Aggravated assault in Arizona pursuant to ARS 13-1204 is also known as felony assault. The way a misdemeanor assault becomes a felony aggravated assault when the assault is aggravated, or made worse, by some other factor. The most common factors that aggravate an assault are when the assaulter uses a weapon or causes serious physical injury to another person. While there are many ways to commit felony aggravated assault in Arizona, the crime is serious and requires a carefully crafted defense.
There are many ways that a person can be charged with aggravated assault in Arizona under ARS 13-1204. In essence, however, in order to be found guilty of aggravated assault the prosecution must prove simple assault plus an aggravator.
A. Simple Assault. A conviction for aggravated assault requires the prosecution to first prove the underlying simple assault (Simple Assault + Aggravator). This means that the prosecution must first prove that you:
B. Aggravator. The prosecution then must prove that the assault was aggravated by one of the factors listed in ARS 13-1204. These factors fall within four main categories:
Aggravated assault based on the use of a deadly weapon or dangerous instrument does not require that the victim be injured in any way. The use of a deadly weapon or dangerous weapon when committing an assault creates a risk that a victim will suffer serious physical injury or death. So, it alone is enough to raise a simple assault to an aggravated assault.
Aggravated assault with a deadly weapon or dangerous instrument is a Class 3 Dangerous Felony. But if the victim is an officer or a prosecutor, then it is classified as a more serious Class 2 Dangerous Felony. Also, if the victim is a child under the age of 15, then it is a Class 2 Felony and a Dangerous Crime Against Children. Read more under Penalties for Aggravated Assault.
The prosecution must prove that you committed an assault and that you used a deadly weapon or dangerous instrument.
A deadly weapon means anything designed for lethal use. .
Examples: A gun or knife.
A gun must be operable to be a deadly weapon. If the gun was permanently inoperable, then Arizona law does not consider it to be a deadly weapon. But this is not necessarily true if the gun is only temporarily inoperable. The Arizona Court of Appeals has found that if a gun is only temporarily inoperable, such as if a revolver is missing a pin, then the gun still qualifies as a deadly weapon.
If the gun used was permanently inoperable, then the prosecution can still charge you with aggravated assault based on using a simulated deadly weapon. Whereas you must be sentenced to prison if you used a deadly weapon, you are eligible for probation if the weapon is considered to be a simulated deadly weapon (for a first-time offense).
A dangerous instrument means anything that is readily capable of causing death or serious physical injury under the circumstances in which it is used. It refers to a wide range of objects that can inflict death or great bodily harm.
Examples: A hammer, bat, golf club, or car.
The intended use of these items is not to cause death or serious physical injury. But if a person swings a hammer, bat, or golf club at another person’s head, or uses their car to purposely hit another person, then the circumstances in which the instrument is used transforms it into a dangerous instrument.
A common type of aggravated assault charge is vehicular assault where a person drives a car while under the influence of alcohol or drugs and causes an accident that injures another person. Go to Vehicular Assault to learn more.
The law recognizes that the ultimate trauma to the victim is no different whether a person uses an actual deadly weapon or a simulated deadly weapon to commit an assault. A fake gun causes real fear of death or serious physical injury, even if the fake gun cannot actually cause death or serious physical injury.
Aggravated assault with a simulated deadly weapon is a Class 3 Felony.
The prosecution must prove that you committed an assault and that you used a simulated deadly weapon.
This is typically a fake gun or toy gun. A person’s hand can also be a simulated deadly weapon if they hold their hand under their clothes to give the appearance of a handgun. Another example of a simulated deadly weapon is a nasal inhaler used to simulate the barrel of a gun pressed to the victim’s body.
Sometimes, a person commits an assault using a real gun, but then tosses the gun afterward. If the police are unable to find the gun used, then the prosecution most likely will not be able to prove that the gun was operable to make it qualify as a deadly weapon. So, the prosecution must charge the crime as aggravated assault with a simulated deadly weapon.
A simple assault can be committed when a person causes any physical injury, even when the injury is minor, such as a small scrape or bruise. A simple assault is elevated to an aggravated assault when a serious physical injury is caused to reflect the seriousness of the harm.
Aggravated assault causing serious physical injury is a Class 3 Dangerous Felony. But if the victim is an officer or a prosecutor, then it is classified as a more serious Class 2 Dangerous Felony. Also, if the victim is a child under the age of 15, then it is a Class 2 Felony and a Dangerous Crime Against Children. Read more under Penalties for Aggravated Assault.
