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.
Recent Assault Cases
- Springfield, Connecticut Man Faces Assault and Carjacking Charges – A man in Springfield, CT has been charged after he allegedly assaulted a woman in a parking lot while trying to steal her car keys, and then tried to carjack another car. Juan Laporte, 32, has been charged with third degree assault, reckless endangerment and carjacking.
- North Dakota Man Convicted of Third Degree Assault – Lonne. A. Frankl was convicted of felony third degree assault last week stemming from an August 2017 incident. He was ordered to serve 30 days in jail with work release. He will have supervised probation for five years.
- Two Men in Connecticut Shoot At Police, Face Multiple Charges – Two men in Bridgeport, Connecticut face a long list of charges after allegedly firing at police officers. They are charged with third degree assault, second degree threatening, reckless endangerment, breach of peace and burglary.
- Houston Man Wounded By Deputy Faces Assault on Officer Charge – A man from Houston who was wounded by a Waller County deputy last week faces an aggravated assault on a police officer charge. The deputy fired at Jose Cortes, 35, after the man allegedly pointed a gun at him.
- What Is Third Degree Assault? (n.d.). Retrieved from https://www.legalmatch.com/law-library/article/what-is-3rd-degree-assault.html?intakeredesigned=1