Assault is an intentional act that causes fear of imminent bodily harm and/or an offensive touching. Assault is both an intentional tort and a criminal offense. That means, assault can serve as the basis for a civil lawsuit as well as criminal charges.

Assault can also serve as the basis for criminal charges, as every state has a criminal statute for assault. This means assault can be prosecuted in a state court, resulting in jail time and/or fines for the defendant.

In many states, assault is divided into degrees. Touching is not required in order to commit assault. So long as the victim reasonably fears the harmful and/or offensive conduct will occur, that is enough to constitute an assault.

Although the exact elements of assault vary by jurisdiction, the degrees of assault are generally as follows:

  • 1st Degree Assault: Intentionally inflicting fear of serious bodily harm, or intentional infliction of fear of injury caused by a deadly weapon;
  • 2nd Degree Assault: Knowingly inflicting fear of serious bodily injury, or knowingly inflicting a fear of injuries with a deadly weapon;
  • 3rd Degree Assault: Reckless infliction of fear of serious bodily injury, or recklessly causing a fear of injury through the use of a deadly weapon.

Assault in the third degree is typically the least serious form of assault in most jurisdictions. Of the three categories of assault, 3rd degree requires the least amount of intentional conduct. A conviction of third degree assault means the defendant will receive the least punishment for an assault charge.

1st and 2nd degree assault usually involves a more intentional, deliberate act and, therefore, results in more serious criminal penalties than 3rd degree assault. According to criminal laws, acts that are intentional are punished more severely than acts that are negligent or reckless.

It is important to note that the exact definition of assault and its subcategories may vary across states. Additionally, some states may not make the same differentiations between categories.

What are the Criminal Penalties for Third Degree Assault?

In many jurisdictions, 3rd degree assault is a Class A misdemeanor. A Class A misdemeanor is the most serious type of misdemeanor, with Classes B, C, and D being less serious offenses. Some jurisdictions use a numbering system, such as Class 1, 2, 3, etc. Class A and/or Class 1 misdemeanors are usually slightly less serious than felony offenses.

A Class A misdemeanor is generally punishable by a maximum of one year in jail and a fine up to $1,000. 1st and 2nd degree assault, however, is usually a felony and results in more serious consequences.

However, as noted above, state laws will vary regarding the sentence for third degree assault. For example, some states automatically process 3rd degree assault as a felony.

Felony assault charges may result in more strict criminal penalties, such as prison sentences of over a year and heftier fines. Additionally, a felony conviction is more difficult to have expunged, or removed, from an individual’s criminal record.

What are “Wobbler” Crimes?

In some jurisdictions, 3rd degree assault is considered a wobbler offense. A wobbler offense is a crime that can be charged as a misdemeanor or a felony, depending on the circumstances of the case.

Generally, the prosecutor determines whether to charge the defendant with a felony or misdemeanor. In some cases, 3rd degree assault is a felony and may result in criminal consequences that are more comparable to those of a felony rather than those of a misdemeanor.

There are some factors that may cause a 3rd degree assault charge to result in felony punishment. These include:

  • Repeat assault offenses, which may result in serious consequences, such as becoming a repeat offenders and/or a habitual offender and being subject to three strikes laws;
  • The greater the degree of bodily harm intended and/or inflicted on the victim, the greater the penalties;
  • The type of weapon that used in the commission of the assault;
    • Generally, the more dangerous the weapon and/or an illegal weapon, the greater the criminal penalties;
  • The characteristics of the victim, including whether the assault was on a police officer, domestic partner, and/or a minor.

On the other hand, criminal assault charges may be reduced to a lesser charge, such as 4th degree assault, depending on the facts of the case. Wobbler laws do not exist in all states. It is important to note that, in some cases, defendants convicted of a wobbler felony may petition to have it reduced to a misdemeanor.

Can I Raise Any Legal Defenses if I’ve Been Charged with Third Degree Assault?

Depending on the circumstances of the case, a defendant may be able to raise a criminal defense in court if they are charged with 3rd degree assault. What defenses are available will depend on the state laws and the facts of each specific case.

Commonly raised defenses to 3rd degree assault can include:

  • Lack of evidence to prove each element of the offense;
  • Self-defense; and/or
  • Intoxication.

A lack of evidence may serve as a defense if the prosecution cannot prove an element of the offense because the lack evidence. For example, recklessness is an element the prosecution must prove for a charge of 3rd degree assault. If the prosecution cannot show the defendant was reckless in their conduct, that can be a defense. Another example may be if the defendant did not use a deadly weapon.

Self-defense is a defense that is commonly raised to assault charges. In order to claim self-defense, the defendant cannot be the party who instigated the violent conduct. The defendant must also have only used and/or presented an amount of force that is proportionate to that being used against them.

In some cases, intoxication may be a defense if the defendant was intoxicated at the time of the assault. This is especially important if the intoxication interfered with their ability to act intentionally. This defense is also strengthened if the individual was intoxicated involuntarily, for example, if someone spiked their drink.

There are other defenses that can be raised, depending on the facts of the case. Some defenses may not serve to fully excuse the defendant’s behavior, but it may help to obtain a lesser charge and/or a lighter sentence.

Should I Hire a Lawyer for Help with Third Degree Assault Charges?

Yes, if you are facing assault charges, it is important to seek the advice of a criminal lawyer as soon as possible. Assault charges can lead to serious legal consequences. The elements of assault also vary from state to state. A lawyer can review your case, provide you with advice regarding the charges and/or defenses available, and represent you during any court proceedings.

If the assault charges are brought as a felony, there may be life-long consequences, so it is important to have a lawyer on your side. There are many potential consequences to a felony conviction, including:

  • Loss of the right to vote;
  • Termination of a professional license;
  • Prohibition from obtaining a professional license; and/or
  • Prohibition on purchasing and/or owning firearms.

For these reasons, it is essential to have an experienced criminal lawyer helping you with your case.