Aggravated Assault With a Deadly Weapon

Penalties for assault increase when a defendant uses or threatens to use a deadly weapon.

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

Many states' criminal codes divide assault crimes by degrees or severity. Aggravated assault with a deadly weapon ranks among the most serious of these. A defendant charged with this offense faces stiff penalties, including lengthy prison sentences.

This article will first review a few of the basics of assault crimes and then discuss the definitions and penalties for aggravated assault with a deadly weapon.

Differing Definitions of Assault

States differ in their definitions of assault. Some states define assault as the intentional use of force or violence against another, such as punching a person or striking the victim with an object. In other states, assault need not involve actual physical contact and is defined as an attempt to commit a physical attack or as intentional acts that cause a person to feel afraid of impending violence. A state might also refer to both of these definitions.

What Is the Difference Between Simple and Aggravated Assault?

Simple assault is the least serious form of assault and usually involves minor or no physical injuries or a limited threat of violence to a victim. Some examples are slapping, punching, or shoving someone, hair pulling, or hitting a wall next to a victim. (Although if any of these acts does result in serious harm, the crime would no longer be simple assault.)

Aggravated assault involves circumstances that make the crime more serious in terms of injuries or risk of injuries. Examples of aggravated assault include:

  • striking or threatening to strike a person with a weapon or dangerous object
  • shooting a person with a gun or threatening to kill someone while pointing a gun at the victim
  • inflicting serious physical injury to a victim, and
  • attacking a member of a protected class, such as a police officer, healthcare provider, social services worker, or developmentally disabled or elderly person.

What Is Aggravated Assault With a Deadly Weapon?

Just as it sounds, the crime of aggravated assault with a deadly weapon requires that the offender use or threaten to use a deadly weapon in the commission of the assault.

What Are Deadly Weapons?

An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons because they are inherently dangerous and even designed to cause injury.

Other objects, such as rocks, bricks, or even a boot can constitute a deadly weapon if the object is used in a manner likely to cause or threaten serious bodily injury or death. A person wearing a heavy, steel-toed boot, for instance, could cause serious injury or even death by kicking another person with them. Threatening to beat someone up with brass knuckles or to "break your legs" while wielding a metal bar also constitutes assault with a deadly weapon, because the threat and menacing behavior occur while the offender wields a weapon that likely could cause death or severe injury.

What Are the Elements of Aggravated Assault With a Deadly Weapon?

In order for a defendant to be convicted of aggravated assault with a deadly weapon, the prosecutor or district attorney must prove every aspect of the crime (called the "elements" of the crime) beyond a reasonable doubt.

The evidence must show that the defendant intentionally threatened the victim with a deadly weapon, and either:

  • this threat caused the person to fear immediate serious violence, or
  • the defendant actually attempted to or applied physical force to the victim with a deadly weapon.

The prosecutor's case must include evidence about the weapon and how it was "deadly," either by showing that the weapon used was inherently dangerous or that an object was used in such a way that it did or could have caused death or serious bodily injury. Evidence of the object used and the serious injury inflicted may be enough to establish the use of a deadly weapon. For example, if heavy work boots resulted in serious internal abdominal injuries, that's probably enough to convince the judge or jury that the boots were used in such a way as to make them deadly weapons.

Defenses to Charges of Aggravated Assault With a Deadly Weapon

Defendants charged with aggravated assault with a dangerous weapon have the usual defenses available to all criminal defendants, starting with "You've got the wrong person, it wasn't me." In addition, a defendant can claim self-defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself or another person from the alleged victim's attack. That defense may take the form of showing that the gun or weapon actually was in the victim's possession.

Other possible defenses are that the defendant's actions were purely accidental and that he had no criminal intent; or an insanity defense, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior or to understand what he was doing or that his actions were unlawful.

What Are the Penalties for Aggravated Assault With a Deadly Weapon?

Aggravated assault with a deadly weapon is usually a felony punishable by prison time that can range from a few years to a few decades, depending on the specific provisions of each state's sentencing statute or sentencing guidelines. Crimes not resulting in any bodily harm to a victim typically carry the least severe penalties. As the level of harm or, sometimes, risk of harm increases, penalties increase as well.

What Factors Will Judges Consider in Sentencing?

In determining a sentence, judges usually consider defenses the defendant presented at trial, whether the defendant has taken responsibility for the crime and shows remorse, circumstances surrounding the crime, the extent of any injuries incurred, the type of weapon used, the accused's prior criminal record, and, in some situations, the victim's background or relationship to the defendant.

Sentence Enhancements for Assaults Involving Firearms or Protected Victims

In some states, assault against a special victim, like a police officer or elderly person, carries more severe penalties or is subject to sentence enhancement. Sentence enhancements permit the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm. Finally, in some states, the penalties are even more severe for certain types of firearms such as automatic weapons, machine guns, or guns that shoot metal-resistant bullets.

Legal Representation

Aggravated assault with a deadly weapon is a very serious felony charge; a conviction for this crime can seriously impact your life. You could face a lengthy prison sentence and the stigma of being a convicted felon. Convicted felons cannot vote or possess firearms and often have difficulty finding employment. A competent criminal defense attorney can help you fight an aggravated assault charge, protect your rights, and achieve the best possible outcome. An attorney will investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process.

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