Aggravated Assault Defense

Ryan is no stranger to handling aggravated assault cases, including experience in LaGrange, Newnan, and Carrollton. Aggravated Assault is considered a violent crime, and punishment could be up to twenty years in prison for each charge. Remember, at J. Ryan Brown Law we don't want anyone to fight alone.

What Does the Law Say?

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Aggravated Assault is defined in O.C.G.A. § 16-5-21. So, if you are charged with aggravated assault you have been charged with violating O.C.G.A. § 16-5-21. There are four basic ways to be charged with aggravated assault. Here is the law:

(a) A person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;

(3) With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or

(4) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

(b) Except as provided in subsections (c) through (k) of this Code section, a person convicted of the offense of aggravated assault shall be punished by imprisonment for not less than one nor more than 20 years. (c) (1) A person who knowingly commits the offense of aggravated assault upon a public safety officer while he or she is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished as follows:

(A) When such assault occurs by the discharge of a firearm by a person who is at least 17 years of age, such person shall be punished by imprisonment for not less than ten nor more than 20 years and shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum;

(B) When such assault does not involve the discharge of a firearm by a person who is at least 17 years of age, and does not involve only the use of the person's body, such person shall be punished by imprisonment for not less than five nor more than 20 years and, for persons who are at least 17 years of age, shall be sentenced to a mandatory minimum term of imprisonment of three years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum; or

(C) When such assault occurs only involving the use of the person's body, by imprisonment for not less than five nor more than 20 years.

(2) A person convicted under this subsection shall be punished, in addition to any term of imprisonment imposed, by a fine as provided by law which shall be at least $2,000.00. With respect to $2,000.00 of the fine imposed, after distributing the surcharges and deductions required by Chapter 21 of Title 15, Code Sections 36-15-9 and 42-8-34, and Title 47, it shall be earmarked for the Georgia State Indemnification Fund for purposes of payment of indemnification for death or disability as provided for in Part 1 of Article 5 of Chapter 9 of Title 45.

(3) As used in this subsection, the term "firearm" means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.

(d) Any person who commits the offense of aggravated assault against a person who is 65 years of age or older shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than 20 years.

(e) Any person who commits the offense of aggravated assault in a public transit vehicle or station shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than 20 years.

(f) Any person who commits the offense of aggravated assault upon a person in the course of violating Code Section 16-8-2 where the property that was the subject of the theft was a vehicle engaged in commercial transportation of cargo or any appurtenance thereto, including without limitation any such trailer, semitrailer, container, or other associated equipment, or the cargo being transported therein or thereon, shall upon conviction be punished by imprisonment for not less than five nor more than 20 years, a fine not less than $50,000.00 nor more than $200,000.00, or both such fine and imprisonment. For purposes of this subsection, the term "vehicle" includes without limitation any railcar.

(g) Except as provided in subsection (c) of this Code section, a person convicted of an offense described in paragraph (4) of subsection (a) of this Code section shall be punished by imprisonment for not less than five nor more than 20 years.

(h) Any person who commits the offense of aggravated assault involving the use of a firearm upon a student or teacher or other school personnel within a school safety zone as defined in Code Section 16-11-127.1 shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years.

(i) If the offense of aggravated assault is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household, the defendant shall be punished by imprisonment for not less than three nor more than 20 years.

(j) Any person who commits the offense of aggravated assault with intent to rape against a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years. Any person convicted under this subsection shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.

(k) A person who knowingly commits the offense of aggravated assault upon an officer of the court while such officer is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years. 

What Does All of that Mean?

 As you can tell, there a quite a few ways someone can commit aggravate assault. Before we talk about what an aggravated assault is we should first outline what is called simple assault. A simple assault occurs in one of two ways. The first way is if someone attempts to commit a violent injury to someone else. The second way is if you do something that makes another personal reasonably scared of receiving an immediate violent injury.

So, how does a simple assault (a misdemeanor) become an aggravated assault – a felony. There are quite a few ways:

Aggravated Assault With Intent to Murder, Rape, or Rob - O.C.G.A. § 16-5-21(a)(1)

What is It?

The first way to commit an aggravated assault is found at O.C.G.A. § 16-5-21(a)(1). Under this code provision if you commit an assault with the intent to murder, rape, or rob the victim then you have committed an aggravated assault.

First, remember that being charged with a crime is just an accusation and that you are innocent until you are proven guilty.

If you are charged under this code section that means the State of Georgia has accused you of either attempting to commit a violent injury to someone else, or behaving in such a way that you made someone else scared that they were about to receive a violent injury and the prosecutors think that you did this while planning to rape, murder, rob that person. 

How About an Example?

Example 1: Aggravated Assault with the Intent to Murder

There is one classic example of an aggravated assault with the intent to murder. Prosecutors like to use this charge when they believe that the defendant was trying to kill someone, but was unsuccessful. 

