Domestic assault in Nebraska consists of intentionally, knowingly or recklessly causing physical injury to an intimate partner. An intimate partner is:
- a spouse of the offender
- a former spouse
- someone with whom the defendant has children, or
- someone whom the defendant is dating or dated in the past.
Domestic assault can be a misdemeanor or a felony, depending on the offender’s intent and the injury caused by the assault. (Neb. Rev. Stat. Ann. §§28.323.)
Domestic Assault in the First Degree
Intentionally or knowingly causing serious bodily (physical) injury to an intimate partner is a domestic assault in the first degree. This crime is a Class III felony if it is the offender’s first offense. If the defendant has a previous conviction for domestic assault in the first degree, the offense is a Class II felony.
Domestic Assault in the Second Degree
Intentionally or knowingly causing bodily injury to an intimate partner with a dangerous instrument is a domestic assault in the second degree. This crime is a Class IIIA felony if a first offense and a Class III felony if a second or subsequent offense.
Domestic Assault in the Third Degree
Domestic assault in the third degree consists of:
- intentionally or knowingly causing physical injury to an intimate partner
- threatening an intimate partner with immediate physical injury, or
- threatening an intimate partner in a menacing manner.
Domestic assault in the third degree is a Class I misdemeanor if it is a first offense. If the offender has a previous conviction for domestic violence and the current domestic assault involved inflicting bodily injury or threatening immediate bodily injury, he will be charged with a Class IV felony. If the defendant has a previous domestic violence conviction but only made general menacing threats to the victim that he would harm the other “some time” and not necessarily immediately, then he still will only be charged with a Class I misdemeanor.
Actions that Constitute an Assault
Someone acts knowingly or intentionally when they intend to do an act and intend the consequence. For example, shooting at someone to kill or injure the person is a knowing and intentional act; but accidentally firing a weapon is not.
A reckless act is one that is committed without regard for the outcome or attention to the risk involved. Recklessness is more than simple negligence, or carelessness. Firing a gun to scare someone, without intending to injure the person but without proper regard for the risk to that person, could be assault in the second degree if the person is injured.
Bodily injury is an injury involving physical pain or impairment. It includes less serious harm such as bruising, cuts, and abrasions
Serious bodily injury involves substantial risk of death or serious permanent disfigurement or loss or impairment of a body part or organ. A gunshot wound, knife wound, serious blow to the head that causes a concussion or a brain injury; and loss of a body part such as a finger, hand or leg are all serious bodily injuries under Nebraska law.
Dangerous Instrument or Deadly Weapon
A dangerous instrument or deadly weapon is an object or weapon that is capable of causing death or serious bodily injury if it is designed for that purpose or is used in a manner that could produce such injury. Firearms and knives are deadly weapons by definition but rocks, steel-toed boots and a baseball bat are all deadly weapons because, while they are not deadly by definition, they could be used in a manner that would cause serious harm. While body parts like hands and feet could cause death or serious bodily injury, they are not considered dangerous instruments under Nebraska law because they are not objects or instruments that are separate from the body.
Penalties for Domestic Assault in Nebraska
Domestic assault in the first degree
- The penalty for a Class III felony is one to twenty years in prison or a fine up to $25,000 or both, and
- The penalty for a Class II felony is one to fifty years in prison.
Domestic assault in the second degree
- The penalty for a Class IIIA felony is up to five years in prison or a $10,000 fine or both, and
- The penalty for a Class III felony is one to twenty years in prison or a fine up to $25,000, or both.
Domestic assault in the third degree
- The penalty for a Class I misdemeanor is up to one year in jail, or a fine up to $1000, or both,and
- The penalty for a Class IV felony is up to five years in prison and a fine up to $10,000.
For any sentence over six months, the court can send the defendant to jail or prison, so long as the corrections department has certified that it has programs and facilities available for those sentenced to less than one year. This means that a person convicted of a misdemeanor and sentenced to more than six months can be required to serve his time in prison; and a person convicted of a felony but sentenced to less than one year can serve his time in county jail.
Pregnant victim enhancement
If the victim of a domestic assault is pregnant, the offender will be punished for the next level of offense. For example, an offender guilty of a Class I misdemeanor will be subject to the sentence for a Class IV felony. (Neb. Rev. Stat. Ann. §28.115.)
A person convicted of domestic assault in Nebraska can be required to pay restitution, which involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling or repair or replacement of damaged property.
Probation and Setting Aside Conviction
A court in Nebraska can impose probation for an assault conviction rather than imprisonment – up to two years for a misdemeanor conviction and up to five years for a felony conviction. A person on supervised probation must meet with a probation officer and comply with conditions of probation such as treatment, maintaining employment and avoiding any further criminal activity or arrests. If the defendant successfully completes probation for a misdemeanor conviction, he can request that the court set aside his conviction. If the court grants the request, setting aside the conviction nullifies the conviction and it will not be part of the defendant’s permanent record.
Pleas and Pre-Trial Options
If you are facing a charge of domestic assault Nebraska, consider speaking with a lawyer. An attorney can investigate the case and determine if you were wrongfully charged or there are other reasons why the case should be dismissed before trial. An attorney also may be able to negotiate a plea bargain with the prosecutor on your behalf, or prepare a defense and represent you at trial if you believe you have been wrongly accused or if there are no reasonable plea options. Prosecutors sometimes negotiate and agree to a lighter sentence in exchange for a guilty plea or to the defendant pleading guilty to a different, less serious crime.
The Value of Good Representation
A conviction for domestic assault becomes part of your permanent criminal record (unless set aside after a term of probation). If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. A convicted felon loses the right to vote, hold public office, serve as a juror (for seven years) and carry or own firearms. In certain circumstances, a felony conviction also can result in loss of a professional license. A conviction for a violent crime – misdemeanor or felony – can hurt you when you are looking for a job or applying to rent a house or apartment.
Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of this into consideration, assist you in making decisions about your case, and protect your rights.