The prosecution must prove that you committed an assault and that you caused serious physical injury to another person.
Serious physical injury is a physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health, or loss or protracted impairment of the function of any bodily organ or limb.
Examples: Amputated body parts; paralysis; injuries requiring surgery or longer than normal healing time.
A simple assault can also be elevated to an aggravated assault when the force used caused a fracture or some other type of temporary but substantial injury. This type of injury is worse than a simple physical injury, but not as bad as a serious physical injury.
Because the injury does not rise to the level of a serious physical injury, this type of aggravated assault is classified as a Class 4 Felony. But if the victim is an officer or prosecutor, then it is classified as a Class 3 Felony.
The prosecution must prove that you committed an assault and that you caused:
This term is not defined by Arizona statute. So, whether temporary but substantial disfigurement was caused will depend on the facts of a case and will be up to a jury to decide.
Aggravated assault based on strangulation or suffocation and a domestic violence relationship is a Class 4 Felony and Domestic Violence Offense.
The prosecution must prove that you committed an assault and that you intentionally or knowingly impeded the normal breathing or circulation of blood of another person:
You have any of domestic violence relationship as listed in ARS 13-3601. This includes relationships such as:
You and the victim are married or were married;
You and the victim are roommates or were roommates;
You and the victim have a child together;
You or the victim are pregnant by each other;
The victim is your or your spouse’s parent, grandparent, child, grandchild, brother, or sister (by blood or adoption);
The victim is your stepparent, step-grandparent, stepchild, step-grandchild;
You and the victim are, currently, or were previously in a romantic or sexual relationship.
The law recognizes the sanctity of a person’s home. So, when you go into someone’s home to assault them, then the assault is elevated from a misdemeanor assault to a felony assault.
A simple assault becomes an aggravated assault when the assault is committed against certain people who the law considers as worthy of special protection. This includes vulnerable victims and victims who hold certain positions in society—such as an officer or a health care provider. A complete list of these victims can be found in ARS 13-1204. Some of the more common types of victims that will transform a misdemeanor assault into a felony assault are listed below.
The prosecution must prove that you committed an assault and that you knew or had reason to know that her person assaulted was a:
Generally, the prosecution must also prove that the victim was engaged in the execution of their official or professional duties. The exception is when the victim is a police officer. A police officer does not have to be engaged in their official duties to make an assault an aggravated assault.
Aggravated assault based on a victim’s status is a Class 6 Felony. The exception is when the victim is a police officer. When the victim is a police officer, then the aggravated assault is a Class 5 Felony. And when the victim is a police officer and any physical injury results, then the aggravated assault is bumped up to a Class 4 Felony. The seriousness of the felony is also bumped up when the victim is a prosecutor and any physical injury results. The aggravated assault goes from a Class 6 Felony to a Class 5 Felony. Any physical injury includes even a minor injury such as a small scrape or bruise.
The prosecution must prove that you committed an assault and that the person assaulted was:
Aggravated assault against a victim that the law considers helpless is a Class 6 Felony.
This includes when a victim is sleeping. It could also include an elderly victim whose ability to resist was substantially impaired by their age.
A dangerous offense is a crime that involved the use of a deadly weapon or dangerous instrument; or the intentional or knowing infliction of serious physical injury on another person. If the prosecution proves that the aggravated assault was a dangerous offense, then you cannot be placed on probation and the aggravated assault sentence must include prison. This means that even if you have no prior criminal history, you cannot be placed on probation and must be sentenced to prison.
A dangerous crime against children is any crime listed in A.R.S. § 13-705 that is committed against a child who is under 15 years of age. This includes aggravated assault with a deadly weapon or dangerous instrument and aggravated assault causing serious physical injury. If the prosecution proves that the aggravated assault was a dangerous crime against children, the you cannot be placed on probation and you must be sentenced to prison according to the dangerous crimes against children statute A.R.S. § 13-705.
As discussed above, if you and the victim have a domestic violence relationship as listed in A.R.S. § 13-3601 and you strangled or suffocated the victim, then the aggravated assault is classified as a Class 4 Felony and Domestic Violence Offense. But almost any of the other types of aggravated assault offenses can also be classified as a domestic violence offense if you have a domestic violence relationship. If you are convicted of aggravated assault as a domestic violence offense, then you will have to abide by special domestic violence terms of probation, if placed on probation. Additionally, you cannot have your gun rights restored.
