Dear PAO,
My husband had an altercation with a traffic police for alleged violation of traffic rules. After a month, my husband received a subpoena requesting him to attend the hearing before a Fiscal for resisting arrest filed by the same police officer.

What will my husband do? Will he be arrested if he would attend the hearing?
Virginia

Dear Virginia,
The crime of resisting arrest, alleged to have been violated by your husband is punishable under Article 151 of the Revised Penal Code which provides for penalty of arresto mayor and a fine not exceeding P500 to any person who shall resist or seriously disobey any person in authority or the agents of such person, while engaged in the performance of official duties.

A subpoena in relation to the commission of a crime is being issued by the Office of the Prosecutor for the purpose of compelling the person named therein to attend the preliminary investigation at the date, time and place stated for the abovementioned crime. Here, the respondent is being required to submit his counter-affidavit and his evidence to support his defense. Your husband should not be afraid in attending the preliminary investigation because he will not be arrested if he would go there. A preliminary investigation is merely an inquiry or proceeding conducted to determine whether there is sufficient ground to engender a well-grounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Section 1, Rule 112, Rules of Court). The failure of the respondent to attend the preliminary investigation shall be considered a waiver of his right for investigation. A warrant of arrest shall only be issued by the judge after personally evaluating the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to a warrant of arrest. (Section 6, Rule 112, Rules of Court).

Hence, your husband may attend the preliminary investigation and therewith submit his counter-affidavit without fear of arrest. For purposes of assistance in the counter-affidavit, the Public Attorney’s Office (PAO) of the district or place where the complaint is filed may help your husband in the preparation of a counter-affidavit, provided that he qualifies under the PAO’s indigency test. Accordingly, a client is indigent if he is residing within Metro Manila and his net income does not exceed P14,000; if residing in other cities, P13,000; and if residing in any other places, P12,000 (Section 3, PAO Operation’s Manual).

Please be reminded that the above legal opinion is solely based on our appreciation of the facts that you have stated in your problem. The opinion may vary when the facts stated therein are added or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.