§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 (1991).
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 (1994).
Mentioned: 9 H. App. 315, 837 P.2d 1313 (1992).
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§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.
Structure Hawaii Revised Statutes
710. Offenses Against Public Administration
710-1000 Definitions of terms in this chapter.
710-1010 Obstructing government operations. §710-1010 Commentary:
710-1010.5 Interference with reporting an emergency or crime.
710-1011 Refusing to aid a law enforcement officer. §710-1011 Commentary:
710-1012 Refusing to assist in fire control. §710-1012 Commentary:
710-1013 Compounding. §710-1013 Commentary:
710-1014 Rendering a false alarm. §710-1014 Commentary:
710-1014.5 Misuse of 911 emergency telephone service.
710-1015 False reporting to law-enforcement authorities. §710-1015 Commentary:
710-1016 Impersonating a public servant. §710-1016 Commentary:
710-1016.5 REPEALED. L 1987, c 130, §2.
710-1016.6 Impersonating a law enforcement officer in the first degree.
710-1016.7 Impersonating a law enforcement officer in the second degree.
710-1017 Tampering with a government record. §710-1017 Commentary:
710-1017.5 Sale or manufacture of deceptive identification document; penalties.
710-1018 Securing the proceeds of an offense. §710-1018 Commentary:
710-1019 Destroying or defacing official notices; penalty.
710-1020 Escape in the first degree.
710-1021 Escape in the second degree. § §710-1020 And 710-1021 Commentary:
710-1022 Promoting prison contraband in the first degree.
710-1023 Promoting prison contraband in the second degree. § §710-1022 And 710-1023 Commentary:
710-1024 Bail jumping in the first degree.
710-1025 Bail jumping in the second degree.
710-1026 Resisting arrest. §710-1026 Commentary:
710-1026.9 Resisting an order to stop a motor vehicle in the first degree.
710-1027 Resisting an order to stop a motor vehicle in the second degree.
710-1028 Hindering prosecution; definition of rendering assistance.
710-1029 Hindering prosecution in the first degree.
710-1030 Hindering prosecution in the second degree. § §710-1028 To 710-1030 Commentary:
710-1031 Intimidating a correctional worker.
710-1040 Bribery. §710-1040 Commentary:
710-1061 False swearing in official matters.
710-1063 Unsworn falsification to authorities. § §710-1060 To 710-1063 Commentary:
710-1064 Retraction. §710-1064 Commentary:
710-1065 Inconsistent statements. §710-1065 Commentary:
710-1066 No prosecution based on previous denial of guilt. §710-1066 Commentary:
710-1067 Corroboration. §710-1067 Commentary:
710-1068 Irregularities no defense. §710-1068 Commentary:
710-1069 Misrepresenting a notarized document in the first degree.
710-1069.5 Misrepresenting a notarized document in the second degree.
710-1070 Bribery of or by a witness. §710-1070 Commentary:
710-1071 Intimidating a witness.
710-1072 Tampering with a witness. §710-1072 Commentary:
710-1072.2 Retaliating against a witness.
710-1072.5 Obstruction of justice.
710-1073 Bribery of or by a juror.
710-1074 Intimidating a juror.
710-1075 Jury tampering. § §710-1073 To 710-1075 Commentary:
710-1075.5 Retaliating against a juror.
710-1076 Tampering with physical evidence. §710-1076 Commentary: