Criminal Attempt: Charges, Penalties, Defenses

Criminal attempt is the attempt to commit a crime that falls short of completion of the crime. In the past many states required that a defendant had come dangerously close to committing the crime, but more recently many states require less. A defendant charged with any criminal attempt offense should understand the nature of an attempt charge, potential defenses, and the sentencing ranges associated with the charges.

Elements of Criminal Attempt

A criminal attempt charge begins with a person’s intent to commit some crime. However, the decision to commit an offense is not enough to constitute an attempt charge. Instead, the prosecution must also show that the person did some overt act that was intended to complete the underlying criminal act.There is not a bright line test for what is considered an overt act, but the act must involve something more than mere preparation. Buying baggies can be evidence of intent to deliver marijuana, but because the purchase is solely in preparation of the criminal offense, it would not constitute a sufficient overt act. It could, however, be combined with other factors to show a total picture of more than preparation.

Defenses to Criminal Attempt Charges

The most common defense to a criminal attempt charge involves attacking the “overt act.” Essentially, the defensive theory is to show that even if the defendant was considering the commission of some criminal act, he did not perform any acts other than those related to preparation. For example, if a defendant’s only act was to call another person to see if they would be interested in purchasing drugs, the phone call would not be enough to prove the overt act sufficient for a criminal attempt conviction. The second area of defense is to rebut any evidence that the defendant ever intended to commit the alleged criminal act. 

Punishment Ranges for Criminal Attempt Offenses

Unless a criminal statute states otherwise, the punishment range for criminal attempt offenses tends to be a grade or two lower than the level of the actual felony. If sexual assault is considered a first degree felony, then attempted sexual assault would be considered a second degree felony. Many of the same collateral consequences that apply to the underlying crime will also apply to attempted criminal offenses. Even though the sexual assault was not completed, many states will still require a defendant to register as a sex offender—even if they are only found guilty of attempted sexual assault. A conviction for an attempt charge can also result in a denial of citizenship or the suspension of a defendant’s driver’s license, depending on the nature of the underlying charges.

In addition, attempt charges may carry the same stigma as the underlying crime. Such charges may make it more difficult for a defendant to find employment and a conviction may cause deportation depending on immigration status, difficulty in finding employment, loss of professional licenses, and other long term consequences.