Will I Go To Jail for an Assault?
Many people living in the state of Florida are confused about the difference between assault and battery. The police can charge assault when there is merely the threat of physical harm. That means that as a defendant, you can face assault charges even if you never struck the alleged victim or carried out your threat. If you have been charged with assault, you can be facing jail, fines, and a permanent criminal record. Contact an experienced criminal defense attorney in Florida to represent you. If you've been arrested in Broward or Palm Beach counties, Weinstein Legal can offer you professional representation at all stages of your case. Call today.
Assault Explained
Assault is defined under Florida State Statute 784.011. In order for an assault to have occurred, it must meet the following elements:
- There must be an unlawful threat by word or act to do violence.
- There must be an apparent ability to carry out the act.
- The threat must create a well-founded fear that violence is imminent.
It's important to note that the perpetrator does not have to articulate the threat verbally. A raised hand or a menacing step forward may be considered a threat. The victim must also be able to claim that they believe that violence is imminent. That means that a phone or text threat would not be considered an assault because it would require the perpetrator to travel to the receiver's physical location to carry out the threat. Assault also doesn't require physical touch, which would be considered a battery in the state of Florida.
Penalties for Assault
Simple assault — assault with no weapons or aggravating conditions — is a second-degree misdemeanor in Florida. It is punishable by up to 60 days in the county jail and $500 in fines. There are, however, other closely related crimes that carry harsher penalties.
- Battery – First-degree misdemeanor, punishable by up to one year in the county jail and $1000 in fines.
- Aggravated Assault (also known as “assault with a deadly weapon) – Third-degree misdemeanor, punishable by up to five years in prison and $5,000 in fines.
- Attempted Murder – First-degree felony, punishable by life in prison and $10,000 in fines.
- Assault on a Police Officer – First-degree misdemeanor, punishable by up to one year in jail and $1000 in fines.
Regardless of the criminal penalties you're facing, if you're convicted of an assault crime, you will have a criminal record that can be used against you when seeking employment or educational opportunities or in child custody disputes.
Legal Concepts in Assault Cases
While you shouldn't take any criminal charge lightly, simple assault is a second-degree misdemeanor. If you are careful, you may be able to avoid arrest or jail time.
Right to Remain Silent
In many assault cases, there is no physical evidence. Because there is no physical contact, there shouldn't be marks, abrasions, bruises, etc. Don't make the mistake of allowing your words to provide the police with evidence. Exercise your right to remain silent until you speak with a Florida violent crimes defense attorney to guide your next moves.
Assault is Not a Warrantless Exception in Florida
Simple assault does not fall under Florida's misdemeanor exceptions unless the victim is a public official. That means that the police probably can't affect an arrest without a warrant issued by the courts. The alleged victim will have to file through the Broward or Palm Beach state attorney's office. Many times, the victim will lose interest in pursuing charges.
Avoiding Perjury Charges
In Florida, it's illegal to lie to a police officer in the course of their investigation. Unfortunately, many people facing misdemeanor assault charges literally talk themselves into an arrest. If you are asked by the police if you committed an assault, you have the legal right to refuse to answer the question, but you don't have the legal right to lie. You might believe that it's your word versus the word of the other party, but there may be surveillance video or an independent witness that corroborates their story. This may lock you into the assault charge and earn you an additional obstruction charge.
Don't Try to Change the Victim's Mind
Once the alleged victim has filed criminal charges, they are protected under the law. If you approach them to get them to withdraw their charges or change their story, you could open yourself up to a charge of witness tampering, which is a felony.
Defenses in Assault Cases
Every assault case has its own nuances, so contact a criminal defense attorney to discuss your assault charges.
Lack of Evidence
If they've insufficient evidence against you — no witnesses or video, and you didn't make a statement counter to your interests — your attorney can file for dismissal.
Mutual Aggression
If the “victim” was also making threats and there was no escalation of violence, this may be grounds for dismissal.
Inability to Follow Through
In order for an assault to exist, there must be an apparent ability to commit it. So, for instance, if a person sitting in a car tells a drive-thru worker that they're going to punch them, it probably wouldn't constitute an assault due to the distance from the seat to the attendant, not to mention the obstacles in the way.
Frequently Asked Questions About Assault in Florida
The following question and answer section is not to be construed as legal advice. If you have been arrested for assault or know that charges are pending, contact a criminal defense lawyer immediately.
How serious is an assault charge?
In Florida, simple assault is a second-degree misdemeanor, punishable by up to two months in jail and $500 in fines. You will also have a criminal record. Assault may have different meanings in other states. Contact an attorney near you for more information.
What happens if you commit an assault?
If there is probable cause, you may be arrested. In most cases, the police will make a report and refer the victim to the county state attorney's office.
Is Assault Worse Than Battery?
In FL, simple battery has more severe repercussions than simple assault. That's because battery involves physical contact, whereas assault is only a threat of physical violence.
What if I'm Wrongfully Accused of Assault?
False allegations of crimes occur in places like Fort Lauderdale and West Palm Beach every day. Unfortunately, a wrongful accusation is not something you can just make go away. Contact a top-tier criminal defense lawyer and allow them to defend you.
If you are arrested for an assault or any other crime in Palm Beach or Broward counties, Weinstein Legal offers solid, aggressive criminal defense, and they have an unparalleled track record to show it.