For example, two individuals are involved in an altercation. During that altercation, the defendant pulls a firearm on the other person. The defendant, after pulling the firearm, shoots the gun and hits the other person. The person who was shot makes a full recovery and suffers not long-term injuries. This is a great example of aggravated assault with the intent to murder. 

Next, lets say two men are in a bar drinking late at night. While drinking the two begin to fight - one of the men pulls a pocketknife and stabs the other man. Let's say the man who was stabbed makes a full recovery. This is yet another example of aggravated assault with the intent to murder. 

Example 2: Aggravated Assault with the Intent to Rape

Another thing the District Attorney can charge you with under O.C.G.A. § 16-5-21(a)(1) is aggravated assault with the intent to rape. This charge would often accompany a rape charge that alleged some form of a violent rape. 

An allegation under this code provision would be similar to those above, however, there is one large difference. In the above example, the defendant was acting with the intent to murder. To be convicted of aggravated assault with the intent to rape the district attorney has to prove that 1) you committed an aggravated assault, and 2) that while committing the aggravated assault you planned to rape the victim of the crime. 

For example, if someone is alleged to hold a victim at gunpoint and then proceeds to commit a rape. That person would likely be charged with, not only rape, but also aggravated assault with the intent to rape. 

Special Provision when Alleged Victim is a Child under the Age of 14

Any person who commits the offense of aggravated assault with intent to rape against a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years. Any person convicted under this subsection shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2. 

Example 3: Aggravated Assault with the Intent to Rob

Finally, under O.C.G.A. § 16-5-21(a)(1) someone can be charged with aggravated assault with the intent to rob. 

To be convicted of this the district attorney must move that you committed an aggravated assault, and that you did so while planning to rob the victim. 

For example, if someone is accused of holding someone at knifepoint, or gunpoint, and then attempts to rob, or robs, that victim they may be charged with aggravated assault with the intent to rob. In addition to this charge, the district attorney would likely also charge the defendant with armed robbery. Of if the robbery was unsuccessful, an attempted armed robbery. 

Any of these charges can result is serious consequences. These consequences could be up to decades in prison. It is critical that you prepare a defense to these charges, that you be prepared to fight these charges, and that your rights are protected. 

Aggravated Assault with a Deadly Weapon or With any Object, Device, or Instrument Which, When Used Offensively is Likely to, or Does Cause Serious Bodily Injury - O.C.G.A. § 16-5-21(a)(2)

Just to recap from earlier, an aggravated assault can be committed in two ways. The first way is if someone attempts to commit a violent injury to someone else. The second way is if you do something that makes another personal reasonably scared of receiving an immediate violent injury.

To be convicted of this crime the district attorney must prove that you committed the aggravated assault, and that you did so with a deadly weapon, or with something that likely will or does cause serious injury. 

Georgia courts have determined that something are just naturally deadly weapons, other items, can be presented to the jury as a deadly weapon. At that point, it is up to the jury to decide whether or not the "instrument" is a deadly weapon. The following list is an example of just some of the things courts or juries have found to be a deadly weapon or instrument that can cause serious bodily injury:

  • Firearms
  • Pellet gun in shape of automatic rifle
  • Toy gun (in certain circumstances)
  • Knives
  • Axes
  • Hatchets
  • Kitchen Knife
  • Dogs
  • Hammer
  • Defendant's hands
  • Defendant's feet
  • Motor Vehicle

By no means is this a complete list of things that a prosecutor could allege as a deadly weapon. Anything used in the wrong way could be presented to the jury as a deadly weapon.

For example, if someone is accused of striking someone repeatedly with a household object - perhaps a lamp or a broomstick, then the District Attorney would likely present that case as aggravated assault with a deadly weapon. 

Aggravated Assault with Something, Which When Used Offensively, May Result in Strangulation - O.C.G.A. § 16-5-2(a)(3) 

O.C.G.A. § 16-5-2(a)(3) is the code section used by prosecutors when there is a strangulation. In general, anytime that someone is accused of choking, or strangling, someone, then prosecutors use this aggravated assault code section to prosecute them. 

For Example, this code section is generally used to prosecute someone if they are accused of using their hands to choke someone. 

Next, prosecutors use this code section if something like a rope, or string, or anything of those sorts are used intending to strangle the victim.

Any allegation that you violated this law and that you have been charged with aggravated assault - strangulation is a serious allegation. In this scenario you can expect the best effort from the district attorney's office. Regardless of whether is an alleged domestic incident or something else, it is important you prepare from the beginning to fight these charges.

Aggravated Assault - Drive-by Shooting- O.C.G.A. § 16-5-21(a)(4) 

The final of the four basic ways to be charged with aggravated assault is under O.C.G.A. § 16-5-21(a)(4). This statute states that: A person commits the offense of aggravated assault when he or she assaults A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

What does that mean?

This code section is fairly narrow and it criminalizes a drive-by shooting. This is a rare situation where a statute basically prohibits one exact form of conduct. 

