videos, and witness statements can help in revealing inconsistencies or procedural errors.


Dispute the Evidence of DUI

Attacking the accuracy and handling of the blood alcohol content (BAC) tests or field sobriety tests is another common defense strategy. The reliability of breathalyzer tests can be questioned based on the device’s calibration and maintenance history or the administration procedure. Additionally, medical conditions, dietary factors, and other external influences can also be argued to have skewed the BAC results.


Demonstrate Lack of Intent to Resist

In cases of resisting arrest, demonstrating that there was no intent to resist can be a viable defense. This can involve showing that any physical contact or failure to comply was unintentional or a result of confusion, rather than an attempt to prevent the arrest. This strategy can be particularly effective in cases where the defendant is accused of passive resistance.


Offer Mitigating Circumstances

Presenting mitigating circumstances can also aid in the defense. For example, if the defendant was experiencing a medical emergency that affected their behavior or if they were unaware that they were dealing with a police officer, these factors could be used to lessen the severity of the penalties.


These defense strategies must be carefully considered and tailored to the specific facts of each case. A skilled defense attorney will evaluate all aspects of the incident to determine the most effective approach to defend against charges of DUI and resisting arrest

unlawful arrest in dui stop

What is an Unlawful Arrest

An unlawful arrest, often referred to in legal contexts as a false arrest, occurs when an individual is taken into custody by law enforcement without adequate legal justification, such as a valid warrant or sufficient probable cause.

In the context of DUI stops, this could mean being arrested on mere suspicion of driving under the influence without any concrete evidence.

Legal Framework and Consequences

  • Lack of Probable Cause: If the officer does not have a reasonable belief, supported by facts and circumstances, that the person has committed a crime, any arrest made could be considered unlawful.
  • Violation of Fourth Amendment Rights: The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, which includes unlawful arrests. An arrest without a warrant and lacking probable cause can be challenged as a violation of this constitutional right.
  • Consequences for Law Enforcement: Officers who conduct an unlawful arrest can face both civil and criminal penalties, and any evidence collected during or as a result of an unlawful arrest may be deemed inadmissible in court under the exclusionary rule.

Contact Criminal Defense Attorney Arja Shah

Arja Shah | Shah Law Firm For legal defense against DUI and resisting arrest charges in Phoenix, Scottsdale, Mesa, and Tempe, contact Arja Shah of Shah Law Firm, PLLC. Arja brings over 15 years of experience, with a strong focus on DUI cases and situations involving resisting arrest.

Her practice is dedicated to providing personalized legal services, ensuring each client receives individual attention. Arja’s compassionate approach, combined with her deep understanding of criminal law, has resulted in numerous successful defenses.

For consultations or more information on how Attorney Shah can assist you, visit Arja Shah Law or contact her office directly at (602) 560-7408

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