Assault with a Deadly Weapon
UPDATED: March 27, 2012
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Assault with a deadly weapon is a broader use of the term assault and includes conduct which places another in fear of imminent injury, or actually causes an injury, through the use of a deadly weapon. Read on to learn more about the charge, defenses, and possible punishments for an assault with a deadly weapon charge.
Assault with a Deadly Weapon Charges
Assault with a deadly weapon is usually one of the highest assaultive offenses next to manslaughter and murder. Some states refer to this charge as assault with a dangerous instrument or aggravated assault with a deadly weapon. An assault can include knowing, intentional, or even reckless conduct which results in an unwanted contact with a victim. The most basic example of knowing or intentional conduct is when one person hits another with a closed fist.
Many states, however, broaden the application of the assault with a deadly weapon statute by including reckless conduct. Instead of having a separate charge or statute for intoxication assault offenses, some states or jurisdictions will address these offenses with a reckless conduct aggravated assault charge. For example, if a defendant consumes alcohol and decides to drive 100 MPH through a school zone, the defendant could be charged with assault with a deadly weapon if a child is hurt because the defendant engaged in conduct that was clearly reckless to the safety of the children in a marked school zone.
Assault with a deadly weapon can also include assaults by threat. Instead of requiring that a victim actually experience pain, some states authorize convictions even when the victim is placed in apprehension or fear of imminent bodily injury or death. If a person points a gun at his neighbor and threatens to shoot him, then the threat is sufficient to constitute an assault for the purposes of an aggravated assault charge.
Proving Assault with a Deadly Weapon
To prove an assault with a deadly weapon charge, the state must also show that a defendant actually used a deadly weapon or dangerous instrument. Many states define guns or firearms as deadly weapons. However, a variety of instruments can be considered a deadly weapon. The definition is set out by each state's penal code, but usually involves some evidence that the deadly weapon was used or intended to be used in a way that was capable of causing death or serious bodily injury.
A deadly weapon finding does not generally require proof that a victim was actually injured, only that the instrument was capable of causing the serious injury. Continuing with the school zone example, thousands of people drive cars every day and in their ordinary use, cars are not considered deadly weapons. If a defendant uses the car in such a way that is capable of causing serious bodily injury by erratic driving and unsafe speeds, the use of the vehicle could qualify it as a deadly weapon or dangerous instrument.
Other items which courts have held to be deadly weapons include knives, clubs, baseball bats, and hammers. Sometimes a substance can also be considered a deadly weapon. In Fort Worth, Texas, a man was charged and convicted of aggravated assault with a deadly weapon, namely his semen or bodily fluids, because he was HIV positive and knowingly engaged in unprotected sexual activities with multiple partners, thereby recklessly infecting them with the HIV virus. Most defenses to an assault with deadly weapon charges stem from what is considered an assault or a deadly weapon.
Many of the same defenses that are available against a regular assault charge are available in the case of an assault with a deadly weapon charge. Consent or mutual combat is a defense if both parties agreed to the use of the same or similar dangerous instruments. For example, if the deadly weapon alleged is a fist and both parties had consented to a fist fight, then consent or mutual combat could be a defense. However, if one party consented to a fist fight, but the other party brought a knife, then the consent defense may not be available.
If a victim suffered an injury because of the actions of a defendant, the strategy may focus more on the intent of the contact or the use of the deadly weapon to get the charge reduced. For example, a defendant may not deny that a child was hurt as he was driving through the school zone, but instead may argue that the event was an accident, not reckless conduct. Likewise, if a defendant can prove that the instrument used in the assault was not dangerous, then he could ask that the jury find him guilty of a minor assault, rather than the aggravated charge.
Punishments for Assault with a Deadly Weapon
Assault with a deadly weapon is a felony level offense. Aggravated felonies can usually result in punishment from two to thirty years. Other factors, like the age of the victim or the extent of the injury, can result in an even higher level of punishment. Even where the punishment level is lower, the parole consequences are usually higher. Due to prison overcrowding, offenders who are convicted of using deadly weapons are held in prison longer and parole later than defendants who are convicted of non-violent offenses. Even though not a direct punishment, an assault with a deadly weapon charge can have other collateral consequences on a person’s employment, educational funding opportunities, and professional licenses.
Aggravated offenses like assault with a deadly weapon are serious charges that are not to be taken lightly. They have significant short-term and long-term impacts on any defendant’s life. Before accepting a plea bargain, a defendant should consult with a criminal defense attorney to review all of the defensive and sentencing options.