Arrested for Aggravated Assault in Georgia?
Answers to Your Questions
In my experience, Aggravated Assault in one of the most over-charged felony crimes in Cobb County, and maybe in Georgia overall. People are shocked when they are charged with such a serious crime, when the actions that caused the arrest do not seem so serious. It can be very scary to be facing an Aggravated Assault charge. Hopefully, I can answer some of your questions below.
What is the punishment for Aggravated Assault in Georgia?
In most cases, the range of punishment is 1 to 20 years. That means a judge can sentence you to prison, to probation, or a combination of both, for between1 year and 20 years total. Aggravated Assault is a parole-eligible offense, but it is usually considered a Level VIII in severity, which means you'll likely serve 65-90% of any custody portion of a sentence. For Aggravated Assaults that involve specific circumstances like drive-by shootings, or involve police officers, or involve the elderly or a family member, or are part of a commission of other certain crimes, the punishment range is more severe.
What kinds of actions result in an Aggravated Assault charge?
A Simple Assault (which is a misdemeanor) is when you attempt to commit an act that could cause a violent injury or you commit an act that places someone in reasonable fear of immediately receiving a violent injury. That Simple Assault rises to become a felony Aggravated Assault when you assault someone 1) with intent to murder, rape or rob, or 2) use a deadly weapon or any object which when used offensively could result in serious bodily injury, or 3) use an object or instrument (including hands) that results or is likely to result in strangulation, or 4) is part of a drive-by shooting.
As you can see, there are all kinds of different actions that can be considered Aggravated Assault, even if no one was ever actually injured. The language of the law means that almost anything can be considered a weapon, so if you threaten someone with it and they are in reasonable fear, it can be called an Aggravated Assault.
What things are considered weapons for an Aggravated Assault charge?
Weapons are usually knives and guns. But the law says any object that can cause serious bodily injury can be considered to be the same as a "weapon" for the purposes of Aggravated Assault. That includes hands and feet, as well as things like brass knuckles, a car, and even a stick. This is one reason that Aggravated Assault is charged so often in Georgia. So many different scenarios can be called an Aggravated Assault, even if no one was injured.
What does Aggravated Assault Strangulation mean?
I handle many of these Aggravated Assault Strangulation cases every year in Cobb County. Part of the Aggravated Assault law includes any circumstances where an object (including hands) are used in a way that "is likely to result in strangulation." This means you don't actually have to actually strangle anyone to be charged with Aggravated Assault Strangulation. The law says that any action that could result in strangulation is enough to be charged as Aggravated Assault. The most common scenario that I see in Cobb County is you and your partner get into a fight. You briefly grab your partner by the neck - either to stop them from doing something, or to get them to move away from you. Your partner has not been truly choked and has not lost consciousness. It only happens for a split second. However, when the police arrive because someone called them, they ask your partner what happened, and your partner tells them the story and mentioned "he grabbed me by my throat." The police then ask "Did you have trouble breathing?" If your partner says something like "Yes I had a little trouble breathing" (even for a just a moment), the police will charge you with Aggravated Assault Strangulation. It doesn't matter if the person was not truly strangled, it only matters to the police that what happened could have resulted in strangulation. The police are trained to ask these questions, and sometimes the police even lead these "victims" into saying things about the fight that aren't even true. And in the end, Aggravated Assault Strangulation is treated with the same charge and same potential punishment as Aggravated Assault with Intent to Murder. It can be shocking and scary to be charged with Aggravated Assault, especially when the fight was due to mutual bad behavior on both sides, and no one had any intention of hurting the other.
Can I claim self defense to Aggravated Assault?
It is possible to make a self-defense or "justification" argument when charged with Aggravated Assault. Self-defense arguments are tricky and you need to speak to a lawyer about the exact circumstances surrounding your arrest. You also want to be sure that your lawyer is familiar with these kinds of motions, because they are not actually that common. I successfully argued a self-defense motion in Cobb several years ago that resulted in double-murder charges being dropped. So, self-defense motions CAN be won even in the toughest of cases, but you need to be sure to talk it over thoroughly with your lawyer.
What if the victim wants to drop the charges?
On TV, you often see victims saying "I want the charges dropped" and then the case magically gets dismissed. It doesn't work like that in real life. Once the police are involved at the scene, the police decide whether or not to arrest someone. Once someone has been arrested, the prosecutors are the ones who decide whether to pursue a case, reduce a case, or drop a case. They will ask the victim for input, but the victim doesn't decide whether someone is arrested and the victim doesn't decide whether a case is dismissed.
Sometimes, a victim will tell me that they never told the police anything about any kind of aggravated assault. I usually tell them to wait until I get the discovery (the evidence) in the case. Most interactions with police at the scene are recorded by body camera, and I'll get a copy of that body camera video to review. Victims are surprised when I tell them they DID tell the police they were strangled/assaulted, and that their statement is on video. In the heat of the moment, emotional people say things they will later regret, and often don't even remember saying them. It is still helpful that the victim does not want to see the Defendant prosecuted. The victim can help get a case dismissed or come to some other good resolution. But you should always let your lawyer be the one to contact the victim about this.
What if the victim refuses to testify or says they will change their story?
It is not so easy to just say you won't testify. Prosecutors have the power to subpoena you to court. A subpoena is an order to appear in court on a particular day and time. If you don't appear, the judge can have you arrested, and hold you until it is time for you to testify. I recently heard of a judge in Cobb County holding someone for two weeks in jail for ignoring a subpoena. It is never a good idea to disregard a subpoena. You just end up getting in trouble, and you still have to testify.
Once a victim is called to the stand to testify, the prosecutor will likely have already gotten the police officers to testify about what the victim told them, and that is often backed up by video evidence of what the victim said. So if the victim decides to tell a different story in court or say the police are lying, the victim puts themselves in a bad position. If the victim says they made up the story about the assault, they can be charged with filing a false police report. If the victim lies on the stand about what happened when the video clearly shows them telling the police they were assaulted, it can be considered perjury and the victim can be charged with a felony. While it is rare that these things happen, it is important to keep them in mind.
If the victim doesn't want to see the accused prosecuted for Aggravated Assault, there are things they can do to help. I always reach out to the victims of my client's Aggravated Assault cases and try to work with them if they are willing to help. They can provide statements and affidavits that can go a long way to resolving the case in a very good way. But it is important to let the lawyers work with the victims as opposed to the accused being the one to push the victim to do something. We never want it to look like we are trying to intimidate a witness, which can cause additional problems.
Will you go to prison for Aggravated Assault?
While prison is always a possibility in any Aggravated Assault case, there are many other options besides prison. I handle many of these cases every single year. I have succeeded in getting some Aggravated Assault cases dismissed immediately, others dismissed through a diversion program, some reduced to misdemeanors, and others put on probation through first offender so they are not considered convicted felons and their records are restricted. Each case is unique, and each person's criminal record is different. If you have been arrested for Aggravated Assault, you should call a lawyer immediately. There are things you can start doing to help your case even before your first court date. If you have specific questions about your Aggravated Assault case in Cobb, I am happy to talk with you with a free consultation.
No matter what your criminal history may be, and no matter what the circumstances were surrounding your arrest, you should NEVER try to handle an Aggravated Assault case by yourself. Aggravated Assault is a very serious charge and you need someone who has experience and knows the local court system to help you.