Battery on an Officer of the peace charge

[legal_questioner]

What is the name of your state (only U.S. law)? California

While talking with a police officer, apparently some of the saliva got on his face. He told me I was spitting on him. I then replied, laughingly, that I was just talking to him and that I didn't spit on him at all. He then said I spit on him again and arrested me for battery of an officer of the peace. He then put me in the back of the vehicle. The next day (I had no clue what I was charged for), I found out I was also arrested for resisting arrest. I have no criminal history and plan on hiring a lawyer. It seems like I got really screwed over here and wondering what you think will happen. I see both of these crimes allow for jail time. After spending that night at county for 18 hours, I would really like to not go back. Do you think I will be convicted and if so will I see jail time?

Thanks

 

[CdwJava]

What is the name of your state (only U.S. law)? California

While talking with a police officer, apparently some of the saliva got on his face.

Really?? THAT's what your gonna go with?

I've heard that claim made a couple of times ... it usually doesn't fly, but you are welcome to give it a go. Maybe the officer had video or audio of the encounter?

No one can predict whether you will or will not be convicted. Maybe you will, maybe you will not. It is possible the DA may drop one or both charges ... it is possible that the DA might add additional ones. Perhaps there will be a plea offer to PC 148(a) (the resisting, obstructing or delaying charge). In any event, if the DA files you will have the opportunity to consult legal counsel.

 

[Zigner]

I've heard that claim made a couple of times ... it usually doesn't fly...

That's just...awesome!

 

[legal_questioner]

Really?? THAT's what your gonna go with?

I've heard that claim made a couple of times ... it usually doesn't fly, but you are welcome to give it a go. Maybe the officer had video or audio of the encounter?

No one can predict whether you will or will not be convicted. Maybe you will, maybe you will not. It is possible the DA may drop one or both charges ... it is possible that the DA might add additional ones. Perhaps there will be a plea offer to PC 148(a) (the resisting, obstructing or delaying charge). In any event, if the DA files you will have the opportunity to consult legal counsel.

I mean yeah that's what I'm going to go with, considering that is exactly what happened. I'm not looking for them to drop all the charges, but I would like to get it reduced and have to spend absolutely 0 time in jail. I'm conferring with a lawyer today to see what he thinks. If the cop puts I actually spit on him in the police report( which I"m sure is what he will do), this is gonna be a tough month for me. However, I do have three witnesses, including my friend who got some of the incident on video. The only problem is that they took his phone to the evidence room and now it may be gone forever. As for the officer, maybe we could look at his squad car camera which I would truly love to do.

 

[CdwJava]

Most police cars in CA are not equipped with video cameras. Some agencies provide personal video devices to their officers, and many officers carry their own audio device. I, personally, use a department-issued video camera that clips to my shirt and my own personal audio recorder.

You will know more at the arraignment.

 

[legal_questioner]

Most police cars in CA are not equipped with video cameras. Some agencies provide personal video devices to their officers, and many officers carry their own audio device. I, personally, use a department-issued video camera that clips to my shirt and my own personal audio recorder.

You will know more at the arraignment.

If the officer carries any audio/video equipment on him, I am sure he will not use it nor allow me to view it. This was really a case of a cop not liking me expressing my opinion to him. Granted I was drunk and loud and disrespectful, but none of those things are against the law. I don't know how you can interfere with a police officer's duty by simply standing and watching him issue a citation, but then again I don't know how they were able to arrest me either. I hope you work in a county that doesn't operate in this fashion.

 

[CdwJava]

If the officer carries any audio/video equipment on him, I am sure he will not use it nor allow me to view it.

Of course not as he cannot provide that to you. But, it can be obtained through discovery if it exists.

Though, I am certain your implication is that the officer would break the law and agency policy by destroying any such evidence should it exist. If that is what you believe, no one will be able to convince you otherwise.

This was really a case of a cop not liking me expressing my opinion to him. Granted I was drunk and loud and disrespectful, but none of those things are against the law.

Well, if the actions rise to the level of public intoxication, they can be. Causing a disturbance while under the influence of alcohol can get you tossed in the clink. And if your yelling, agitation, or other comments makes it difficult for the officer to safely or efficiently do his job, then that can result in a resisting/delaying/obstructing charge per PC 148(a). Obviously, I cannot say WHAT you did as i was not there, just letting you know what can happen.

 

[legal_questioner]

Of course not as he cannot provide that to you. But, it can be obtained through discovery if it exists.

Though, I am certain your implication is that the officer would break the law and agency policy by destroying any such evidence should it exist. If that is what you believe, no one will be able to convince you otherwise.

I'm not saying that he would destroy the evidence if it indeed existed. I'm simply saying that I wouldn't be able to get my hands on it if it did exist. And by arresting me for the charges of battery and resisting arrest, he already bent the law significantly, if not in fact breaking it.

Well, if the actions rise to the level of public intoxication, they can be. Causing a disturbance while under the influence of alcohol can get you tossed in the clink. And if your yelling, agitation, or other comments makes it difficult for the officer to safely or efficiently do his job, then that can result in a resisting/delaying/obstructing charge per PC 148(a). Obviously, I cannot say WHAT you did as i was not there, just letting you know what can happen.

