While conducting a drivers license checkpoint, it was discovered that Greg Mastin‘s Alabama license was expired under Mississippi law (in Alabama, there is a 60 day grace period upon expiration to renew. Mastin was within the 60 days). The officer advised that Mastin yelled, screamed, and was refusing to accept the expired license ticket so he was arrested for disorderly conduct and resisting arrest.
However, in his police report and at trial, it was clear that Mastin did take the ticket. Mastin pled guilty to the expired license ticket and appealed the disorderly conduct and resisting arrest convictions. He was sentenced to six months probation. MCOA reversed both.
To prove that Mastin violated section disorderly conduct, 97-35-7(1)(i), the State was required to prove that (1) Mastin—with the intent to provoke a breach of the peace, or under circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace— refused to promptly comply with or obey a request, command, or order to act or do or refrain from acting or doing something; (2) the purpose of the request, command, or order was to avoid a breach of the peace; (3) the person giving the command was a law enforcement officer; and (4) the law-enforcement officer—at the time of giving the command, order, or request—had the authority to then and there arrest him for a violation of the law.
As to the listed elements, it is clear from the evidence that Deputy Paul Greggs was a law enforcement officer. Likewise, it is clear that at the time of the events resulting in Mastin’s arrest, Greggs had the authority to arrest Mastin for driving with an expired license, as there is no evidence that Greggs was aware of the Alabama law allowing Mastin to drive, with impunity, for 60 days even though his license had expired. However, there is no evidence supporting elements one and two.
Assuming a command was given, it was a command to Mastin to take the ticket for driving with an expired license. It is also abundantly clear that, according to Greggs’s own testimony, Mastin took the ticket, albeit not without doing some cursing in the process. But for purposes of this discussion, we accept that he ordered Mastin to take the ticket.
Even so, the order or command to take the ticket was not issued for the purpose of avoiding a breach of the peace, for at that point nothing had transpired that could be even remotely viewed as a brewing breach of the peace.
Greggs also admitted on cross-examination that he had not gotten upset or felt threatened by Mastin’s words. He further admitted that Mastin had not attempted to provoke a physical altercation with him. Officer Jason Humbers, who was about 20 feet away, testified that he never observed any disorderly conduct from Mr. Mastin prior to looking over and seeing him in handcuffs.
So when Greggs arrested Mastin for disorderly conduct, Mastin had not refused an order or command by a law enforcement officer to act or do, or refrain from acting or doing, something in order to prevent a breach of the peace.
The resisting arrest charge is based on Mastin’s actions relating to Greggs’s attempt to arrest him for disorderly conduct. Therefore, as we have found insufficient evidence to support the disorderly conduct charge, it follows that the resisting arrest charge cannot stand, as the law is clear that one may lawfully resist an unlawful arrest.
To prove that Mastin resisted arrest, the State had to prove that Mastin obstructed or resisted by force, or violence, or threats, or in any other manner, his lawful arrest . . . by a state, local or federal law enforcement officer. Miss. Code Ann. § 97-9-73 (Rev. 2014).
Because the evidence was insufficient to establish the legality of Mastin’s arrest, it was also insufficient to establish that he resisted a lawful arrest. Accordingly, we reverse and render Mastin’s convictions for disorderly conduct and resisting arrest.