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The term assault is categorized as the unwanted violation of a human being's personal space. Simple assault is any inappropriate violation of this personal space, even without the explicit intent to injure, and is usually deemed a misdemeanor. Felony assault is more drastic in nature and requires four elements to be deemed felony assault: ability, attempt, intent, and action. The umbrella of this charge can cover any number crimes and does not always involve a weapon. Depending on the state in which an individual resides, the definition and criteria for being charged with felony-level assault differs as well.
Generally, the first requirement is the apparent and present ability to carry out the act. What this means is that intent is present. The only exclusion to this rule is in the presence of a deadly weapon. If there is a deadly weapon used to do the deed, the act is still deemed a felony assault even if the injury to another person is unintentional.
The second requirement is an unlawful attempt to commit the act. This means that the perpetrator actually attempted to carry out the act. For example, if the perpetrator shot a gun at a person but missed, that is still considered a felony assault even though the intended harm is not done.
A third requirement is that the intent of the crime was to commit a violent injury. That means that the perpetrator carried out the crime with the explicit intent on causing bodily injury to another party. This plays a role even if the person was not harmed during the act since intent was present.
The fourth requirement is that the crime was carried out against another person — in other words, there has to be a victim. A crime cannot be deemed an assault in the absence of a perpetrator and a victim. The crime of assault also means that both the perpetrator and the victim are human. For example, a person cannot be accused of assault if his or her dog bites another person, even if he or she is negligent in not restraining the dog.
What remains the same in most states in regard to felony assault is that the act must be purposeful and deliberate. A person whose actions are reflexive or involuntary cannot be charged with a felony assault. For example, if a person is having a seizure and kicks another person during the seizure, he or she cannot be charged. The contact to the person who was kicked may have been harmful but the act was not willful.
Scenario: Driver A, with passenger, runs a red light and causes a collision with Driver B, also with a passenger. Driver A then attempts to switch positions with the passenger and flee the scene.
Passenger of Driver B’s vehicle gives foot chase and is confronted by Driver A. When Driver A makes an aggressive gesture, passenger of other vehicle produces a gun (legally owned and lisenced to carry).
Passenger of Driver B’s vehicle arrested/charged with felony firearm/felonious assault, two counts (for both Driver A and passenger).
Passenger of vehicle B claims “self-defense.” There is then a plea deal for attempted felonious assault.
Are these charges correct? Should they not be “brandishing” (misdemeanor) or “assault” (misdemeanor)?
State law gives a mandatory
sentence of two years (due to weapon being produced) if found guilty and additional time for other charges. Is this correct? Complainants were not struck with the weapon. They claim “fear of harm” but committed a felony by fleeing and the attempted assault on passenger of Vehicle B. Anyone?
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