In California, Assault With A Deadly Weapon (ADW) is defined as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another. Simple Assault is defined as an unlawful attempt, coupled with a present ability to commit a violent injury on another person.
It is surprising what can be considered a deadly weapon. Clients come to me after being arrested for ADW and ask me how they can possibly be charged with this crime when they had no weapon. They are always shocked when I explain to them that even something as seemingly innocent as a shoe can be considered a weapon. One of the elements of this charge is “assault that is committed by means of force that is likely to cause great bodily injury to another.” So, using the example of a shoe, if someone is being kicked repeatedly in the head and/or other parts of the body, the District Attorney can charge you with ADW, alleging that the shoe was the deadly weapon.
A “deadly weapon” is defined as any object that is capable of producing death or great bodily injury to a person. For example, swinging a beer bottle at another, threatening to stab someone in the neck with a sharp pencil or using your car to hit another person or another person’s car while they are inside, all qualify as deadly weapons.
ADW is usually charged as a felony. However, the prosecution can decide to file it as a misdemeanor depending upon the circumstances. This is referred to as a “wobbler” meaning that it can go either way. In deciding whether to file as an ADW felony or as a misdemeanor, three important facts must be determined:
1) The type of weapon allegedly used;
2) Whether or not the alleged victim sustained injuries and if so, how serious; and
3) The nature of the victim. Meaning, was the alleged victim an officer, firefighter or other “protected” person.
To be convicted of ADW, the prosecution must prove that the defendant did assault someone (keeping in mind the legal definition of assault) and that the assault was committed with a deadly weapon, or other means of force likely to cause great bodily injury.
Unfortunately, innocent people are accused of ADW all the time. The accuser often times exaggerates or lies to the police officers when, in reality, it may have been an act of self-defense or defending another.
Fortunately, there are defenses to Assault with a Deadly Weapon. Having an experienced criminal defense lawyer who has experience in defending ADW charges is curtail. Because the alleged victim does not have to have sustained any injury in connection with the ADW charge, it is easy to be falsely accused of and arrested for this crime.
A skilled Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. These defenses include:
1) The inability to actually carry out the assault;
2) Self-defense or defense of another;
3) Consent (an example would be participation in a fight club);
4) Lack of intent;
5) Insufficient evidence; and
6) Misconduct or failure to follow proper procedure by the law enforcement agency.
Anyone being accused of Assault With A Deadly Weapon, should seek the advise of an attorney who is familiar with all the Courts in the County within which the case is pending. An attorney, who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be in a better position to get the charges dismissed or reduced.
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