The Elements of ‘Attempt’ and the Possible Penalties


While it is widely known that a person can be charged for committing a crime, most people do not know that they can be charged for simply attempting to commit a crime. In cases where an individual is charged for attempting to commit a crime, the conviction isn’t always black and white. Much more must be proven than in a case where a crime was committed, and certain aspects must be true for a person to be charged with attempt.

What is attempt?

In the state of Nebraska, a person can be charged with attempt of a crime where they if:

1. They consciously acted in a way that would be a crime if the actions went as the person planned


2. They consciously acted in a way that is a clear step towards a person’s commission of the crime.

Attempt generally occurs when the crime has not fully taken place, but it is not a requirement for that to be true.

Intent is a crucial element of an attempt charge. It must be proven that the defendant took steps towards committing the crime, not only planning it, for it to be considered true intent. In certain instances, however, if there was a detailed plan that an individual attempted to act upon, then it could suffice as evidence for intent. For an individual to be charged with attempt, there must have been forethought (intent). Generally speaking, a crime that requires no planning but is attempted cannot be charged as attempt. For example, manslaughter does not require planning but rather is committed during a heat of the moment reaction; therefore, a person is typically not charged with attempted manslaughter, especially at the beginning of a criminal case, because there was no true intent to begin with. It by no means states a person cannot be charged with manslaughter, but they simply cannot be charged with attempt.

A charge for attempt can occur when the defendant was stopped or blocked from committing the crime. If a person had obtained a weapon to be used in a murder or robbery, but then decided not to go through with it, they can still be charged with attempt. The same goes for if a person leaves a place of intended murder because of an alarm or police officer.

To truly commit that crime of attempt the defendant must have thoroughly thought out the crime, made the conscious decision to do so, took steps to commit the crime, and attempted to commit the crime either successfully or unsuccessfully.

Even though there are many nuances surrounding the commission of the crime of attempt, an experienced criminal defense attorney can often convince the State to reduce a charge by adding the element of attempt to it. Doing this often greatly reduces the penalties and can even reduce a felony crime to a misdemeanor, as discussed below.

What are the penalties for attempt?

Conviction of attempt can result in a severe punishment. The punishments for intent vary based on how severe the attempted crime was. The penalties are classified as follows:

  • Class II felony when the attempted crime was a Class I, Class IA, or Class IB felony
  • Class III felony when the attempted crime was a Class II felony
  • Class IIIA felony when the attempted crime was one of the following:
    • First-degree assault
    • Second-degree sexual assault
    • Controlled substance manufacturing, distributing, delivering, dispensing, or possessing with intent to manufacture, distribute, deliver, or dispense
    • Incest
    • Child Abuse
    • Second-degree assault of an officer
    • A confined person committing assault with a dangerous or deadly weapon
  • Class IV felony when the attempted crime was a Class III felony not listed above
  • Class I misdemeanor when the attempted crime was a Class IIIA felony or IIA felony
  • Class II misdemeanor when the attempted crime was a Class I misdemeanor
  • Class III misdemeanor when the attempted crime was a Class III misdemeanor

Berry Law’s Criminal Attorneys

Each attempt charge brings its own life-changing effects, even if it is only a misdemeanor. The ‘legalese’ of an attempt case can often be confusing, considering the underlying crime itself was never fully committed. When facing an attempt charge, or when inquiring about reducing a criminal charge by adding the element of attempt, it is in your best interest to consult an experienced defense attorney. Berry Law’s dedicated criminal defense attorneys can assist you in navigating the courts and obtaining the best possible outcome for your attempt charge, or by adding an attempt charge to reduce a felony to a misdemeanor or reduce the penalties that a charge carries. Contact us today to schedule a consultation with a criminal defense attorney.

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