Resisting or obstructing an officer is usually not the reason the police came. It is what the complaint says happened once they arrived — a count added to the case rather than the case itself. And because the statute’s definition of “obstructs” reaches words as well as hands, people are charged with it who never touched anyone.
The charge lives at Wis. Stat. § 946.41, and the whole of it turns on four elements and one word.
What the State actually has to prove
Section 946.41 (1) provides that, except as provided in subs. (2m) and (2r), “whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority is guilty of a Class A misdemeanor.”
Read that slowly, because there are four separate requirements packed into one sentence: the defendant acted knowingly; the conduct was resisting or obstructing; the person obstructed was an officer; and that officer was acting both in an official capacity and with lawful authority.
“Officer” is defined narrowly in sub. (2) (b): a peace officer, or other public officer or public employee, “having the authority by virtue of the officer’s or employee’s office or employment to take another into custody.” Not every public employee qualifies. The custody authority is the test.
And the knowledge element reaches further than most people assume. The State must prove that the accused knew the officer was acting in an official capacity and knew the officer was acting with lawful authority. State v. Lossman, 118 Wis. 2d 526, 348 N.W.2d 159 (1984). That is two separate states of mind about the officer, not merely an intent to be difficult.
“Obstructs” is much broader than it sounds
Subsection (2) (a) defines the term: “Obstructs” includes without limitation “knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process.”
Note what that does. No physical act is required. Knowingly providing false information with intent to mislead is obstruction as a matter of law. State v. Caldwell, 154 Wis. 2d 683, 454 N.W.2d 13 (Ct. App. 1990). Fleeing and hiding from an officer may also constitute obstructing. State v. Grobstick, 200 Wis. 2d 242, 546 N.W.2d 187 (Ct. App. 1996).
And there is no exculpatory-denial exception. The Wisconsin Supreme Court has held that the statute criminalizes all false statements knowingly made and with intent to mislead the police — while adding that the State should have sound reasons for believing that a defendant knowingly made false statements with intent to mislead, and not out of a good-faith attempt to defend against an accusation, because the latter can never include the former. State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315.
The practical translation is unwelcome but worth hearing: “I wasn’t there” is not protected merely because it was said by a frightened person about his own conduct. The protection in Reed is a limit on charging judgment, not an element the defense gets for free.
But silence is not a crime
Here is the other half, and it is the half people most need to know. The annotations to § 946.41 in the certified statutes record Henes v. Morrissey, 194 Wis. 2d 338, 533 N.W.2d 802 (1995), as holding that no law allows officers to arrest for obstruction on a person’s refusal to give the person’s name, and that mere silence is insufficient to constitute obstruction.
So the line, under Wisconsin law, falls between saying nothing and saying something false. Declining to answer is not obstruction. Inventing an answer is.
One qualification matters, because it catches people in cars. If you are driving, § 343.18 (1) requires every licensee to have the license document in immediate possession at all times when operating a motor vehicle and to display it on demand from any judge, justice, or traffic officer. A violation of that subsection carries a forfeiture of not more than $200 under § 343.18 (3) (a) — and the courts have recognized a public interest in permitting police to request a motorist’s license and run a status check on it. State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990). The right not to volunteer information is not a right to refuse to produce a driver’s license at a traffic stop.
“Lawful authority” is where these cases are won
The most useful words in the statute are the last two of the element: the officer must have been acting with lawful authority. The Supreme Court has held that “lawful authority,” as that term is used in sub. (1), requires that police conduct be in compliance with both the federal and state constitutions, in addition to any applicable statutes. State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187.
That makes the lawfulness of the stop, the entry, or the arrest an element of the charge and not merely a suppression question. If the detention was unconstitutional, the officer was not acting with lawful authority, and an element of § 946.41 is missing.
For arrests, the statutory grounds are in § 968.07 (1): a warrant commanding the arrest; reasonable grounds to believe a warrant has issued in this state; reasonable grounds to believe a felony warrant has issued in another state; or reasonable grounds to believe the person is committing or has committed a crime. Section 968.07 (2) adds that an officer making a lawful arrest may command the aid of any person, who then has the same power as the officer — which is the hinge for the separate offense discussed below.
This is also why an obstructing charge and a motion to suppress so often travel together. The same constitutional defect can both exclude the evidence and negate the element.
The penalties, and the three ways this becomes a felony
A straight violation of sub. (1) is a Class A misdemeanor. Under § 939.51 (3) (a), that carries a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both. It is the most serious misdemeanor class Wisconsin has.
Three subsections move the charge into felony territory.
- Injury to the officer. Section 946.41 (2r): whoever violates sub. (1) “and causes substantial bodily harm or a soft tissue injury to an officer” is guilty of a Class H felony — a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both, under § 939.50 (3) (h). Pay attention to the second trigger. Sub. (2) (c) defines “soft tissue injury” as “an injury that requires medical attention to a tissue that connects, supports, or surrounds other structures and organs of the body,” and the definition expressly includes tendons, ligaments, fascia, skin, fibrous tissues, fat, synovial membranes, muscles, nerves, and blood vessels. That is a low threshold, and it is the provision that turns a scuffle into a felony. (“Substantial bodily harm” is separately defined in § 939.22 (38).)
- Great bodily harm. Section 946.41 (2t): causing great bodily harm to an officer is a Class G felony — a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both, under § 939.50 (3) (g). “Great bodily harm” is defined in § 939.22 (14) as “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.”
