Assault with a Deadly Weapon in Montana

Assault with a deadly weapon is a felony crime in Montana. Learn about the laws and penalties here.

Assault with a weapon in Montana, more commonly known as “assault with a deadly weapon,” is a felony crime. Offenders face the possibility of severe penalties, including large fines and substantial time in state prison. Prosecutors may bring a charge of assault with a weapon in the circumstances explained below.

(Mont. Code Ann. § 45-5-213.)

Montana recognizes another type of felony assault, called “aggravated assault,” which occurs when the victim suffers (or is threatened with) serious bodily injury. For more information on aggravated assault, see  Aggravated Felony Assault in Montana.

Less serious assaults are charged as misdemeanors. For more information on misdemeanor assault in Montana, seeMisdemeanor Assault in Montana.

Knowingly Causing Bodily Injury with a Weapon

Assault with a weapon can be charged when the offender purposely or knowingly uses a weapon to cause bodily injury. Common examples of assault with a deadly weapon include using a handgun to shoot or injure someone, or stabbing someone with a switchblade.

Note that Montana defines a weapon as an instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious physical injury. This means that items that are normally harmless can be viewed as “weapons” if used to cause bodily injury. For example, a pillow is a weapon if it is used to smother someone; likewise, a pot of hot coffee is a weapon if intentionally used to burn someone. Even tennis shoes on the feet of an attacker can be a weapon, if the shoes cause an injury.

(Mont. Code Ann. § § 45-5-213, 45-2-101.)

What Constitutes Acting “Purposely or Knowingly?”

In Montana, a person acts purposely when his conscious objective is to achieve a particular result. A person acts knowingly when he is aware that it is highly probable that a particular result will be caused by the person's conduct.

(Mont. Code Ann. § 45-2-101.)

Using a Weapon to Place the Victim in Fear of Serious Bodily Injury

Another way to commit assault with a weapon is to use a weapon with the intent to make that victim fear an imminent assault that would cause serious injury or death. In Montana, serious bodily injury is a physical injury that creates a substantial risk of death or causes serious permanent disfigurement or protracted loss or impairment of a bodily member or organ.

For example, pointing a loaded handgun at a store clerk is assault with a weapon because of the fear of serious injury created by the action. Even pointing an  unloaded  or inoperable handgun at a store clerk is assault with a weapon, unless it is reasonable for the clerk to know that the weapon is unloaded or inoperable, and thus possesses no real threat.

The victim’s fear must be reasonable—the reaction that any reasonable person would have in the same situation. For example, demanding money from a bank teller while brandishing a large pistol would create a reasonable fear of serious bodily injury. In contrast, striking someone with a neon-yellow foam sword would not be assault with a weapon, as a reasonable person would know that serious injury or death would not result from such an action.

(Mont. Code Ann. § § 45-5-213, 45-2-101.)

Penalties for Assault with a Weapon

Assault with a weapon is punishable by a term in the state prison of up to 20 years, a fine of up to $50,000, or both. The sentencing judge may not sentence an offender to pay a fine unless the offender is or will be able to pay the fine. In addition to any sentence imposed, if the person convicted of assault with a weapon is a partner or family member of the victim, the convicted person is required to pay for and complete a counseling assessment for the victim.

(Mont. Code Ann. § § 45-5-213, 46-18-231.)

Assaulting Protected Victims

Montana law provides for additional penalties if the victim of the assault is a protected victim, as described below.

Assaulting a partner or family member

Repeated instances of negligently causing bodily injury to a partner or family member with a weapon can be considered a felony and punishable by up to five years in state prison. To act negligently, a person must consciously disregard a risk that the result will occur. For example, allowing young children to play with loaded handguns is an example of acting negligently.

For more information on assault and domestic violence, see  Montana Domestic Violence Laws.

(Mont. Code Ann. § § 45-5-206, 45-2-101.)

Assaulting a peace or judicial officer

A person commits felony assault of a peace or judicial officer if the person purposely or knowingly causes:

  • reasonable apprehension of serious bodily injury to a peace or judicial office by use of a weapon, or
  • bodily injury to a peace or judicial officer with a weapon.

Punishments include two (and up to ten) years in prison, a fine up to $50,000, or both. If the offender causes serious bodily injury to the peace or judicial officer, then punishments include five (and up to 20) years in prison, a fine up to $50,000, or both.

(Mont. Code Ann. § 45-5-210.)

Assaulting a minor

A person commits felony assault on a minor if the offender negligently causes bodily injury with a weapon to a victim under the age of 14 and the offender is over the age of 17. Penalties include up to five years in prison, a fine of $50,000, or both. If the victim is under 36 months of age, then the maximum prison sentence is ten to forty years, depending on the harm suffered by the victim and the offender’s criminal history.

(Mont. Code Ann. § 45-5-212.)

Assaulting a sports official

A person commits assault upon a sports official if the offender negligently causes bodily injury with a weapon to a sports official acting in performance of his duties. Assaulting a sports official is a misdemeanor, punishable by up to six months in jail, a fine of up to $1,000, or both.

(Mont. Code Ann. § 45-5-211.)

Hate Crimes Sentence Enhancement

Assaulting a victim because of his race, creed, religion, color, national origin, or involvement in civil rights or human rights activities can add two (and up to ten) years in prison to an existing assault prison sentence.

(Mont. Code Ann. § 45-5-222.)

See a Lawyer

It is a good idea to consult with a lawyer as soon as you are charged with assault with a weapon, especially given the possibility of jail time. Your attorney can help you to explore your options, such as pursuing diversion programs, raising defenses, or negotiating a plea bargain, in order to achieve the best possible outcome in your case.

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