Westwood Assault Lawyer

Defending Clients Accused of Assault in Norfolk County

An assault has two possible meanings in Massachusetts. It is either (1) an attempted battery or (2) an immediately threatened battery. So, for example, an assault could be throwing a punch at someone (attempted battery) and missing (if you hit the person, it would be assault and battery). Or it could be coming at someone with fists flying or some other demonstration of an apparent intent to use immediate force on another (immediately threatened battery). Even if you never intended to actually hit the person, if that person was reasonably afraid that you were about to hit them, that can be an assault.

Common types of assault charges include:

• Assault & Battery
• Assault and Battery Causing Serious Injury
• Aggravated Assault and Battery
• Domestic Assault and Battery
• Assault and Battery on a Police Officer or Public Employee
• Assault and Battery by Means of a Dangerous Weapon
• Indecent Assault and Battery
• Assault on an Elderly Person (over 60)

If you are accused of assault, its important you seek legal counsel ASAP. Schedule your consultation by calling our firm at (617) 523-3500.

What Is Battery?

There is no separate crime of “battery” in Massachusetts. Usually, battery is any intentional unwanted or unpermitted touching of another person. The person does not need to be actually hurt in order for the touching to be a battery. There is no separate crime of “battery.” In Massachusetts, any intentional unwanted touching of another person is considered “Assault and Battery.”

What Is Considered Assault & Battery in Massachusetts?

An assault and battery is the intentional touching of another person without any right or excuse for doing so. Under some circumstances, an assault and battery can be unintentional but still criminal if it was committed by reckless conduct. If you engaged in reckless conduct (more than accidental) which caused bodily injury to another you could be charged with assault and battery.

An act is “reckless” when a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were so dangerous that it was very likely that they would result in substantial injury. In either case, the touching may not be merely accidental or negligent in order for it to rise to the level of criminal conduct.

What Is Assault & Battery with a Dangerous Weapon (Assault and Battery with a Deadly Weapon)?

Assault and battery with a dangerous weapon is comprised of all of the same elements as a simple assault and battery with the added element of a “dangerous weapon” being used to commit the touching. This charge is often challenged on the issue of whether the item was indeed a “dangerous weapon.” The law recognizes both “inherently” (automatic) and “non-inherently” dangerous weapons. Something is automatically considered a dangerous weapon if it is capable of causing serious injury or death (knives, guns, blunt objects etc.). The second category includes items that are normally used for innocent purposes but, as used, reasonably appear capable of causing serious injury or death (e.g. Shoe being used to kick someone. This is considered Assault and Battery with a Dangerous Weapon, th weapin being “shod foot.”).

What if the Person who was Injured Drops the Charges?

Despite what you may see on T.V., the victim cannot “drop the charges.” The prosecutor will inform the alleged victim that they may not “drop” the charges and that the decision to prosecute or not rest solely with the prosecutor. The prosecutor will sometimes consider the alleged victim’s opinion but, ultimately, the alleged victim is powerless to dismiss charges. Many times, in assault cases, the alleged victim has a privilege against self-incrimination (pleading the 5th) because of the facts or nature of the case. If this is the case, then the alleged victim may possibly be excused from testifying against the person charged. Whether or not they have such a right and whether they wish to exercise that right is something that the alleged victim should explore with an attorney in order to weigh all of the options.

What Happens if I am Arrested for an Assault Charge?

If you are arrested, you will be transported to a police station for booking and processing. You should not make any statements even if you think that you are helping yourself or explaining what “really happened.” Anything you say will be used against you. You may be permitted to post a bail and released to report to court on an assigned date. If you are not released on bail, you may be detained at the police station until you are brought to court for an arraignment.

At the arraignment, you will be informed of the specific charges you are facing and will likely get a police report explaining the claims against you. Next, you will be subject to a bail hearing, at which the court will decide whether you must post a bail in order to remain free while the case is open and, if so, how much that bail will be. At the bail hearing, you may also be ordered by the court to abide by certain conditions of release including reporting to probation or wearing a monitoring bracelet. The court will then set a future court date for additional hearings for things like discovery of evidence and filing of motions.

In addition to setting bail, the prosecutor may “move for dangerousness” or “move to revoke bail” is you have another open case. In either situation, the Judge may order that a defendant be held without bail. When facing losses to your freedom such as these, it is essential that you have experienced defense attorneys on your side.

What are the Penalties for Assault in Massachusetts?

The types of penalties for assaultive crimes (assault, assault and battery, assault and battery with a dangerous weapon, etc.) are complex and involve many variables including age of victim, mental condition of victim, and relationship to victim.

This list includes a basic outline of potential penalties for these types of crimes:

• Assault = up to 2.5 years in the house of correction
• Assault and Battery = up to 2.5 years in the house of correction.
• Assault and Battery by Means of a Dangerous Weapon = up to 2.5 years in house of correction or up to 10 years in state prison.
• Indecent Assault and Battery on a person under 14 = up to 2.5 years in the house of correction or up to 10 years in state prison.
• Indecent Assault and Battery on a person over 14 = up to 2.5 years in the house of correction or up to 5 years in state prison.
• Assault and Battery on a Police Officer = not less than 90 days and up to 2.5 years in the house of correction.
• Aggravated Assault and Battery = up to 2.5 years in the house of correction or up to 5 years in state prison.

You may also be subject to many conditions such as anger management, batterer’s programs, sex offender registration, or GPS monitoring.

What Causes an Assault Charge to be a Misdemeanor or a Felony?

In Massachusetts, a misdemeanor is a charge for which the maximum penalty is a house of correction sentence, and you cannot be sentenced to state prison. Just because you are charged with a misdemeanor however, that does not mean that you cannot go to jail. Most misdemeanors do have the potential of a jail sentence. Any charge for which you are subject to a state prison sentence – even those which give a state prison sentence as a possible alternative – is a felony charge in Massachusetts.

So, for example, a charge of assault and battery is punishable by up to 2.5 years in the house of correction and is, therefore, a misdemeanor. While the charge of assault and battery by means of a dangerous weapon is punishable by either up to 2.5 years in the house of correction or up to 10 years in state prison and is, therefore a felony.

What is a “Shod Foot”?

A “shod foot” is a shoe with foot with a shoe on it. When a defendant kicks someone with shoes on, they will be charged with “Assault and Battery with a Dangerous Weapon,” with the weapon being the “Shod Foot.”

Why You Should Hire an Assault Defense Attorney:

• These offenses carry severe penalties including terms of imprisonment, and many are felonies, which can impact your life in many ways for year to come.
• Often these cases hinge on witnesses who must be identified and evaluated. Mitigating factors and potential defenses such as self-defense must be quickly identified and explored fully.
• An assault defense attorney can begin work immediately to assess the case and prevent excessive bail and conditions of release. We can also begin to investigate the facts of the case and obtain critical evidence necessary to defend against the charges. This includes filing legal motions such as motions to suppress evidence and statements as well as motions to dismiss all or some of the charges based on the facts and law that apply.

Schedule your free phone consultation with a criminal defense attorney at Eisenstadt & Krippendorf Group, LLP by filling out our confidential contact form or by calling 24/7 to get live help
at (617) 523-3500 right now.