What is Resisting and Obstructing, MCL 750.81d?

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MCL 750.81d is a law that is commonly referred to as “R and O” or “Resisting and Obstructing”. This is a felony charge punishable by imprisonment for not more than 2 years or a fine of not more than $2,000 or both.

The actual name of this crime is “Assaulting, Battering, Resisting, Obstructing, Opposing Person Performing Duty.” This criminal charge encompasses 7 different areas:

  1. Assaulting a Police Officer.
  2. Battering a Police Officer.
  3. Wounding a Police Officer.
  4. Endangering a Police Officer.
  5. Obstructing a Police Officer.
  6. Opposing a Police Officer.
  7. Resisting a Police Officer.

To be found guilty of this charge only one of the above items needs to be conducted (you do not have to commit all 7 for a Resisting and Obstructing charge to be issued against you).

If you are charged with Resisting and Obstructing, the Prosecution must prove the “elements” of the offense beyond a reasonable doubt. The elements are:

First, you assaulted, battered, wounded, endangered obstructed, opposed or resisted a Police Officer. To obstruct a police officer includes the use or threatened use of physical force or a knowing failure to comply with a lawful command, such as “Stop, police!” If you are charged with resisting, you must have actually resisted by what you said or did, but physical violence or injury of the office is not necessary. For example, if an officer is trying to place handcuffs on you but you put your arm in the air so they can’t bring your hand behind your back to secure the handcuffs.

Second, that you knew or had reason to know that the person was a Police Officer performing their duties at the time.

(Michigan Jury Instructions 13.1)

The law enforcement officer does not have to be a police officer for you to be charged with this crime. You can be charged with Resisting and Obstructing a security officer of the department of the state, campus officer, DNR or DEQ, Federal Agent, Firefighter, EMT, paramedic, or search and rescue worker.

In Michigan, a charge of Resisting and Obstructing a Police Officer can be charged under the local ordinances as a misdemeanor, punishable by 1 year in County Jail or less, or it can be charged under the State law as a felony punishable by up to 2 years in Prison (MDOC). If you are charged by the State of Michigan, you are likely facing a felony charge. If you are charged by the local City, Township, or Village, through their Code of Ordinances, you may be facing a misdemeanor charge. Local municipalities lack the power to charge individuals with Resisting and Obstructing Felony charges; they can only charge misdemeanors.

Additionally, the crime of Attempt Resisting and Obstructing in Michigan is a misdemeanor with a penalty of up to 1 year in jail. An Attempt means you intended to commit the crime and took action beyond preparing for it. However, the crime could not be completed because of some interruptions. An attempt generally reduces the maximum possible penalty of incarceration by one-half. As for Resisting and Obstructing, the charge (not as an attempt), carries a maximum penalty of 2 years of incarceration. Therefore, the charge of Attempt Resisting and Obstructing carries a maximum penalty of 1-year incarceration. Offenses that have a maximum possible penalty of one year or less are misdemeanors.

It is important to understand that you cannot be charged with this offense of exercising your rights. Police are there to find reasons to arrest you and submit charges against you. Some officers take offense if an individual invokes their rights – such as your right to remain silent, your right to counsel, etc. This makes their job harder and can sometimes lead to officers claiming you resisted when you didn’t.

A few examples of your rights are as follows:

  1. Your right to remain silent. This is your Fifth Amendment Right. If you are under arrest you will likely hear your Miranda Warnings read to you. In that warning the police state that you have the right to remain silent. Use this right. Do not talk to the police if you are being investigated or arrested for a crime.
  2. Your right to resist an unlawful arrest. The Michigan Supreme Court made a ruling in 2012 in a case called People v. Moreno. This ruling determined that you have an absolute right to resist any unlawful police action, including arrest. If the police did not have a valid reason to arrest you in the first place, and you resisted their unlawful arrest, contact us today to discuss your legal options.
  3. Freedom of Speech. This is your First Amendment Right. In City of Houston Texas v Hill, The United States Supreme Court ruled that you have an absolute First Amendment right to criticize your government, including police officers. However, you need to tread carefully, you lose this right if your words become “fighting words” or “obscenity”.

Is jail time guaranteed? The short answer is, no. It is not a guarantee that you will go to jail if you are found guilty or plead guilty to a Resisting and Obstructing charge. The ultimate outcome of your case depends on the severity of your alleged actions, the defense(s) to the charges, and the effectiveness of your Criminal Defense Lawyer.

If you have been charged with Resisting and Obstructing, contact Tanis Schultz, PLLC today for a free confidential consultation with one of our experienced Grand Rapids Criminal Defense Attorneys to discuss your options.

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