Do You Have to Touch Someone to be Charged with Assault?

Posted on by New Mexico Criminal Law Offices

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When you hear the word “assault,” you assume a physical altercation conducted by one person to another.

While it is true an assault involves a person deliberately causing injury to another person, that is assault and battery – not simple assault. You do not have to physically strike a person for an assault charge. Instead, assault is a criminal act involving violence. How that violence occurs and the victim’s reaction play a heavy role in determining what criminal charges you face.

The Types of Assault Albuquerque Courts See

Assault of any kind is considered a violent act by one person toward another. However, there are divisions that take place in this category:

Simple Assault – No Contact Required

In New Mexico, you do not have to strike a person to be charged with assault. Instead, assault is defined in the statute as an attempt to physically strike a person or the use of threats, words, and actions that make the victim fear for their safety.

Simple assault is one that has no physical strike, but the threat of a strike. You might face simple assault charges for:

  • Using words, threats, or actions that make a victim fear impending violence.
  • Attempting to attack or hit someone, but not actually strike them.
  • Using words that insult a person’s character.

The Victim’s Fear

The victim must fear violence for simple assault to apply. That means the victim’s response must be genuine and reasonable. If a person’s fear is not reasonable, the courts would not convict for assault. To test what is “reasonable,” the court would compare the fear of the victim to how another person would react in a similar situation.

If the victim’s response does not meet what a normal person would do in the same situation, assault might not apply.

Aggravated Assault – No Contact Required

Aggravated assault is often confused as battery, but they are not the same. Again, aggravated assault does not require physical contact. Instead, the statute defines aggravated assault as a threat of physical violence while using a deadly weapon or engaging in another act, such as:

  • Threatening or Attempting to harm with a Deadly Weapon: Simple assault includes threats and attempts, but it is increased to aggravated assault if you do those threats or attempt to hurt someone with a deadly weapon.
  • Concealing Identity: If you threaten or attempt to harm someone while concealing your identity, you are charged with aggravated assault instead of simple assault. Concealing your identity includes everything from wearing a mask, hood, or another type of disguise. If a person cannot identify you because of what you are wearing, you may face aggravated assault. No weapon is required for aggravated assault under this circumstance.
  • Intent to Commit a Felony: Another reason for aggravated assault would be the threat or attempt to physically harm someone during the intent of committing another felonious crime. For example, you are stealing from a store. The manager catches you, and you point a gun at him. While you do not shoot the manager or strike the manager, your threat with that weapon while committing another crime moves you out of simple assault and into an aggravated assault.

The Penalties for Assault Are Still Harsh

You might assume that if you do not hit the person, the assault penalty cannot be harsh. In reality, assault charges can devastate your future and include up to six months in jail, a fine of up to $500, and possibly place you on probation for six months for simple assault.

For aggravated assault, you are now facing a fourth-degree felony. This includes up to 18 months imprisonment, a fine of up to $5,000, probation for up to five years, parole possibly for one year, and restitution to the victim (if losses occurred).

When Assault Occurs against a Protected Victim

These assault statutes have enhanced penalties for assault against protected victims. Protected victims are school workers, sports officials, and healthcare workers. If assaulted while performing their job duties, you face increased penalties and you might be charged with a third-degree felony.

Third-degree felonies include up to nine years imprisonment (or 15 years if death results), and up to $12,500 in fines.

Striking a Victim Constitutes Battery – Not Assault

If you were to hit the victim physically, then you are charged with battery; not assault. Battery is the unlawful or intentional force or touching by one person to another in an angry, rude, or insolent manner. Realize that battery is not hitting someone with a bat or even punching them with your fist. You could face battery even if you shove a person during a heated argument.

Also, touching someone in a suggestively aggressive manner constitutes battery.

The Intentional Conduct Rule

For both assault and battery, you must intend to harm the victim. The threatening act or the act itself must be intentional. If you harm someone accidentally, it is not assault or battery. Furthermore, if you are joking – and it is obvious you are joking – you cannot be charged with assault.

For example, you and friends are joking around, and you state “I’ll hit you.” You did not intend for someone to fear you or feel their safety was at risk. Instead, you were joking.

Do not think that you can defend yourself by simply saying you were joking or it was not intentional. Intent is difficult to prove but equally difficult to defend.

Arrested for Assault? You Need an Attorney

If you have been arrested for simple or aggravated assault, contact a criminal defense attorney immediately. A conviction of any kind, whether misdemeanor or felony, can have a serious impact on the rest of your life.

Speak with a criminal defense attorney from New Mexico Criminal Law Offices today at 505-375-4671, or request more information online.