A 54 year old man was arrested in Laguna Niguel after being accused of assaulting the owner of the home where he was employed as a Gardner. According to witnesses, the Gardner and the owner began arguing over instructions being given by the owner. The argument escalated at which point the Gardner reportedly hit the owner with a gardening tool. The Gardner then reportedly went back to his truck and came back with a power hedge trimmer and began chasing the man with it. This man is facing, at the very least, assault charges and, more than likely, the Orange County District Attorney will file assault with a deadly weapon charges.
In California, the law defines Assault With A Deadly Weapon (ADW), 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.
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 ADA 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.
A “deadly weapon” is 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.
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, in Orange County, California, 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 California 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. Some of the defenses a good criminal defense attorney might use are: 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 in Orange County, California, should seek the advise of an attorney who is familiar with all the Courts in Orange County. 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 better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.
If you would like to know more about Assault With A Deadly Weapon or ADW, contact Criminal Defense Attorney William M. Weinberg.