In Lincoln and throughout Nebraska, first-degree assault and second-degree assault charges differ in terms of the severity of the offense and the potential penalties. First-degree assault, a Class II felony, involves intentionally causing serious bodily injury to another person, usually with a deadly weapon, or in a manner likely to cause death. On the other hand, second-degree assault, a Class IIIA felony, involves intentionally causing bodily injury to another with a dangerous instrument or recklessly causing serious bodily injury to another person with a dangerous instrument.
The key difference is that second-degree assault causes less severe injuries to the alleged victim than first-degree assault.
What Are Some Examples of ‘Dangerous Instruments’ in Assault Cases?
A “dangerous instrument” is any object or item that can cause death or bodily injury. Firearms, knives, baseball bats, and crowbars are some examples of dangerous instruments. The instrument does, however, not need to be specifically designed to harm the other person. Instead, the jury or court will examine its use, even if it is not naturally considered dangerous.
So even everyday objects like pencils, a baseball bat, or forks may pass as dangerous instruments if used in a way that is likely to cause severe injury or death.
Can I Be Charged with Assault if a Dangerous Instrument Was Not Involved?
Assault is a crime involving intentionally or recklessly causing bodily injury to another person or threatening injury to another person. While it is common knowledge that using a dangerous instrument can certainly result in more severe charges and penalties, it is not a requirement for an assault charge.
For example, suppose you punched someone in the face and caused a black eye. In that case, you could be charged with assault even though no dangerous instrument was involved. Similarly, if you threatened someone with physical harm, even if you did not have a weapon, you could still be charged with assault if the person felt afraid and believed you could carry out the threat.
What Is the Penalty for First-Degree Assault in Lincoln?
In Nebraska, first-degree assault is a serious felony offense with a minimum sentence of one year and a maximum sentence of 50 years in prison. The judge, however, will consider the unique circumstances of the case, such as the severity of the victim’s injuries, the involvement of a weapon, and the defendant’s prior criminal record.
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What Is the Penalty for Second-Degree Assault in Lincoln?
Individuals convicted of second-degree assault as a Class IIA felony may face up to 20 years in prison. Like first-degree assault, the specific penalties for second-degree assault will depend on the circumstances of the case.
What Are Some Possible Defenses to an Assault Charge?
Some common defenses against assault charges include the following:
- The defendant acted in self-defense. In Lincoln and all over Nebraska, self-defense is a legal justification for using proportional force when a person reasonably believes they are in danger of harm. However, Nebraska does not have a stand-your-ground law, meaning you have a duty to retreat before resorting to deadly force.
- The defendant did not intend to cause harm to the victim. For instance, say you accidentally bumped into the victim and caused them to fall. In that case, this may not be considered an intentional assault.
- The alleged victim consented to the defendant’s actions. A boxing match is an excellent example of such a scenario. You may avoid a conviction if you prove the victim consented to physical contact.
Note that the specific defenses that may apply in an assault case will depend on the unique facts of the case. For this reason, some or even all of the defenses used above may not apply to your case. That’s why it’s important to contact an experienced criminal defense attorney right away.
How a Criminal Defense Lawyer Can Help if You Have Been Charged With First or Second Degree Assault
Here’s an overview of different ways a criminal defense lawyer can help if you have been accused of assault in Lincoln.
Examining the Officer’s Conduct
Your lawyer can examine the conduct of the officers involved in your case to determine whether any of their actions violated your constitutional rights. For example, if the officers obtained evidence against you through an illegal search or seizure, your lawyer may be able to have that particular evidence suppressed and excluded from your trial.
Investigating the Charges Against You
A criminal defense attorney will also thoroughly investigate the charges against you. The results of this investigation may uncover weaknesses in the prosecution’s case against you and help your lawyer build a strong defense.
Developing a Theory of Defense
Based on the evidence gathered during the investigation, your lawyer can develop a theory of defense tailored to the specific circumstances of your case. For example, your lawyer may present an alternative explanation for the events leading up to the alleged assault.
Representing You at Trial
Suppose your case goes to trial; your lawyer can represent you in court and present your defense to a judge or jury. They will challenge the prosecution’s evidence and arguments and cross-examine witnesses to poke holes in their testimony.
Negotiating a Plea Deal
Sometimes, a trial is not in your best interests. If so, your criminal defense lawyer can negotiate a plea deal with the prosecution, resulting in reduced charges or a more lenient sentence. They will work with the prosecutor to identify options for resolving your case in a way that protects your rights.
How Berry Law Criminal Defense Attorneys Can Help
Since 1965, Berry Law has been fighting for the rights of individuals whose lives are at risk after allegations of assault. Given the severe penalties of an assault conviction, it is of utmost importance to contact an attorney as soon as possible. Our team at Berry Law is committed to being the defenders of those unfairly judged.
If you or your loved one has been charged with assault in Lincoln, Nebraska, our award-winning criminal defense attorneys can help tell your side of the story and protect your rights. You can contact us online, call us any day and any time at 402-961-3271, or visit our Lincoln Office for a consultation with one of our attorneys.