Assault is defined as an intentional act that leads to fear of harm, or offensive touching. In most states, assault is divided into degrees. Note that assault laws do not require actual physical contact to occur. As long as the victim reasonably fears that contact will happen, the court can rule that assault occurred.
The exact definitions of assault will vary by state, but degrees of assault are commonly defined in this manner:
- 1st degree assault: Intentionally inflicting fear of serious bodily harm, or intentional fear of injury that is caused with a deadly weapon.
- 2nd degree assault: Knowingly causing a fear of serious bodily harm, or knowingly inflicting a fear of injuries with deadly weapon.
- 3rd degree assault: Recklessly inflicting fear of serious bodily harm, or recklessly causing fear of injury with a deadly weapon
Third degree is usually the least serious type of assault in most states. First and second degree assault are usually defined as more intentional, so will result in more serious penalties than third degree assault.
Under the laws of New York state, for example, you commit third degree assault if you do the following:
- Intentionally harm another person
- Injure a third party when you try to injure the other person
- You cause a reckless injury to another person
- You injure another person negligently by using a deadly weapon
Elements to Prove Assault
To prove third degree assault, the state prosecutor must prove beyond a reasonable doubt that the following elements occurred:
- You must have acted with the intent to create a state of danger or fear in the victim. You cannot be convicted of assault if the assault was an accidental act.
- The victim had a reasonable apprehension that they would be harmed by you.
- The victim experienced fear in response to an imminent threat of harm, or one that was about to occur. A future threat, such as a threat of harming the person next week, does not count as assault.
- Your conduct must present a physical threat or offensive behavior to the victim. So, pretending to punch the other person could be assault, as could spitting on the person.
Each of these elements have to be present for you to be guilty of any type of assault, including third degree. Of all of the elements, the one that gets the most attention in court is about intent and the concept of ‘harmful or offensive.’ It can be challenging to prove if you really intended to assault the person. Thus, the judge or jury may spend a lot of time trying to determine if the acts of the defendant were offensive or harmful.
Many states also frequently charge people in bar fights with third degree assault. For many criminal defense attorneys in Colorado, most assault cases derive from alcohol consumption.
Penalties for 3rd Degree Assault
In many states, a 3rd degree assault charge is a class A misdemeanor. Broadly, a class A misdemeanor can be punished by up to one year in jail and a fine up to $1000. On the other hand, most first and second degree assault charges are felonies. But state laws will vary on the level of punishment for third degree assault.
Below are some examples of 3rd degree assault penalties in several states:
- Texas: If it is charged as a class A misdemeanor (common), you can receive up to a year in jail and up to a fine of $4000. Statute is Title 5. Offenses Against the Person, Chapter 22. Assaultive Offenses.
- Colorado: A third degree assault charge can be punished by up to six months in prison. Statute in this state is C.R.S. 18-3-201.
- Nebraska: This could be charged as a class 1 misdemeanor, with a a sentence of one year in jail and a $1000 fine. Law is covered under Nebraska Revised Statute 28-309.
- New York: Third degree assault is a class A misdemeanor punishable by up to one year in jail.
In Colorado, per statute 18-3-204, it is common for most assault charges to be accompanied with an harassment charge. Harassment charges in this state involve all elements of an assault crime, except injury. So, if the Colorado jury thinks you did everything to commit assault except inflict injury, you may be found guilty of harassment. That conviction still will go on your criminal record and can make it difficult to find a job or rent an apartment, among other issues.
It is important to watch out for other charges that can be added onto the assault charge. Even if you are cleared of the assault charge, your life can be negatively affected by harassment and other charges. So it is important in most cases where other charges are filed to fight them with an aggressive criminal defense attorney.
Wobbler Offense and Third Degree Assault
Some states consider a third degree assault charge to be a wobbler offense. This is a crime that may be charged as a felony or misdemeanor. In some cases, third degree assault can give you criminal punishments that are more like those of a felony than a misdemeanor. Some factors that could lead to a third degree assault charge with felony punishments are:
- You are a repeat offender, especially of violent or potentially violent crimes
- The degree of bodily harm intended or inflicted was higher
- The type of weapon you used, as a more deadly weapon can cause more serious harm
- The characteristics of the victim, such as elderly, police officer or minor
On the other hand, assault charges can be reduced to a fourth degree level, in some states, depending upon various factors.
Defenses for Assault Charges
The most common defense for any type of assault charge is self defense. You must admit that you have assaulted or threatened to assault the other person, but argue you had a valid legal reason to do so.