- False evidence that convicts an innocent person. Section 946.41 (2m) is the rarest and the most specific. It is a Class H felony only where all three of its circumstances are present: the violator gives false information or places physical evidence with intent to mislead an officer; at a criminal trial the trier of fact considers that false information or physical evidence; and the trial results in the conviction of an innocent person. All three, or it is not sub. (2m).
A felony conviction also changes how the sentence itself is structured. Under § 973.01 (1), a court that sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999 must, except as provided in sub. (3), impose a bifurcated sentence — which § 973.01 (2) defines as a term of confinement in prison followed by a term of extended supervision — rather than a single jail term. The difference between a felony and a misdemeanor in Wisconsin is not only duration.
One further provision is easy to miss. Section 946.41 (3) creates civil liability: a person who by violating the section hinders, delays, or prevents an officer from properly serving or executing any summons or civil process “is civilly liable to the person injured for any actual loss caused thereby and to the officer or the officer’s superior for any damages adjudged against either of them by reason thereof.” A criminal acquittal does not dispose of that exposure.
The neighboring charges that get confused with this one
Four other Wisconsin offenses occupy the same ground, and the distinctions are worth knowing because the classifications are very different.
Refusing to aid an officer — § 946.40 (1). Whoever, without reasonable excuse, refuses or fails, upon command, to aid any person known to be a peace officer is guilty of a Class C misdemeanor: a fine not to exceed $500 or imprisonment not to exceed 30 days, or both, under § 939.51 (3) (c). Sub. (2) provides that the section does not apply if, under the circumstances, the officer was not authorized to command the assistance.
Failure to comply with an attempt to take you into custody — § 946.415. This is a Class I felony (a fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both, under § 939.50 (3) (i)), and it requires the intentional presence of all three of its elements: refusing to comply with an officer’s lawful attempt to take the person into custody; retreating or remaining in a building or place and, through action or threat, attempting to prevent the officer from doing so; and, while acting under both, remaining or becoming armed with a dangerous weapon or threatening to use one, regardless of whether the person actually has one. The Court of Appeals has described this as delineating one crime — an armed, physical refusal to be taken into custody. State v. Koeppen, 2000 WI App 121, 237 Wis. 2d 418, 614 N.W.2d 530.
Fleeing an officer in a vehicle — § 346.04 (3). This is not an obstructing charge at all and it is far more serious than most people expect. Knowingly fleeing or attempting to elude an officer by willful or wanton disregard of a signal, so as to interfere with or endanger the operation of the police vehicle, the officer, other vehicles, or pedestrians — or increasing speed or extinguishing the vehicle’s lights to elude or flee — is a Class H felony under § 346.17 (3) (a). It escalates with consequences: a Class G felony if the violation results in bodily harm or property damage to another under sub. (3) (b); a Class E felony for great bodily harm under sub. (3) (c), with a mandatory confinement portion of not less than one year and 6 months; and a Class D felony if the violation results in death, under sub. (3) (d), with a mandatory confinement portion of not less than 2 years and 6 months.
Failing to stop promptly — § 346.04 (2t). The lesser vehicle offense: knowingly resisting an officer by failing to stop as promptly as safety reasonably permits after a signal to stop. Under § 346.17 (2t) that carries a fine of not more than $10,000 or imprisonment for not more than 9 months, or both. Section 346.04 (4) is worth knowing: sub. (2t) is not an included offense of sub. (3), but a person may not be convicted of violating both for acts arising out of the same incident or occurrence.
Why the charge appears when it does
Obstructing is frequently charged alongside whatever brought the officer out, and it has the same structural effect as bail jumping: it adds a count that does not depend on the merits of the original allegation. A client can be acquitted of the underlying offense and convicted of obstructing the investigation into it, because the elements are independent.
That is also the reason the charge is worth taking seriously rather than treating as the small one on the page. A Class A misdemeanor conviction is a criminal conviction, and in the felony subsections the exposure is measured in years.
What this means practically
Say less, not more, and do not improvise. The gap between Henes and Caldwell is the gap between declining to answer and giving a false answer, and it is the difference between no charge and a Class A misdemeanor. If you are driving, produce the license; § 343.18 (1) requires it.
Preserve the lawfulness question. Because Ferguson makes constitutional compliance part of “lawful authority,” the stop and the arrest are not background in an obstructing case — they are an element. Squad video, body-camera footage, and the dispatch log are the evidence that decides it, and they should be requested immediately.
Get the medical records in any case charged under sub. (2r). The felony turns on whether an injury “requires medical attention” within the sub. (2) (c) definition. What the officer reported and what the treatment record shows are not always the same document.
And read the charging language closely where sub. (2m) is alleged. Three circumstances must all be present, including a trial that resulted in the conviction of an innocent person. That is a demanding set of facts, and it is not satisfied by a false statement standing alone.
Talk to a New Berlin criminal defense lawyer
Carson Law Office defends resisting and obstructing charges in New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities — including the felony upgrades under § 946.41 (2r) and (2t), the armed-refusal felony under § 946.415, and fleeing charges under § 346.04 (3). If the charge against you grew out of the encounter rather than the reason for it, the lawfulness of that encounter is an element the State has to prove. Call (262) 860-8932 or email christopher@carsonlawoffice.com. You can also read more about our criminal defense practice and our post on your rights during a stop, a search, and questioning, or contact us to arrange a consultation.
Carson Law Office · 15350 West National Avenue, Suite 101, New Berlin, WI 53151 · (262) 860-8932
This article is general information about Wisconsin criminal law and is not legal advice. Statutes are amended from time to time, penalty maximums are statutory ceilings rather than predictions of any particular sentence, and every case turns on its own facts. Speak with an attorney about your own case.