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Let's Talk About Aggravated Assault and Immunity Defenses

The crime of Aggravated Assault falls under Title 16, Chapter 5 of the Georgia Criminal Code, which categorizes Crimes Against the Person. Specifically, it's O.C.G.A § 16-5-21 and in part it reads:

(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.

There are additional parts to the statute that address aggravated assault against police officers, officers of the court, elderly persons, and spouses. However, in this post I want to focus on the main parts of the statute and possible defenses for those charged with the crime of Aggravated Assault.

If you look at element 2 listed above it's easy to see why it would most often be the specific circumstance one would be charged with this crime. In the other three elements there is a specificity that must be met that is lacking in element 2. For example, in element 1, there has to be intent to engage in one of the three crimes listed. In element 3 the state cannot prove it unless strangulation is at least possible. And in element 4 a defendant must be found guilty of both of discharging a firearm and doing it from a motor vehicle for the element to be met.

On the other hand, element 2 is sort of a “catch all” element. When you say “any” object, device or instrument that can be used offensively against a person, the list is endless. And remember, the definition of assault means no physical contact or battery has been made to the victim, only the mere threat of force completes the offense. When you take all this into account it's easy to understand that there can be enumerable situations in which one can be charged with Aggravated Assault, a crime that's punishable from one to 20 years in prison if convicted.

The good news is that, under certain circumstances, there are several viable defenses most defendants can take advantage of that, in essence, makes them immune from criminal prosecution. Here are a few things to bear in mind:

  1. You can't take advantage of an immunity defense if the object used in the assault is an unlawful or illegal weapon.

  2. You can't be the initial aggressor, or somehow initiate the confrontation to goad the victim into an action that then gives you pretext for assaulting him or her.

  3. In most cases, you can claim immunity if you are acting to prevent a stranger from entering your home if you reasonably believe they intend to harm you or commit a felony. In fact, under Georgia case law, even your vehicle counts as habitation under these circumstances

  4. Finally, these immunities apply not only to defending one's self, but also if you are defending another from the victim.

If you've been arrested and charged with Aggravated Assault or any other criminal offense contact Attorney Preston Fleming at The Fleming Firm to schedule a FREE CONSULTATION. He can be reached at (770)727-0599 or pfleming@theflemingfirm.com. You can also simply complete the contact form at www.theflemingfirm.com and submit it. Someone from our firm will reach out to you within 24 hours.