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FEBRUARY 2017
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TriNews
IT’S THE LAW:
What is a
Lawful Order? By Richard L. Duquette, Esq., Justin M. Nelson, Esq
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As users of the road, bicyclists are not immune to police encounters. This article outlines the best practices for handling these situations. In my law practice, I have dealt with bicyclists and other defendants who have been charged with resisting arrest, obstructing a police officer, or other violations of Penal Code § 148. This provision states that anyone who “willfully resists, delays, or obstructs any… peace officer… in the discharge or attempt to discharge any duty” is guilty of a misdemeanor. There are a variety of ways to run afoul of this statute, some more serious than others. However, as a general principle, let’s be clear that it’s almost always a good idea to listen to a police officer and do what you are told—even if the officer is in the wrong. At that point, you’re better off arguing your case in court, not on the scene. In court, you have a chance to make your point and be heard. In a confrontation between you and a police officer on the street, you’re almost always going to lose.
So when an officer tells you to stop, tells you to show him your ID, or tells you to ride in one part of the road as opposed to another, it’s always in your interest to do what he says! If he is in the wrong, and if you get a citation, you may have to deal with that. But if he’s not wrong, and you ignore him, the encounter could turn from a minor inconvenience to a night or a weekend in jail very quickly.
Consensual Encounters vs. Detentions One critical distinction when it comes to resisting police officers is knowing whether you are in a consensual encounter or a detention situation. You are free to walk away from a consensual encounter, but not from a detention. When an continued on page 6