Updated October 30, 2019
In Nebraska, misdemeanor assault is an assault in the third degree and consists of either:
- intentionally, knowingly or recklessly causing bodily injury to another person, or
- threatening another in a menacing manner.
(Neb. Rev. Stat. Ann. § 28-310.)
This article concerns misdemeanor assaults only. Assault on a police officer, probation officer or corrections department employee; assault committed with a dangerous weapon; and assault that results in serious bodily injury – more than scrapes or bruises or a bloody lip – are more serious felony crimes.
For information about aggravated assault, also known as assault in the first degree, see Felony Assault in Nebraska. For information on assault with a deadly weapon, see Assault with a Deadly Weapon.
Actions that Constitute an Assault
Someone acts knowingly or intentionally when they intend to do an act and intend the consequence. For example, extending one's foot in the pathway of a walking person in order to trip him is a knowing and intentional act; but losing one's balance and falling, thereby causing the person behind you to fall also, 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. Pushing someone out of the way on an escalator so that you can get through, without intending to injure the person but without proper regard for the risk to that person, could be an assault if the person falls and is injured.
Threatening a person in a menacing manner means to threaten another person with violence – using actions or words – in a manner that intentionally causes the other person to feel afraid and believe he is about to be physically harmed.
What Constitutes "Serious Bodily Injury" and "Bodily Injury?"
In Nebraska, serious bodily injury means bodily injury that involves a substantial risk of death, or that involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body. For example, a knife wound that requires stitches, lost finger, or collapsed lung are usually considered serious bodily injury.
Bodily injury means physical pain, illness, or any impairment of physical condition. A sprained ankle, deep bruise, or pinched nerve are common examples of bodily injury.
(Neb. Rev. Stat. Ann. § 28-109.)
Less Serious Assaults
Assault in the third degree usually is a Class I misdemeanor. But if the assault consists of a fight entered into by consent of both parties, such as a bar fight where two people agree to "take it outside," the offense is a less-serious Class II misdemeanor.
(Neb. Rev. Stat. Ann. § 28-310.)
Domestic Assault
Domestic assault is an assault against 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 is a Class I misdemeanor if it is a first offense, but is punished more harshly for subsequent offenses.
(Neb. Rev. Stat. Ann. § 28-323.)
Assault with a Bodily Fluid Against a Public Safety Officer
Assault with a bodily fluid against a public safety officer is misdemeanor assault when a person knowingly and intentionally strikes a public safety officer with a bodily fluid (for example, blood, urine, saliva, and feces). The crime is a Class I misdemeanor, punishable by up to one year in jail, a fine of up to $1,000, or both.
(Neb. Rev. Stat. Ann. § § 28-934, 28-106.)
Penalties for Misdemeanor Assault in Nebraska
A person convicted of assault in the third degree in Nebraska faces the following possible penalties:
- for a Class I misdemeanor, up to one year in jail, a fine of up to $1,000, or both, and
- for a Class II misdemeanor, up to six months in jail, a fine of up to $1,000, or both.
(Neb. Rev. Stat. Ann. § § 28-310, 28-106.)
For any sentence over six months in Nebraska, 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.
(Neb. Rev. Stat. Ann. § 28-106.)
Hate Crime and Pregnant Victim Enhancement
Under Nebraska's Hate Crime statute, an assailant who commits an assault against a person because of the person's race, religion, gender, sexual orientation, age or disability or other status listed in the statute must be punished at the next level of offense. This means that a Class 1 misdemeanor will be punished like a Class IV felony, punishable by up to five years in prison, a fine up to $10,000, or both. If the victim of an assault in the third degree is pregnant, the offender is subject to the same enhanced punishment.
(Neb. Rev. Stat. Ann. § § 28-111, 28-115, 28-105.)
Restitution
A person convicted of 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.
(Neb. Rev. Stat. Ann. § § 29-2280, 29-2281.)
Probation and Setting Aside a Conviction
A court in Nebraska can impose probation for an assault conviction rather than imprisonment – up to five years' probation for a felony and up to two years' probation for a misdemeanor. 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. Defendants in Nebraska who successfully complete probation for a misdemeanor conviction can request that the court set aside their convictions. In considering the request, the court will consider the defendant's criminal history, behavior on probation, and evidence of rehabilitation. 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.
(Neb. Rev. Stat. Ann. § § 29-2263, 28-105.)
Pleas and Pre-Trial Options
If you are facing a charge of assault in Nebraska, 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 may 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 assault in the third degree or 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, 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.