If you have prior felony convictions and the prosecution is able to prove them, then you face even more prison time.
The types of aggravated assault offenses defined above that are Class 2 Felonies and Dangerous Crimes Against Children include assaults that are aggravated by the following factors:
If convicted, the judge starts by considering the presumptive term of 17 years in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to a minimum sentence of 10 years in prison and go up to a maximum sentence of 24 years in prison.
The types of aggravated assault offenses defined above that are Class 3 Dangerous Felonies include assaults that are aggravated by the following factors:
If convicted, the judge starts by considering the presumptive term of 7.5 years in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to a minimum sentence of 5 years in prison and go up to a maximum sentence of 15 years in prison.
The types of aggravated assault offenses defined above that are Class 3 Felonies include assaults that are aggravated by the following factors:
If convicted, the judge could place you on probation, with anywhere from 0 days in jail to 12 months in jail. The judge cold also sentence you to a prison term. If sentenced to prison, the judge starts by considering the presumptive term of 3.5 years in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to 2 years in prison and go up to 8.75 years in prison.
The types of aggravated assault offenses defined above that are Class 4 Felonies include assaults that are aggravated by the following factors:
If convicted, the judge could place you on probation, with anywhere from 0 days in jail to 12 months in jail. The judge cold also sentence you to a prison term. If sentenced to prison, the judge starts by considering the presumptive term of 2.5 years in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to 1 year in prison and go up to 3.75 years in prison.
The types of aggravated assault offenses defined above that are Class 5 Felonies include assaults that are aggravated by the following factors:
The judge could place you on probation, with anywhere from 0 days in jail to 12 months in jail. The judge cold also sentence you to a prison term. If sentenced to prison, the judge starts by considering the presumptive term of 1.5 years in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to 0.5 year in prison and go up to 2.5 years in prison.
The types of aggravated assault offenses defined above that are Class 6 Felonies include assaults that are aggravated by the following factors:
Victim is a firefighter, emergency medical technician, or paramedic
Victim is a teacher, school nurse, or school employee
Victim is a health care provider
Victim is a prosecutor (no injuries), public defender, or judicial officer
Victim is a child under 15 years of age (no serious physical injury and no deadly weapon or dangerous weapon used)
Victim is a person who was tied up or whose ability to resist was substantially impaired.
The judge could place you on probation, with anywhere from 0 days in jail to 12 months in jail. The judge cold also sentence you to a prison term. If sentenced to prison, the judge starts by considering the presumptive term of 1 year in prison. If there are any mitigating or aggravating circumstances, then the judge can go down to 0.33 year in prison and go up to 2 years in prison.
Regardless of the way in which you have been accused of aggravated assault, you are facing serious felony charges. With serious charges come serious risks of a conviction, imprisonment, job loss and other penalties. You owe it to yourself to ensure that you employ the most effective aggravated assault possible. However, finding the best aggravated assault lawyer is no simple task. You need to ensure that the attorney you choose has the requisite knowledge of the law and trial experience.
At Feldman & Royle, we are experienced aggravated assault lawyers who have represented hundreds of clients charged aggravated assault in both plea negotiations and trial. We offer a confidential and free consultation in order to address your questions and map out a defense to your case.
Assault is classified as a misdemeanor and aggravated assault is a felony. Aggravated assault is an assault that is aggravated (or made worse) by the circumstances of the assault, such as when a deadly weapon is used, or serious physical injury is caused.
Aggravated assault can range from the most serious classification of a Class 2 Felony to the least serious classification of a Class 6 Felony. The felony classification of aggravated assault depends on which factor aggravates the assault. For example, an assault committed using a deadly weapon is a Class 3 Dangerous Felony and an assault where the victim is a paramedic is a Class 6 Felony.
It depends on the type of aggravated assault you plead guilty to or are found guilty of by a jury and whether you have any prior felony convictions. It also depends on whether there are special allegations to the aggravated assault, such as it being a dangerous offense or a dangerous crime against children. These types of allegations mean that probation is not an option and the judge must sentence you to prison, even if you have not prior felony convictions.
DISCLAIMER: The material found on this website is intended solely for informational purposes. Nothing on this website is intended to constitute legal advice specific to any individual or case. No information provided, e-mail inquiry generated, or reply from our firm through this website establishes an attorney-client relationship
© 2023 Feldman Royle, Attorneys at Law
