Felony Assault in the First Degree in Delaware

Delaware classifies assault by degree, depending on a variety of factors, such as the intent of the accused, the seriousness of the injury, the means used to inflict the injury, and the age and profession of the victim. Assault in the first degree (the most serious) and assault in the second degree are felonies, while assault in the third degree and offensive touching are misdemeanors.

To learn about assault in the second degree, see Felony Assault in the Second Degree in Delaware. For more information on assault with a deadly weapon, see Assault with a Deadly Weapon in Delaware.

To learn about assault in the third degree, see Misdemeanor Assault and Offensive Touching in Delaware.

What Constitutes Assault in the First Degree?

A person commits assault in the first degree, classified as a Class B felony, in any of the seven ways discussed below:

  • by intentionally causing serious physical injury to another person with a deadly weapon or a dangerous instrument
  • by intentionally disfiguring another person seriously and permanently, or by intentionally destroying, amputating or permanently disabling a member or organ of another person's body
  • by recklessly engaging in conduct which creates a substantial risk of death to another person, and thereby causing serious physical injury to another person
  • by intentionally or recklessly causing serious physical injury to another person while engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony
  • by intentionally causing serious physical injury to a law-enforcement officer, a volunteer firefighter, a full-time firefighter, emergency medical technician, paramedic, fire police officer, fire marshal, correctional officer, sheriff, a deputy sheriff, public transit operator, code enforcement constable or a code enforcement officer who is acting in the lawful performance of duty
  • by intentionally causing serious physical injury to the operator of an ambulance, a rescue squad member, licensed practical nurse, registered nurse, paramedic, licensed medical doctor or any other person while such person is rendering emergency care, or
  • by intentionally causing serious physical injury to another person who is 62 years of age or older.

(Del. Code Ann. tit. 11, § 613.)

Lack of knowledge of a person’s age

Delaware law specifically provides that an accused’s lack of knowledge that a victim’s age exceeds 62 does not constitute a defense to a charge of assault in the first degree.

(Del. Code Ann. tit. 11, § 613.)

What distinguishes intentional and reckless conduct?

Intentional behavior occurs when a person acts with the conscious objective to cause a result or to engage in specific conduct. For example, aiming a gun at a person and pulling the trigger constitutes an intentional act.

A person acts recklessly by acting with a conscious disregard of a substantial and unjustifiable risk that a result will occur or that a circumstance exists. The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. For example, firing bullets through a wall into an occupied apartment constitutes recklessness.

(Del. Code Ann. tit. 11, § 231.)

What constitutes “serious physical injury?”

Serious physical injury means either:

  • physical injury that creates a substantial risk of death, or
  • physical injury that causes serious and prolonged disfigurement, prolonged impairment of health, prolonged loss or impairment of the function of any bodily organ, or the unlawful termination of a pregnancy without the consent of the pregnant female.

Knocking someone’s teeth out to the extent that victim cannot chew properly for six months is an example of serious physical injury.

(Del. Code Ann. tit. 11, § 222.)

What constitutes a “deadly weapon?”

A deadly weapon can be a firearm, a bomb, a knife of any sort (except a folding pocketknife having a blade 3 inches or less in length and carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain, or ice pick. It can also be any item constituting a “dangerous instrument” that is used, or attempted to be used, to cause death or serious physical injury.

(Del. Code Ann. tit. 11, § 222.)

To learn more about this topic, see Assault with a Deadly Weapon in Delaware.

What constitutes a “dangerous instrument?”

A dangerous instrument means any instrument, article or substance that, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. The definition includes any “disabling chemical spray,” as that term is defined by statute. The definition also includes any electronic control devices designed to incapacitate a person, including a neuromuscular incapacitation device (a Taser). Such a device uses electrical current to disrupt a person’s ability to control his or her muscles.

A judge or jury must often examine the facts of a case and determine whether an alleged victim has suffered serious physical injury or whether an object constitutes a deadly weapon or a dangerous instrument. For example, in one case a police officer’s description of a stick used by the defendant, without introduction of the stick into evidence, did not establish that the defendant used a “billy.”

(Del. Code Ann. tit. 11, § 222.)

Penalties for Assault in the First Degree

Someone convicted of assault in the first degree can be subjected to any or all of the following penalties:

  • Incarceration. Imprisonment is permitted for not less than two years nor more than 25 years, with a presumptive sentence of two to five years. Delaware courts use complicated sentencing guidelines, which take numerous factors into consideration, such as a defendant’s past criminal history. The presumptive sentence can be altered after applying the sentencing guidelines.
  • Fines and restitution. The court can impose a fine of any amount it deems appropriate, plus restitution (an order directing the defendant to pay money to the victim that will compensate the victim for the direct monetary losses suffered as a result of the crime).
  • Probation. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling.
  • Community service. Courts often include as a part of probation the requirement that the defendant work for a specified number of hours with court-approved organizations, such as charities.

(Del. Code Ann. tit. 11, § 4205.)

See a Lawyer

If you are facing a charge of assault in the first degree, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer understands the often complicated meaning of statutes and procedures. Additionally, a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of charges or a reduction in asked-for penalties, such as less prison time, no prison time, probation, and lower fines. Also, in the event of a conviction, an attorney’s knowledge of Delaware’s complex sentencing guidelines may be crucial to ensuring the most advantageous sentence. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. Finally, if you decide to go to trial, having a good lawyer on your side will be essential.


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