Monday, October 15, 2012

That's Assault, Brother.

“Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.  

In legal terms, it has two meanings.  Let’s say Jim and Toby are hanging out at Blandford’s store.  Toby was all like, “you’re book is weak.”  So Jim smacked Toby in the mouf, and then Jim broke out.  Assuming Toby wants to pursue all legal options, he can choose to initiate both Civil and Criminal proceedings against Jim.  Civilly, Jim has committed a “Battery” against Toby.  “Assault,” in civil terms, is an act that puts someone in anticipation of a battery.

Toby can also go to the County Attorney’s office and swear out a charge against Jim.  In criminal terms, the mouf smack was an “Assault.”  Most likely, this would be charged as  “Assault in the 4th Degree” (hereinafter, “Assault 4”) pursuant to KRS 508.030.  A person is guilty of Assault 4, if he or she intentionally or wantonly causes physical injury to another person; or with recklessness, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Jim would most likely be prosecuted under subsection 1(a) of KRS 508.030, because he intentionally caused a physical injury (albeit a mild one) to Toby.  Assault 4 is a Class A Misdemeanor, so Jim would be facing up to one (1) year in jail.

Pursuant to the KRS and anyone with a lick of common sense, the act of intentionally striking someone WITH something makes the act more culpable than intentionally striking someone with a fist alone.  That is a common theme with the Assault statutes.  Also, and just as obviously, causing more serious injury to someone will get you in more trouble.

About this time, we should probably dissect the difference between “physical injury” and “serious physical injury.”  And maybe figure out what exactly counts as a “deadly weapon.”  And “dangerous instrument.”  That might be it.  We’ll see - I haven’t really planned this out.

The definitions - if you are following along in the KRS* - are actually located in the “general provisions” of the Kentucky Penal Code section of the KRS - NOT in the Assault section.  So go to the 500 section, not 508.

"Physical injury" means substantial physical pain or any impairment of physical condition.  If you are wondering what “substantial physical pain” means, join the club.

"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.  If you are thinking that this is a pretty high bar for damage in an Assault case, you are right.  This definition provides the basis for some pretty good criminal defense work in the world of Assault.

"Deadly weapon" means any of the following:
(a) A weapon of mass destruction;
(b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;
(c)  Any knife other than an ordinary pocket knife or hunting knife; 
(d) Billy, nightstick, or club; 
(e)   Blackjack or slapjack; 
(f) Nunchaku karate sticks;
(g) Shuriken or death star; or
(h) Artificial knuckles made from metal, plastic, or other similar hard material.

No, I didn’t make that up.  The KRS actually uses the words “Nunchaku karate sticks” and “death star.”

"Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.

Ok - so we’ve defined the words we need to define - let’s move on to other levels of Assault.

Assume that Assault 3 is reserved for Assault on an officer of the law, teacher, or other similar public servant.  We aren’t going to drone on and on about Assault 3.  Don’t hit a public servant.

Rather, let’s move on to Assault 2 - a Class C Felony which carries a penalty of 5-10 years in prison.  As you might imagine, the reason for the increased penalty is because the acts enumerated in the statute are more serious.  Pursuant to KRS 508.020, a person can be guilty of Assault 2 by doing any of the following:

(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c)  He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

As you can see, in order to be guilty of Assault 2, generally you have to either 1) cause a serious physical injury OR 2) cause a physical injury with a deadly weapon.

That brings us to Assault in the First Degree, or “Assault 1.”  If you take a look at KRS 508.010, you will find the requirements for this particular offense, which are as follows:

(1)      A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b)   Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

Assault 1 is a pretty serious deal.  It is a Class B Felony, which means the actor is facing 10-20 years in prison.

Today, we’ve spent quite a bit of time talking about what makes a person guilty of Assault.  Bear in mind that we haven’t even scratched the surface on defenses to Assault at this point.  Any decent Louisville Assault lawyer would need to study your case in order to determine whether self-defense, anticipatory self-defense, defense of others, choice of evils, or intoxication may be ticket or tickets to your freedom.  Also "some people deserve to be smacked" may work, depending on the alleged victim.

If you have been charged with Assault in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you need an attorney.  Call an experienced Louisville Assault lawyer today.  For a free consultation, call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.  

Individual Attention.  Extraordinary Results.

*If you’re doing that, stop it.

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