For the most part, I don't really disagree. I probably deserved a drunk in public charge or a disturbing the peace violation. I think (hope) that eventually I will get my charges reduced to one of these lesser crimes. But if you are in law enforcement, maybe you can answer this. Are we not allowed to express our opinion to a police officer, even if we are loud and disrespectful, as long as we are not interfering with an arrest or causing danger to myself or others? What happened to freedom of speech? Are cops above the law in this regard?

 

[tranquility]

Of course not as he cannot provide that to you. But, it can be obtained through discovery if it exists.

Though, I am certain your implication is that the officer would break the law and agency policy by destroying any such evidence should it exist. If that is what you believe, no one will be able to convince you otherwise.

To prevent such things and help maintain the chain of evidence, Taser has introduced a camera that streams the data to the cloud. Well, not always, just once the button is pushed. The device constantly records but only has a buffer of 30 seconds. When activated, the prior 30 seconds gets sent along with the stream of video data. In at least one department I know of, the holdup (besides money, of course) is the officers themselves. Not because they are afraid of being "caught" at illegal acts, but because of the fear the video will be used by management for employee feedback.

 

[tranquility]

I'm not saying that he would destroy the evidence if it indeed existed. I'm simply saying that I wouldn't be able to get my hands on it if it did exist. And by arresting me for the charges of battery and resisting arrest, he already bent the law significantly, if not in fact breaking it.



For the most part, I don't really disagree. I probably deserved a drunk in public charge or a disturbing the peace violation. I think (hope) that eventually I will get my charges reduced to one of these lesser crimes. But if you are in law enforcement, maybe you can answer this. Are we not allowed to express our opinion to a police officer, even if we are loud and disrespectful, as long as we are not interfering with an arrest or causing danger to myself or others? What happened to freedom of speech? Are cops above the law in this regard?

Mmmm...a drunk guy yelling in your face close enough the spittle of his musings spray the officer. Can public service get any better? And, that's with the OP's story.

 

[CdwJava]

I'm not saying that he would destroy the evidence if it indeed existed. I'm simply saying that I wouldn't be able to get my hands on it if it did exist.

Your attorney could even if you could not. The police are under no legal obligation to release anything to you.

And by arresting me for the charges of battery and resisting arrest, he already bent the law significantly, if not in fact breaking it.

That was your interpretation. Clearly, the officer saw it otherwise ... now you may have to see how a DA sees it.

Are we not allowed to express our opinion to a police officer, even if we are loud and disrespectful, as long as we are not interfering with an arrest or causing danger to myself or others? What happened to freedom of speech? Are cops above the law in this regard?

You are allowed to express your opinions, but if you are doing so in such a way as to prevent the officer from doing his job, you can go to jail. If you were close enough for him to catch spittle and he was trying to write a cite, then I suspect you were close enough to be interfering. The officer is not required to engage or explain anything with you, and it is a safety issue if he finds himself distracted from the task at hand and there are multiple subjects (especially if inebriated) standing about. I will typically advise the person to step back at least 30 feet and if he refuses, I give a second warning ... after that, it's bracelets.

 

[TigerD]

CDW --

I will typically advise the person to step back at least 30 feet

Why 30 feet? Is that just an arbitrary number or is there a reason for 30 feet and not 25 or 40?

OP --

He then said I spit on him again and arrested me for battery of an officer of the peace. He then put me in the back of the vehicle. The next day (I had no clue what I was charged for), I found out I was also arrested for resisting arrest. ...I'm not looking for them to drop all the charges, but I would like to get it reduced and have to spend absolutely 0 time in jail.

OP: If you aren't looking for them to drop all the charges for battery of an officer and resisting arrest, then you admit there is something to the charge. You totally defeated your case there. Try not being a dick to cops. It is amazing all the people who have problems with police seem to have the same interactions with them. You will never win an argument with police officer on the street. Right or wrong, they can't afford to lose on the street. That's mean you will always lose.

DC

 

[Zigner]

CDW --

Why 30 feet? Is that just an arbitrary number or is there a reason for 30 feet and not 25 or 40?

I suspect Carl simply likes even numbers - and he hates the metric system.

 

[tranquility]

CDW --

Why 30 feet? Is that just an arbitrary number or is there a reason for 30 feet and not 25 or 40?

I believe that the general theory is that:

In the time it takes the average officer to recognize a threat, draw his sidearm and fire 2 rounds at center mass, an average subject charging at the officer with a knife or other cutting or stabbing weapon can cover a distance of 21 feet.

Carl may just want a little buffer since he is writing a citation and not just looking at the suspect.

Info edit:
Or, maybe, he's reading the literature:
http://www.policeone.com/edged-weapons/articles/102828-Edged-Weapon-Defense-Is-or-was-the-21-foot-rule-valid-Part-1/

 

[CdwJava]

Tranq is correct.

While 21 feet is the standard, 35 feet or more has been mentioned in some of the literature as being safer when the officer is not focused on a particular individual, or when the threat is active and moving. Having been attacked by yelling drunks before, I like to keep them as far back as I possibly can in order to give myself a better defensive zone. So, it's step back or you can be detained or arrested until I complete my transaction.