Therefore, if charged under this code section, you can expect to defend against a drive-by shooting charge. Meaning that the state is going to have to prove you guilty beyond a reasonable doubt. That is why it is so critical to prepare your defense from the beginning.  

How Much Time Can I Get for Aggravated Assault?

This is the question that I get more than any others. The thing that folks want to the most, and usually ask first, is how much time they could possible get on their charges. 

Long story short for the four types of aggravated assault listed above is that you could receive a maximum of twenty years in prison for an aggravated assault. By no means does that mean you will receive twenty years. This time can be suspended, meaning you wouldn't have to serve it in prison, or it could be probated where, once again, you would not have to spend that time in prison. 

So, the minimum punishment would be one year of probation or one year suspended upon the completion of some condition imposed by the sentencing court. Whereas the maximum would be twenty years in prison, therefore, the range of punishment is said to be "one to twenty."

Is There Any Chance that the Sentence Could be Different?

Yes. That's the short answer. This is, however, only under certain circumstances. One common scenario where the range of punishment differs is when the alleged victim of the aggravated assault is a law enforcement officer.When this is the case there are several scenarios that could change the range of punishment. 

A Person 17 or Older Shoots at a Law Enforcement Officer

What does the Law Say?

O.C.G.A. § 16-5-21(c)(1)(a) states that when such assault occurs by the discharge of a firearm by a person who is at least 17 years of age, such person shall be punished by imprisonment for not less than ten nor more than 20 years and shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum

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sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum. 

What does that Mean?

In this scenario the maximum punishment remains at twenty years in prison. There are, however, some differences in the range of punishment. Most importantly, the minimum punishment increases from one year all the way to ten years!

But, that is not the biggest change. A more important difference for those accused of shooting at a law enforcement officer is that the minimum sentence (10 years) cannot be probated, stayed, suspended, deferred, or anything like that. In other words, the ten year minimum must be served in prison. 

The only way around this deviation is if the district attorney agrees to a sentence below ten years and the judge agrees to the deviation from the minimum sentence as well. Because this deviation requires the consent of the defendant, the prosecutor, and the court must approve it, you must get started defending your case.

Someone 17 or over Commits an Aggravated Assault on an Officer and that Assault Involves a Weapon, but not Shots Fired

What does the Law Say?

O.C.G.A. § 16-5-21(c)(1)(b) states that when such assault does not involve the discharge of a firearm by a person who is at least 17 years of age, and does not involve only the use of the person's body, such person shall be punished by imprisonment for not less than five nor more than 20 years and, for persons who are at least 17 years of age, shall be sentenced to a mandatory minimum term of imprisonment of three years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court; provided, however, that in the court's discretion, the court may depart from such mandatory minimum sentence when the prosecuting attorney and defendant have agreed to a sentence that is below such mandatory minimum.

What does this Mean?

This part of the law sounds tricky, but its not as complicated as it sounds. Basically, this provision of the law deals with a situation where someone is accused of committing an aggravated assault on a law enforcement officer with some dangerous instrument or weapon, but not by firing a shot. 

In this scenario the sentencing range is five to twenty - meaning the minimum punishment is five years and the maximum is twenty. The important part, however, is that three years of that sentence must be served in prison (the rest can still be suspended or probated). The court may still deviate from that minimum when the prosecutor consents to such a deviation. 

When Someone Commits an Aggravated Assault on a Law Enforcement Officer Using Only their Hands and Feet 

This is a scenario where someone commits an aggravated assault by striking or choking a law enforcement officer. Durng this assault, if the offender uses only his hands and feet this code section would apply. 

If convicted under this code section then a person faces a minimum punishment of five years and a maximum twenty years. 

Other Provisions

There are several other miscellaneous provisions that fall under the aggravated assault code section. Those provisions and the penalties associated with them are below. The special part of the code section is is italics and the sentencing information is underlined. 

  • O.C.G.A. § 16-5-21(d) Any person who commits the offense of aggravated assault against a person who is 65 years of age or older shall, upon conviction thereof, be punished by imprisonment for not less than three nor more than 20 years. 
  • O.C. G. A. § 16-5-21(h) Any person who commits the offense of aggravated assault involving the use of a firearm upon a student or teacher or other school personnel within a school safety zone as defined in Code Section 16-11-127.1 shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years
  • O.C.G.A. § 16-5-21(i) If the offense of aggravated assault is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household, the defendant shall be punished by imprisonment for not less than three nor more than 20 years
    • This is what is often referred to as Aggravated Assault - Family Violence. 
  • (k) A person who knowingly commits the offense of aggravated assault upon an officer of the court while such officer is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years

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Ryan Brown represents clients throughout the state. He primarily serves the following counties: Coweta, Carroll, Heard, Meriwether, Troup, Douglas, Haralson, Cobb, Paulding, Floyd, Fayette, Henry, Macon-Bibb, Fulton, Muscogee, Monroe, Polk, Spalding, Pike, Lamar, Upson, Butts, Walton, Newton, and Rockdale.

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