concurring in the result:
¶ 43 I agree with the majority that the police officers in this case had probable cause to arrest Trane for public intoxication. I therefore concur that the evidence obtained *1063in the search incident to that arrest was properly admitted. The majority goes too far, however, in determining that one may properly be arrested for interfering under section 76-8-305 regardless of whether the officer is engaged in a lawful arrest or detention. This conclusion is unnecessary given the court’s holding that there was an independent, lawful basis for the arrest in this case. Further, the majority’s approach implies a rule that is unnecessarily confusing and overstates our holding in Gardiner.
¶ 44 The majority correctly determines that the court of appeals’ decision in Penar-Flores, 2000 UT App 323, 14 P.3d 698, does not apply to this case. It does so, however, for the wrong reason. Rather than distinguishing Penar-Flores on the grounds that the current case involves a lawful arrest, the majority complicates the question by observing that Peno-Flores addressed what makes for a valid conviction under the statute, whereas this case considers what constitutes a proper arrest under the statute. The majority rationalizes this reading, stating that “a suspect need not be guilty of the offense for which the officers arrested the suspect for the officers to have probable cause to arrest.” Supra ¶ 26. The natural implication of the majority’s approach is that different factors may be considered in determining the propriety of an arrest than are considered when determining the validity of a verdict under the same statute. While it is true that we require different standards of proof for arrest and for conviction, we have never held that a factor not relevant to weighing probable cause is determinative in testing a verdict. To the extent that the majority implies that the rule of law should vary between arrest and conviction, I must disagree.
¶ 45 I also cannot agree with the way in which the majority applies State v. Gardiner, 814 P.2d 568 (Utah 1991), to the statute at issue here. In Gardiner we held that the common-law right to forcefully resist an arrest has been repudiated in Utah. Id. at 573. In that case, the defendant, Gardiner, was convicted of assaulting an officer, in violation of section 76-5-102.4, and interfering with an arresting officer, in violation of section 76-8-305. Id. at 569. The defendant punched an officer who was attempting to make an unlawful search and became more violent when the officer attempted to arrest him. Id. We held that a defendant does not have a right to forcefully resist an arrest, whether the arrest be lawful or not, so long as the officer is acting within the scope of his or her authority and with adequate indicia of authority. Id. at 573-75.
¶ 46 The statute at issue in the current case prohibits more than just forcefully resisting an arrest. It prohibits interference in three different forms:
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or
(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.
Utah Code Ann. § 76-8-305 (2001). The majority, however, does not refine its holding by tying Gardiner’s holding to a specific section of the statute, but rather crafts its ruling broadly, concluding that “the lawfulness of an officer’s order or arrest is not determinative of whether an officer is authorized to arrest an individual under the statute.” 1 Supra ¶ 35. I would limit the holding to section one of the statute. While there is wisdom in concluding that a person does not have a right to forcefully resist an *1064arrest, I see no reason also to conclude that a person may never refuse any order given by an officer, whether that order be lawful or not, or take any action, passive as it may be, that might impede an arrest or detention. This dicta unnecessarily suggests that the police may never be limited or questioned when making an arrest.
¶ 47 I would hold that Trane was properly arrested for public intoxication. I would save the interpretation of section 76-8-305 for another day.
. While the majority styles its holding as applying to the statute as a whole, it does specify that Trane violated section two of the statute. It is perplexing, however, why the majority chooses to ground its ruling on section two, which prohibits interfering by "refusal to perform any act required by lawful order,” instead of section one, which prohibits interference by "force or any weapon." Utah Code Ann. § 76-8-305 (2001). Surely, the plain language of section two — "required by lawful order” — contemplates that the officer be acting lawfully. A narrow reading of that section is also suggested by the requirement that the officer’s order be "necessary to effect the arrest or detention" and "made by a peace officer involved in the arrest or detention.” I would hold that Trane’s violent acts constituted a violation of section one, which applies to both lawful and unlawful arrests, and leave interpretation of section two for a case that is squarely on point.