Feb 10, 2015 In Virginia, the crime of resisting arrest requires flight
In Virginia, flight is an essential element for the crime of resisting arrest under Va. Code § 18.2-479.1, which says: "A. Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor.
"B. For purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave."
§ 18.2-479.1 (emphasis added).
Misreading the flight element of § 18.2-479.1, the City of Chesapeake Circuit Court, on appeal from the District Court, got the flight element wrong, and convicted Isiah David Joseph for misdemeanor resisting arrest under § 18.2-479.1, even though no evidence showed any flight. Fortunately, in the Court of Appeals, the prosecution admitted the Circuit Court’s error on this flight element, and the Court of Appeals reversed Mr. Joseph’s conviction, where he never fled, but instead kept pulling away when police were trying to handcuff him on open arrest warrants. Joseph v. Virginia, ___ Va. App. __ (Feb. 10, 2015). Joseph rests on statutory construction, and does not address Virginia’s misdemeanor statutes against people resisting or impeding police (as opposed to resisting arrest), Va. Code § 28.2-905, nor joint efforts to resist or obstruct the execution of legal process, Va. § 18.2-409.
Isiah Joseph’s appellate victory is a clear example of the necessity for criminal defense lawyers to seek victory in every way possible, including here where his lawyer(s) read and correctly interpreted the resisting arrest statute.