§710-1026  Resisting arrest.  (1)  A
person commits the offense of resisting arrest if the person intentionally
prevents a law enforcement officer acting under color of the law enforcement
officer's official authority from effecting an arrest by:



(a) Using or threatening to use physical force
against the law enforcement officer or another; or



(b) Using any other means creating a substantial risk
of causing bodily injury to the law enforcement officer or another.



(2)  Resisting arrest is a misdemeanor. [L
1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4]



 



COMMENTARY ON §710-1026



 



  Resisting arrest is one of the commonest forms of obstructing
government operation.  The Code deals specifically with resisting arrest out of
a desire to confine the offense to forcible resistance that involves some
substantial danger to the person.  Mere non-submission ought not to be an
offense.  One who runs away from an arresting officer or who makes an effort to
shake off the officer's detaining arm might be said to obstruct the officer
physically,[1] but this type of evasion or minor scuffling is not unusual in an
arrest, nor would it be desirable to make it a criminal offense to flee
arrest.  In this case the proper social course is to authorize police pursuit
and use of reasonable force to effect the arrest.  If the actor is captured,
the actor may be convicted of the underlying offense.  If conviction cannot be
had, it would be a grave injustice to permit prosecution for an unsuccessful
effort, by an innocent person, to evade the police.[2]



  Note that the arrest may be either of the actor or of a third
person:  the social and individual harms involved are the same in either case. 
Moreover, it is no defense to a charge under this section that the officer was
making an unlawful arrest, provided the officer was acting under color of law. 
American jurisdictions have almost universally rejected the common-law doctrine
that it is permissible to resist an unlawful arrest with as much force as one
has at one's disposal.  In a well-ordered society, the evils involved in
allowing such resistance far outweigh the infrequent and usually minor
inconvenience of submitting to any arrest made under color of law and disputing
it within the legal framework.  The requirement that the arrest be made under
color of the officer's official authority obviates the necessity for a separate
section barring such a defense.



  The previous Hawaii law penalizing interference with an
arresting police officer was similar to this section of the Code, except that
the former law did not require the use of force or the risking of bodily
injury.  The penalties are roughly the same.[3]



  Cases of interference which do not involve force or risk of
bodily injury, but which present serious social dangers are included under
§§710-1029 and 1030 as cases of hindering prosecution.  This section of the
Code is in accord with the Model Penal Code and with most recent state
revisions in both definition and penalty.[4]



 



Case Notes



 



  Resisting arrest statute not applicable where defendant's
arrest was complete and defendant was in custody before fleeing police.  72 H.
360, 817 P.2d 1060.



  Statutory references in oral charge did not cure the omission
of essential elements in resisting arrest and assault against a police officer
counts of the charge.  77 H. 309, 884 P.2d 372.



  Mentioned:  9 H. App. 315, 837 P.2d 1313.



 



__________



§710-1026 Commentary:



 



1.  But see, §710-1010(2)(a) which limits §710-1010
(obstructing government operations) to non-arrest situations.



 



2.  M.P.C., Tentative Draft No. 8, comments at 128-29 (1958).



 



3.  H.R.S. §740-11.



 



4.  M.P.C. §242.2; Prop. Mich. Rev. Cr. Code §4625; Prop. Pa.
Cr. Code §2205.