Assault is defined by most criminal statute as any intentional act that causes a “fear of imminent” bodily harm or offensive touching. In many jurisdictions, assault is further subdivided into degrees. Assault does not require that touching actually occur. As long as the person reasonably fears that the harmful or offensive contact will occur, a court can often make a finding of assault.
Though exact definitions may vary according to state law, the degrees of assault are often characterized as follows:
- 1st Degree: Intentionally inflicting the fear of serious bodily harm, or intentional fear of injury caused by a deadly weapon;
- 2nd Degree: Knowingly inflicting a fear of serious bodily injury, or knowingly inflicting a fear of injuries with a deadly weapon;
- 3rd Degree: Reckless infliction of the fear of serious bodily injury, or recklessly causing a fear of injury through the use of a deadly weapon.
third degree assault is generally the least serious form of assault in most states. It requires the least amount of intentional conduct out of the three types of assault. 1st and 2nd degree assault charges usually involve a more intentional, deliberate act, and will therefore result in more serious criminal penalties than third degree assault. Under criminal laws, intentional acts are punished more severely than conduct that is negligent or reckless.
Note that state laws may differ with regard to the exact definitions of assault and the subcategories associated with it. Some states might not make the exact same differentiations between the categories.
In many states and jurisdiction, third degree assault is prosecuted as a Class A misdemeanor. Class A misdemeanors are a more serious type of misdemeanor, with Class B, C, and D being less serious crimes. Some states may use a numbering system (such as Class 1, 2, etc.). Class A or Class 1 misdemeanors are usually slightly less serious than felony charges.
Class A misdemeanor crimes are typically punishable by a maximum of one year in a county jail and a criminal fine, which can be up to $1,000. In contrast, 1st and 2nd degree assault charges are usually classified as felonies, resulting in more serious consequences.
However, as mentioned, state laws will vary regarding the details of the criminal punishments for third degree assault. For example, certain states may automatically process third degree assault as a felony. Felony charges can result in more strict criminal penalties, such as higher fines, and sentences in a prison facility (not a county jail house) for more than one year. Felonies are also more difficult to have expunged or removed from one’s personal criminal record.
In some states, third degree assault may be considered a “wobbler offense.” A wobbler crime or offense is one that can be charged either as a misdemeanor or a felony, depending on the circumstances. Therefore, in certain cases, third degree assault can result in criminal consequences that are more comparable to those for a felony rather than a misdemeanor.
Some factors that might cause a third degree assault charge to result in felony punishments may include:
- Repeat assault offenses, which can result in more serious consequences (the court sometimes classifies offenders as “repeat offenders” or “habitual offenders”;
- The degree of bodily harm intended or inflicted on the victim; greater injuries often lead to greater penalties
- The type of weapon used — the use of a more dangerous weapon or an illegal weapon can result in greater criminal penalties;
- Characteristics of the victim — assault on a police officer, domestic partner, or minor may result in more serious felony charges.
On the other hand, charges for criminal assault may also be reduced to a lesser assault charge such as a 4th degree assault charge, depending on the circumstances in the case. Not all states have wobbler laws.
Depending on the circumstances surrounding the charges, a person facing third degree assault charges may be able to raise a criminal defense in court. Available defenses will depend on state laws, as well as the facts of each individual criminal case.
Some commonly raised defenses to third degree assault may include:
- Lack of Evidence to Fulfill the Elements of Proof: It may serve as a defense if the prosecution cannot prove an element of proof due to lack of evidence.
- For instance, recklessness is a required element to prove third degree assault; if the prosecution can’t show that the defendant was reckless in their conduct, it may serve as a defense. Another example is if the defendant did not actually use a deadly weapon;
- Self-Defense: Self-defense is a commonly-raised defense to assault charges. In order to claim this defense, the defendant must not be the one to start the violent conduct, and they must only use or present an amount of force that is proportionate to that being used against them; and
- Intoxication: In some cases it can be a defense if the person was intoxicated at the time of the assault, especially if the intoxication interferes with their ability to act intentionally. Also, this defense is strengthened if the person was intoxicated involuntarily (for instance, if someone “spiked” their drink).
Various other defenses can be raised, depending on the situation. Some defenses might not serve to fully excuse the defendant, but they might help them to obtain a lesser charge or a lighter sentence.
Assault charges and definitions can lead to serious legal consequences. These definitions will also vary widely from state to state. It may be in your best interests to hire a local criminal defense attorney for assistance with any assault charges.
A lawyer near you can provide you with legal advice, research, and guidance when it comes to the laws in your area. Also, your attorney can represent and guide you during any court meetings.