Another common defense is consent/mutual combat. This defense argues that both people entered into the situation and understood the risks before they engaged in combat. For instance, if the alleged victim has challenged you to a fight but you win the fight, you could argue that you did not provoke the altercation that the alleged victim entered of his own free will.
Pretrial Diversion for Assault Charges
Some states, such as Alabama, offer pretrial diversion programs for some assault charges. This type of punishment option is often available to first time offenders without a criminal record. Typically, you would involve a conditional plea to the charge and a continuation of the case for up to a year. You then would need to take some type of education program, such as anger manger. If you complete it successfully, you could have the charge dismissed and never entered into your criminal record.
Consequences of Assault Charge
The personal consequences of an assault conviction on your record are usually serious in most states. If you are convicted, have a deferred sentence or any type of plea bargain, the conviction will appear on your permanent record. This can prevent you from being able to vote in some cases, not own a firearm, and renting an apartment, finding a job or getting a college loan can be very challenging.
3rd Degree Assault Laws By State
3rd degree assault involves intentionally causing physical harm to another person, often without the intent to cause serious injury. The laws and penalties for 3rd degree assault vary by state:
Under Code of Alabama Section 13A-6-22:
- 3rd degree assault is considered a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $6,000.
Under Alaska Stat. Section 11.41.220:
- 3rd degree assault is a Class C felony, with penalties including up to 5 years in prison and fines up to $50,000.
Under Arizona Revised Statutes Section 13-1203:
- 3rd degree assault is a Class 1 misdemeanor, punishable by up to 6 months in jail and fines up to $2,500.
Under Arkansas Code Section 5-13-207:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $2,500.
Under California Penal Code Section 240:
- 3rd degree assault, referred to as “simple assault,” is a misdemeanor, with penalties of up to 6 months in jail and fines up to $1,000.
Under Colorado Revised Statutes Section 18-3-204:
- 3rd degree assault is a Class 1 misdemeanor, which can lead to 6 to 24 months in jail and fines up to $5,000.
Under Connecticut General Statutes Section 53a-61:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $2,000.
Under Delaware Code Title 11, Section 611:
- 3rd degree assault is a Class A misdemeanor, with a potential sentence of up to 1 year in jail and fines up to $2,300.
Under Florida Statutes Section 784.03:
- 3rd degree assault, referred to as “battery,” is a first-degree misdemeanor, punishable by up to 1 year in jail and fines up to $1,000.
Under Georgia Code Section 16-5-23:
- 3rd degree assault, known as “simple battery,” is a misdemeanor, with penalties up to 1 year in jail and fines up to $1,000.
Under Hawaii Revised Statutes Section 707-712:
- 3rd degree assault is a misdemeanor, which includes a potential 1-year jail sentence and fines up to $2,000.
Under Idaho Code Section 18-903:
- 3rd degree assault, referred to as “battery,” is a misdemeanor, punishable by up to 6 months in jail and fines up to $1,000.
Under Illinois Compiled Statutes 720 ILCS 5/12-3:
- 3rd degree assault, known as “battery,” is a Class A misdemeanor, with penalties of up to 1 year in jail and fines up to $2,500.
Under Indiana Code Section 35-42-2-1:
- 3rd degree assault, referred to as “battery,” is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $5,000.
Under Iowa Code Section 708.2:
- 3rd degree assault is an aggravated misdemeanor, punishable by up to 2 years in prison and fines up to $6,250.
Under Kansas Statutes Section 21-5412:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $2,500.
Under Kentucky Revised Statutes Section 508.030:
- 3rd degree assault is a Class D felony, punishable by 1 to 5 years in prison.
Under Louisiana Revised Statutes Section 14:38:
- 3rd degree assault, known as “simple battery,” is a misdemeanor, punishable by up to 6 months in jail and fines up to $1,000.
Under Maine Revised Statutes Title 17-A, Section 207:
- 3rd degree assault, referred to as “assault,” is a Class D crime, punishable by up to 1 year in jail and fines up to $2,000.
Under Maryland Code, Criminal Law Section 3-203:
- 3rd degree assault is a misdemeanor, punishable by up to 10 years in prison and fines up to $2,500.
Under Massachusetts General Laws Chapter 265, Section 13A:
- 3rd degree assault, known as “assault and battery,” is a misdemeanor, punishable by up to 2.5 years in jail and fines up to $1,000.
Under Michigan Compiled Laws Section 750.81:
- 3rd degree assault is a misdemeanor, with a maximum penalty of 93 days in jail and fines up to $500.
Under Minnesota Statutes Section 609.223:
- 3rd degree assault is a felony, punishable by up to 5 years in prison and fines up to $10,000.
