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 How is Misdemeanor Assault Different From a Felony Assault?

The difference between a misdemeanor assault versus a felony assault will largely depend on the laws of a particular state. The reason for this is because each state has its own criminal statutes that define and classify whether a crime is considered a felony or a misdemeanor offense, and when a misdemeanor offense should be raised to the level of a felony.

In general, misdemeanor assault or simple assault, involves conduct that causes a victim to experience reasonable apprehension that they will soon be subject to imminent bodily harm. The conduct does not have to amount to physical force, but it does have to include something more than a verbal threat. In other words, the victim needs to be more than certain that they are about to be injured by some kind of violent act.

On the other hand, felony assault or aggravated assault, involves the same underlying concept as simple assault, but in this instance it adds an extra element that makes the crime more serious.

For example, simple assault may occur if a defendant threatens to strike the victim with their fist. Simple assault can become aggravated assault if the defendant threatens to strike the victim with a deadly weapon or some other item that would cause more harm to the victim than a fist would if the threat is followed through (i.e., becomes a battery).

As mentioned, whether the assault is considered a felony or misdemeanor offense will rest heavily on the criminal laws of a particular jurisdiction. For instance, compare the definitions for assault in the following two states:

  • Texas Assault Crimes: Misdemeanor assault in Texas is defined as recklessly, intentionally, or knowingly causing bodily harm to another person; intentionally or knowingly threatening the victim with imminent bodily harm; or intentionally or knowingly causing physical contact with a victim that they know is offensive.

    • In Texas, the assault may become a felony if severe injuries were inflicted on the victim or if the assault was committed with a deadly weapon. Texas also classifies felony assault according to degrees (e.g., 1st or 3rd degree), which depends on a variety of factors, but most importantly the relationship between the defendant and their victim, or the type of victim (e.g., emergency personnel).
  • North Carolina Assault Crimes: On the other hand, North Carolina defines misdemeanor assault as putting someone in fear of battery or the failed attempt of committing battery. North Carolina has similar factors required for it to be considered an aggravated assault (e.g., victims under the age of 12 or officers of the state), but it does not categorize its felony levels by degrees and uses classes instead (e.g., Class C or E).

Aside from state specific criminal statutes, other factors that can make a difference as to whether the defendant is charged with misdemeanor or felony assault include who the victim was, how severe the bodily injury was, and whether they were a first-time or repeat offender.

What is Considered Assault?

There is a wide variety of conduct that could be considered assault. Some common examples of assault include:

  • Aiming a deadly weapon at someone;
  • Making a sudden lunge towards another individual with the intent to harm them;
  • Faking a punch, slap, or kick against a person who reasonably fears it will happen; or
  • Threatening to hurt the victim while committing another felony, such as robbery.

Again, the key to assault is that the person must be aware that they are in immediate danger. If they are not aware or they do not actually fear harm, then it may not be assault. However, if the act is carried through, it will be considered as battery.

In addition, a defendant facing assault charges can be sued in both civil and criminal courts. Although the elements of proof for civil and criminal assault are fairly similar, the legal remedies for them are different. Also, criminal assault requires a higher level of proof by the prosecution.

Can You Go to Jail for Misdemeanor Assault?

The types of punishments a defendant can receive will depend on the type of assault, the laws of a state, and the circumstances of an individual case. For misdemeanor assaults, the defendant can face jail time for up to a year and will possibly have to pay a certain amount of criminal fines.

If some fact is present that turns the misdemeanor assault into a felony (e.g., if the defendant is a repeat offender), then the defendant can face heavier criminal fines and prison sentences for longer than a year.

To show the discrepancy between the types of punishment a defendant can face due to the factors of their assault case, consider the following example for the state of Texas:

  • In Texas, misdemeanor assaults are usually classified between Class A to Class C felonies. This means that depending on which class the defendant ends up charged with they may have to pay anywhere from $500 (i.e., Class C) to $4,000 (i.e., Class A) in criminal fines, and could receive a jail sentence from 180 days (i.e., Class B) to one full year in jail (i.e., Class A).

    • In contrast, for Texas felony assault crimes, depending on the degree (i.e., first degree to third degree felonies) the defendant could face a prison sentence from anywhere between greater than a year to life. They also will be subject to fines of up to $10,000 or more.

Are There Any Defenses for Misdemeanor Assault?

There are several defenses available against a charge for misdemeanor assault. These include:

  • Self-defense or privilege;
  • Consent;
  • Mistake;
  • Defense of property; and
  • Various other affirmative defenses.

Generally speaking, when a defendant is attempting to get a felony assault reduced to a misdemeanor, then this type of defense is known as a partial defense. It will not completely dismiss the charges, but instead, will make the consequences of the crime less severe.

Do I Need a Lawyer If I Have Been Charged with Misdemeanor Assault?

While criminal defendants have the right to a state-appointed attorney, it is often recommended that they hire their own defense counsel. A defendant who chooses their own attorney usually feels more secure about working with that individual, which in turn, can lead to a better outcome for their case.

Thus, if you are facing misdemeanor assault charges, an experienced criminal defense attorney can guide you through the legal process, provide information about your legal rights, and will be able to determine whether any defenses apply to your situation. An attorney can also assist with negotiating a plea bargain deal if necessary, or alternatively, representing you on the matter before the court.


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