Plea Options for Simple Assault Charges

Learn what's at stake when faced with simple assault charges and what to consider when weighing your plea options.

By , Attorney · New Mexico School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Updated June 27, 2022

Several plea options are available to a person charged with simple assault. The specific options depend on state laws and the policies of the local court in which the defendant is charged. Whether these options are right for you will largely depend on your criminal past and the facts of the case.

Simple Assault Charges: What Do They Mean?

Every state defines and penalizes crimes differently. Typically, the underlying definition of a crime is fairly similar across states. States tend to vary more when it comes to the penalties involved. But assault is unique in that assault can mean one thing in one state and a totally different thing in another. Assault can mean an imminent threat of harm to another, actual harm to another, neither, or both, depending on where you live. Some states don't have an "assault" crime and, instead, use the term "battery" or "attempted battery."

For purposes of this article, we'll briefly review the two most common ways states define "simple assault." (But your state might call it misdemeanor assault, the lowest degree of assault, simple battery, or some other term.)

Simple Assault as the Threat of Harm

In some states, the crime of assault consists of threatening behavior and does not involve any physical touching. Under this definition, a person commits an assault by threatening another person with immediate bodily harm through their behavior or statements. Generally, the defendant must appear to have the ability to carry out the threat and cause another to feel fear. An example of this type of assault is an able-bodied man yelling moving closer and closer to another person (perhaps with a drawn fist or a knife within reach) and yelling that he will cut, hit, or otherwise physically injure the person.

Simple Assault as Physical or Offensive Touching

Other states define assault as an intentional physical attack or offensive touching of another person. This type of assault can involve pushing someone during an argument, striking or slapping a person, pulling someone's hair, grabbing another's arm, spitting on a person, or attempting to do any of those things without making contact. Under some states' criminal codes, the victim must suffer some physical harm—although the harm can be very minimal, such as slight pain from being pushed. Other states don't require any pain or harm and the offensive contact is enough.

Will I Go to Jail for Simple Assault?

In most instances, a person charged with simple assault will face a misdemeanor conviction. Every state defines and penalizes crimes differently, but most misdemeanor offenses carry the possibility of up to a year in jail and a fine. This sentence represents the maximum that the judge can impose, which is generally reserved for repeat offenders or egregious facts involved, such as a vulnerable victim.

The possibility of jail time doesn't necessarily mean you will go to jail. The chances tend to increase, though, if you caused bodily harm to the victim or have prior assault convictions. In these situations, you're likely to at least spend a few days or more in jail.

What Are the Plea Options for Simple Assault Charges?

Depending on the facts of your case, your attorney might advise pleading not guilty or agreeing to a plea bargain with the prosecutor. Both come with pros and cons.

Pros and Cons of Pleading Not Guilty to Simple Assault Charges

By pleading not guilty, you make the prosecutor prove its case beyond a reasonable doubt—a high bar to reach. If the prosecution's case has any potential weaknesses in it, your attorney can attempt to poke holes in the case and argue to the judge or jury to acquit. Perhaps, the prosecution's eyewitness to the assault isn't a great witness (say the person is elderly or has bad eyesight), or you have an alibi who says you weren't even the attacker. Going to trial also means you can present evidence of any defenses you might have, such as self-defense or defense of others. If you're found not guilty, you avoid a criminal conviction.

Pleading not guilty has its cons as well. By not taking a plea deal, the outcome of your case is far from certain—you could be found guilty and the judge could throw the book at you. Going to trial also means time and money. Trials can take months to even get scheduled. Part of that time you could spend in pretrial detention if you can't afford bail. And you'll spend a lot more on defense attorney fees.

Pros and Cons of a Plea Agreement in a Simple Assault Case

Under a typical plea agreement, the defendant pleads guilty or no contest to one or more charges, and the parties agree on a proposed sentence to present to the judge. The judge ultimately determines the appropriate sentence but usually will follow reasonable agreements between the prosecution and the defense.

Plea agreements come with a level of certainty and quick closure, which are two of the biggest pros when it comes to weighing options. As discussed above, going to trial comes with inherent risks of being found guilty and receiving a harsher sentence. If your case has some facts that will not likely sit well with the judge or jury, a plea agreement could be your best option.

But a plea agreement means you plead guilty (or no contest) and are convicted. You won't have the opportunity to challenge the prosecutor's case or present any defenses. And while it's not that common, the judge could decline to accept the proposed sentence and impose a harsher sentence.

The above are all issues to discuss with your attorney and seriously contemplate before making a decision.

Types of Plea Agreements in Simple Assault Cases

If you're contemplating a plea agreement, below are some of the options generally available. A lot depends on the facts of your case, your criminal history, and your willingness to rehabilitate.

Sentencing Agreements With Jail Time

In some cases, the defendant might have no choice but to agree to spend some time in jail. Circumstances in which a prosecutor may require an agreement to a jail sentence can include:

  • the defendant has a criminal record
  • the assault charge involves domestic violence and the state's laws require a mandatory jail sentence for the charge due to prior convictions for domestic violence, or
  • the facts of the case are particularly serious and the defendant was a breath away from being charged with a more serious crime.

Sentencing Agreements With No Jail Time or Time Served

If the defendant has no criminal record or a short rap sheet and no violent convictions, or if mitigating circumstances exist in the case, the prosecutor may agree to the defendant serving his entire sentence on probation with no time in jail. A defendant who already spent a day or two in jail after arrest might agree to "time served," meaning the agreement includes a jail sentence but the defendant already completed it.

Deferred adjudication or sentence. It's possible that the prosecutor might even agree to the charges being dismissed once the defendant completes probation. Often referred to as deferred adjudication or sentence, here the court might accept the guilty plea but hold off on entering a conviction, subject to the defendant complying with all the probation terms. This option might only be available to certain first-time offenders.

Suspended sentence. In other cases, the prosecutor might allow the defendant to serve the entire sentence on probation, without any jail time or a few days of jail time, but with no option for the charges to be dismissed. The defendant will have a conviction on his record. This is often referred to as a suspended sentence.

Agreement to Plead Guilty to a Lesser Charge and Drop Assault Charges

Another option for a defendant charged with simple assault may be to plead to a lesser charge. A prosecutor may agree to dismiss an assault charge if the defendant pleads guilty to a charge such as disorderly conduct, disturbing the peace, or fighting in public, especially if the incident was a shouting or shoving match or a scuffle between two equally-matched people. An example might be a bar fight or an argument between neighbors that got out of hand but was not particularly serious. A prosecutor is most likely to agree to a plea to a lesser charge if the defendant has a minimal criminal record and the incident did not involve serious violence, family violence, or an attack on a more vulnerable person.

Consult an Attorney

If you're charged with simple assault, contact a criminal defense attorney immediately to discuss your options. A local attorney will be familiar with the prosecution policies in the local courts and with sentencing and diversion programs that might be available to you.

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