Under Mississippi Code Section 97-3-7:
- 3rd degree assault is a misdemeanor, punishable by up to 6 months in jail and fines up to $500.
Under Missouri Revised Statutes Section 565.070:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $2,000.
Under Montana Code Annotated Section 45-5-201:
- 3rd degree assault, referred to as “assault,” is a misdemeanor, punishable by up to 1 year in jail and fines up to $1,000.
Under Nebraska Revised Statutes Section 28-310:
- 3rd degree assault is a Class I misdemeanor, with a penalty of up to 1 year in jail and fines up to $1,000.
Under Nevada Revised Statutes Section 200.471:
- 3rd degree assault is a misdemeanor, punishable by up to 6 months in jail and fines up to $1,000.
Under New Hampshire Revised Statutes Section 631:2-a:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $2,000.
Under New Jersey Statutes Section 2C:12-1:
- 3rd degree assault, referred to as “simple assault,” is a disorderly persons offense, with penalties of up to 6 months in jail and fines up to $1,000.
Under New Mexico Statutes Section 30-3-4:
- 3rd degree assault, known as “aggravated assault,” is a fourth-degree felony, punishable by up to 18 months in prison and fines up to $5,000.
Under New York Penal Law Section 120.00:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $1,000.
Under North Carolina General Statutes Section 14-33:
- 3rd degree assault is a Class 2 misdemeanor, punishable by up to 60 days in jail and fines determined by the court.
Under North Dakota Century Code Section 12.1-17-01:
- 3rd degree assault, referred to as “simple assault,” is a Class B misdemeanor, punishable by up to 30 days in jail and fines up to $1,500.
Under Ohio Revised Code Section 2903.13:
- 3rd degree assault is a first-degree misdemeanor, with penalties including up to 180 days in jail and fines up to $1,000.
Under Oklahoma Statutes Title 21, Section 644:
- 3rd degree assault, known as “simple assault,” is a misdemeanor, punishable by up to 30 days in jail and fines up to $500.
Under Oregon Revised Statutes Section 163.160:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 1 year in jail and fines up to $6,250.
Under Pennsylvania Consolidated Statutes Title 18, Section 2701:
- 3rd degree assault, known as “simple assault,” is a second-degree misdemeanor, punishable by up to 2 years in prison and fines up to $5,000.
Under Rhode Island General Laws Section 11-5-3:
- 3rd degree assault is a misdemeanor, punishable by up to 1 year in jail and fines up to $1,000.
Under South Carolina Code Section 16-3-600:
- 3rd degree assault, referred to as “simple assault,” is a misdemeanor, punishable by up to 30 days in jail and fines up to $500.
Under South Dakota Codified Laws Section 22-18-1:
- 3rd degree assault, known as “simple assault,” is a Class 1 misdemeanor, punishable by up to 1 year in jail and fines up to $2,000.
Under Tennessee Code Annotated Section 39-13-101:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 11 months and 29 days in jail and fines up to $2,500.
Under Texas Penal Code Section 22.01:
- 3rd degree assault is a Class A misdemeanor, with increased penalties if the victim is a public servant or elderly, potentially leading to up to 1 year in jail and fines up to $4,000.
Under Utah Code Section 76-5-102:
- 3rd degree assault is a Class B misdemeanor, with a minimum sentence of 6 months to 1 year in jail and fines up to $1,000.
Under Vermont Statutes Title 13, Section 1023:
- 3rd degree assault is a misdemeanor, punishable by up to 1 year in jail and fines up to $2,000.
Under Virginia Code Section 18.2-57:
- 3rd degree assault is a Class 1 misdemeanor, with penalties including up to 1 year in jail and fines up to $2,500.
Under Revised Code of Washington Section 9A.36.031:
- 3rd degree assault is a Class C felony, punishable by up to 5 years in prison and fines up to $10,000.
Under West Virginia Code Section 61-2-9:
- 3rd degree assault is a misdemeanor, punishable by up to 1 year in jail and fines up to $500.
Under Wisconsin Statutes Section 940.20:
- 3rd degree assault is a Class A misdemeanor, punishable by up to 9 months in jail and fines up to $10,000.
Under Wyoming Statutes Section 6-2-501:
- 3rd degree assault, referred to as “simple assault,” is a misdemeanor, punishable by up to 6 months in jail and fines up to $750.
References
- What Is Third Degree Assault? (n.d.). Retrieved from https://www.legalmatch.com/law-library/article/what-is-3rd-degree-assault.html?intakeredesigned=1