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Challenges to the Constitutionality of Arizona’s “Failure to Comply with an Order” under ARS 28-622(A)

One of least understood and most commonly charged crimes in Arizona is “Failure to Comply with a Lawful Order” in violation of Arizona Revised Statutes (ARS) section 28-622(A). The crime is classified as a class 2 misdemeanor. The statute provides:

28-622. Failure to comply with police officer…

  1. A person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic. (“Willful” and its variations are spelled “wilful” in the statute, an accepted but archaic spelling in American English.)

But the question remains, how do you assert your rights during a traffic stop without running the risk of being arrested with “Failure to Comply” under ARS Section 28-622(A)?

First, it is important to remember that an officer can either ask you to do something or order you to do something. If the officer is merely inviting you to do something on a voluntary basis without ordering you to do it, then you are free to decline the invitation.

On the other hand, if the officer gives you an order that is “lawful” when it is issued, then you should comply in order to avoid an arrest and prosecution for ARS 28-622(A). Making such a decision in the heat of the moment at the scene creates problems for the officer and the person being detained.

A Recent Challenge to the Constitutionality of ARS 28-622(A)

A recent decision from the Court of Appeals of Arizona, issued on October 8, 2015, sheds light on the nature of the charge and the vagueness of its terms. Although many criminal defense attorneys consider the charge a “catch-all” provision that allows an officer to make an arrest even when no other crime was committed, the Courts have upheld its constitutionality after a recent challenge.

The decision shows the tremendous and nearly unlimited discretion officers have to make an arrest for merely failing to company with an order of the law enforcement officer. At trial, the job of the criminal defense attorney is to show reasonable doubt about one of the elements of the offense, including whether:

  • The defendant acted willfully;
  • The defendant failed or refused to comply with an order or direction of a police officer;
  • The order or direction was a lawful order at the time it was issued; and
  • The police officer was invested by law with authority to direct, control or regulate traffic.

In State v. Burke, (No. 1 CA-CR 14-0438. Court of Appeals of Arizona, Division One. October 8, 2015), the Court recently examined the constitutionality of the statute after a prosecution by the Scottsdale City Prosecutor’s Office. The bench trial took place in the Scottsdale Municipal Court. After the conviction, the defendant appealed to the Maricopa County Superior Court arguing, among other things, that the A.R.S. § 28-622(A) is unconstitutionally vague and over broad.

The Court briefly recounted the facts of the case as follows:

“This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle.”

On appeal the Court held that the statute was not vague because “the statute does not punish individuals for a mere failure to obey; instead, it requires a willful, or knowing refusal or failure to comply, which is tantamount to an affirmative act of rejection.”

Therefore, the Court found that the terms “wilful” and “wilfully fail,” as used in the statute, are not so indefinite as to be considered constitutionally invalid.

Burke also argued that the phrase “lawful order or direction” in A.R.S. § 28-622(A) lacks sufficient definiteness such that it is unconstitutionally vague. The Court recognized that the term “lawful order” was not defined by the Arizona Legislature in the statutory scheme.

The Court, however, looked at the ordinary meaning of that phrase and found it required “the individual to comply with a police officer’s instructions that are, at the time they are issued, authorized by law.” The Court noted that because  “many police orders can be deemed lawful (e.g.: “step out of the car with your hands up,” or to the person exiting the vehicle, “put down your weapon”), the facial attack here must fail.”

The Court also argued that A.R.S. § 28-622(A) was not unconstitutionally vague because did not fail to establish minimal guidelines for enforcement or open up the possibility of discriminatory and arbitrary enforcement.

Additional Resources:

Recent Decision on on the Constitutionality of ARS 28-622 — Visit the portals of, the website for the Arizona Judicial Branch, to find recent court decisions from the Court of Appeals in the State v. Burke case. Also find recent decisions issued by the Arizona Supreme Court, as well as publications and reports, licensing and regulations, a self help center, and information from the Administrative Office of the Courts (AOC).

ARS 28-622 — Failure to Comply with a Police Officer — Visit the website of the Arizona Legislature to read the complete statutory language of the Failure to Comply with a Police Officer statute under ARS 28-622.

Finding an Attorney in Arizona for “Failure to Comply” Cases

If you were charged with willfully refusing or failing to comply with a lawful order or direction of a police officer in violation of Arizona Revised Statutes (“A.R.S.”) section 28-622(A), then contact James Novak, an experienced criminal defense attorney in Tempe, AZ.

James Novak represents clients on misdemeanor and felony charges throughout the greater Phoenix area and the surrounding East Valley Cities including Scottsdale, Tempe, Chandler, and Gilbert, Arizona.

James Novak also represents clients on related charges including Disorderly Conduct under ARS 13-2904, Resisting Arrest under ARS 13-2508, and Unlawful Flight from a Pursuing Law Enforcement Vehicle under ARS 28-622.01.


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