Resisting and Obstructing (R&O) Charge: What To Do About The Preliminary Exam

If you are facing a Michigan Resisting and Obstructing Charge (R&O), You Need to Read This . . . 

If you're a Michigan citizen who's facing a a charge of Resisting and Obstructing a Police Officer, also known by several other names, such as Assault on a Police Officer, R&O (for short), Resisting a Police Officer, or Resisting Arrest, you have some very basic initial choices to make that will greatly impact the overall outcome of your case - not the least of which is who will be your Michigan Resisting and Obstructing lawyer and what type of Bond conditions they can get you at the Arraignment.  But the next big decision you will make in defending against your R&O charge is whether or not to "hold" or "waive" the Preliminary Examination, which is the next Court date in the local District Court after the Arraignment.

Some District Courts, such as the 36th District Court in Detroit, the 34th District Court in Romulus, and the 53rd District Court in Howell schedule Pre-Exam Conferences in Resisting and Obstructing cases, but most do not.

At The Law Office of Brian J. Prain, PLLC, we zealously defend our clients' rights against Michigan R&O charges.  A Michigan Resisting and Obstructing charge (or Assault on a Police Officer, or Resisting Arrest, whatever the prosecutor chooses to call it in the Felony Complaint and Warrant) is a felony assault charge, meaning that it is punishable by more than 1 year of incarceration; actually, it carries a maximum of 2 years in the State Prison.  In-fact, Michigan's Resisting and Obstructing law, MCL 750.81d(1), reads like this (in relevant part):

" ... an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both."

RELATED: Resisting and Obstructing (R&O) in Michigan: Can I Beat the Charges?

Because a Michigan Resisting and Obstructing charge under MCL 750.81d(1) is a felony charge falling into the general category of assault crimes, you have a statutory right to a Preliminary Examination.  A Preliminary Examination is like a "mini-trial," where the Prosecutor must call witnesses to testify and admit other evidence in front of the District Court Judge (there is no Jury at the Preliminary Exam) sufficient to prove two things: 1) there is probable cause to believe that the crime of Resisting and Obstructing was committed; and 2) that there is probable cause to believe that you are actually the person who committed that Resisting and Obstructing.  Probable cause is a low standard - much lower than the proof beyond a reasonable doubt that would be necessary to convict you at Trial.

After you have already been arraigned, you will next face the decision of whether to exercise your right to force the Prosecutor to prove those two things, or whether to give up that right, which is called "waiving" your Preliminary Exam.  As I have stressed in my other posts relative to other Michigan assaultive charges, when you waive your Preliminary Exam, you are essentially admitting that there is probable cause to believe that the R&O was committed and that you committed it.  When this happens, your case is "bound over" to the Circuit Court for your county for further proceedings heading toward Trial.

In our experience, the State of Michigan often likes to charge the accused with multiple "counts" of R&O based on how many police officers were at the scene or were immediately involved with you.  For instance, if you are arrested and handcuffed by two officers at the same time, and the officers allege that you "tensed-up" or physically resisted in some way, you may be charged with two "counts" of Resisting and Obstructing - one for each officer with his or her hands on you.  Add another (unnecessary) officer at their own discretion who decides to come over and "assist" in your arrest, and you may have 3 counts, and so on . . .

As you can see, these multiple Michigan Resisting & Obstructing charges can get out of hand pretty quick with little or no additional action or reaction on your part!  Also, take a look at MCL 750.81d(2), which reads:

"[a]n individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties causing a bodily injury requiring medical attention or medical care to that person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both."  

So, if one of these 3 officers somehow gets a cut requiring stitches while they're taking you to the concrete, your maximum exposure to State Prison time for R&O will double.  Also, if you are accused of actually Assaulting Police (as opposed to just Resisting Arrest), there is a special law that says the Court can make your sentences for the multiple counts run consecutively, rather than concurrent.  Therefore, in the 3 officer situation, a 2 year prison max can become a 6.

And the time to fight these difficult risk-increasing factors, get the testimony on the record, and attack the Prosecution's evidence in this regard is at the Preliminary Exam.  In short, at The Law Office of Brian J. Prain, PLLC, we generally hold Preliminary Exams and force the Prosecution to prove every little thing they have to prove!  That means meticulous preparation - we research every piece of evidence in the case and pre-write every single cross-examination question for the Prosecution's witnesses.  Only this type of representation at your Resisting and Obstructing Preliminary Examination can result in getting one or more of your R&O charges dropped or reduced to a lessor charge, such as simple Misdemeanor Assault and Battery, etc.

Be cautious: there are some attorneys out there who will attempt to "counsel" you that you should give up ("waive") your Preliminary Examination in your Resisting and Obstructing charge.  They will tell you this on the grounds that if you hold your Preliminary Examination, that the Prosecution will "up your charges" as punishment, based on "new evidence" against you that comes out at the Preliminary Examination.  The truth is that the Prosecution has access to the witnesses, and if they really had the evidence, you'd already be charged with the more serious crime.

Now, there ARE R&O cases where there is evidence against you that the Prosecutor doesn't know about (that you and I may know about), and we don't want it to come out at the Preliminary Examination for fear that the charges could be increased, legitimately.  But you need to know that your decision to waive the Preliminary Examination in your Resisting and Obstructing case is motivated by these legitimate concerns, rather than the laziness of some attorney.  How will you know the difference?  Call The Law Office of Brian J. Prain, PLLC for a free consultation!  You'll leave more informed and confident about facing your Resisting and Obstructing charges.


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