“Understanding Assault Law” By Roseline D. Feral

If you have been accused or arrested for assault, it is important that you understand what

assault is under federal or state law and that you get help from an experienced criminal

defense attorney.

Wikipedia defines assault as: “An assault is carried out by a threat of bodily harm coupled with

an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may

result in either criminal and/or civil liability. Generally, the common law definition is the same

in criminal and tort law.”

You can actually be prosecuted criminally as well as being sued for civil damages so you want to

seek counsel sooner rather than later. The law is designed to discourage people from

aggressively attacking another person whether physical contact is actually made or not. Actual

physical contact is not required for a completed assault. An assault can occur if someone

attempts to strike someone with the present ability to carry out the assault. A good example of

an assault without a touching would be if one pointed a gun at another. It is clear that the

person would be afraid because people are always afraid when threatened by someone

pointing a gun at them.

In criminal cases, assaults may be prosecuted anywhere from simple assaults charged as

misdemeanors to attempted murder with different allegations and/or sentencing

enhancements. The prosecution can charge assaults in many different ways depending on the

circumstances. For example, if a weapon were used, the assault may be enhanced by use of a

weapon allegation and corresponding sentencing enhancements as well as making the crime a

violent felony, for future sentencing enhancement purposes.

In many states, criminal codes treat assault as a misdemeanor that can be handled with fines or

possibly a year in jail. If the assault charge is found to involve physical injury, that raises the

stakes to aggravated assault. The charge may then become a felony and can result in sentences

of 10-20 years in prison depending on the facts and the criminal history of the accused. This can

also increase the size of civil awards substantially.

Understanding the elements of a criminal charge of assault requires an experienced criminal

defense attorney. Your attorney will examine the facts of the case and compare them to the

elements of the statute charged and render you an opinion as to whether the prosecution can

prove its case beyond a reasonable doubt; because if the state fails to prove any one element

of the charge, you are entitled to an acquittal. This would be difficult for a non-attorney to

understand.

The legal elements of assault also may vary from state to state. In general, assaults are general

intent crimes. In some situations, for example, if a defendant puts intent at issue by claiming

that the assaultive behavior was an accident or was a misunderstanding, the prosecutor must

then prove intent by using the accused person’s prior bad acts, regardless of whether or not

any charges were filed on the prior occasion. While, in some cases, assaultive intent may seem

hard to prove, you do not want to be out there on your own. Your criminal defense attorney is

your best source of information and defense against these charges.

If you end up before a jury by pleading not guilty, how your defense case is presented in court

will make the difference in an acquittal or being found guilty. If the circumstances of the assault

charge are disputed, you may have a jury trial. In any case, you need an experienced and well

respected criminal defense attorney on your side.

Another serious and life- long consequence of an assault conviction is deportation for

permanent lawful residents or those who have no legal right to be in the United States.

Generally, any crime of violence that has as an element “the use, attempted use, or threatened

use of physical force against the person or property of another (Title 18 United States Code §

16) where the term imposed is at least one year, whether or not any or all of that term is stayed

or suspended at time of sentencing” constitutes an “aggravated felony” under Federal

Immigration law. Certain offenses defined as misdemeanors under State Law may be

considered “Aggravated Felonies” under Federal Law. Any conviction of a non-citizen for an

“aggravated felony” as defined under Title 8 United States Code § 1101(a) (43) will result in

removal/deportation, exclusion and denial of naturalization. For example, if a non-citizen who

has lived here his entire life and has a family in the United States, is convicted of a

misdemeanor assault and receives a probationary term of three years, he may be facing

deportation as an additional consequence of the assault conviction.

Roseline D. Feral has 28 years of experience as a criminal defense attorney. She has tried more

than one hundred jury trials, both in Federal and State courts. She has the experience and

professional reputation to help you defend yourself against a charge of assault. To obtain her

help, call her at 619-232-1010 for a thirty minute free consultation.

Find the best criminal defense attorney and aggravated assault law services online in San

Diego, CA at Roseline D. Feral. For More information visit at

http://sandiegoscriminaldefenseattorney.com/