Types of Assault in Kentucky
Assault charges can arise from conduct that causes injury to another person, from a motor vehicle accident to a fist fight. The Kentucky Penal Code contains five different assault offenses, as well as penalty enhancement for assault of a family member or unmarried partner and a defense for defendants who acted under extreme emotional disturbance. The elements and definitions that exist within these statutes can be daunting and confusing. An experienced attorney can navigate these statutes and find the best possible defense for your situation.
Assault First Degree
A person can be found guilty of First-degree assault under KRS § 508.010 if he or she intentionally causes serious physical injury to another person. This can either be through the use of a deadly weapon or dangerous instrument or through wanton conduct which creates a grave risk of death to another under circumstances that show extreme indifference to the value of human life. Serious physical injury is defined under KRS § 500.080 as a physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of a bodily organ.
A deadly weapon can include any of the following:
- A weapon of mass destruction
- Any weapon from which a shot, readily capable of producing death or other serious physical injuries, may be discharged
- Billy, nightstick, or club
- Blackjack or slapjack
- Nunchaku karate sticks
- Shuriken or death star
- Artificial knuckles made from metal, plastic, or other similar hard material
A dangerous instrument is defined under Kentucky law as “any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.”
Assault in the first degree is a Class B felony punishable by 10 to 20 years in prison.
Assault Second Degree
Under KRS § 508.020, a person is guilty of second degree assault when one of three situations apply: (1) he or she intentionally causes serious physical injury to another person; (2) he or she intentionally causes physical injury to another person using a deadly weapon or dangerous instrument; or (3) he or she wantonly causes serious physical injury to another person using a deadly weapon or dangerous instrument. Physical injury is defined as “substantial physical pain or any impairment of physical condition.” A person acts wantonly when he or she is aware of a substantial and unjustifiable risk and consciously disregards it.
Assault in the second degree is a Class C felony punishable by 5 to 10 years in prison.
Assault Third Degree
Assault in the third degree is defined under KRS § 508.025. This charge is reserved for cases in which a person either recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to one of the following:
- A state, county, city, or federal peace officer
- An employee of a detention facility, state residential treatment facility, or state staff secure facility for residential treatment
- An employee of the Department for Community Based Services employed as a social worker, if the event occurs while performing job-related duties
- Paid or volunteer emergency medical services personnel certified or licensed pursuant to KRS Chapter 311A, if the event occurs while performing job-related duties
- A paid or volunteer member of an organized fire department, if while performing job-related duties
- Paid or volunteer rescue squad personnel affiliated with the Division of Emergency Management of the Department of Military Affairs or a local disaster and emergency services organization pursuant to KRS Chapter 39F if the event occurs while performing job-related duties
- A probation and parole officer
- A transportation officer appointed by a county fiscal court or legislative body of a consolidated local government, urban-county government, or charter government to transport inmates when the county jail or county correctional facility is closed while performing job-relating duties
- A public or private elementary or secondary school or school district classified or certified employee, school bus driver, or other school employee acting in the course and scope of their employment
- A public or private elementary or secondary school or school district volunteer acting in the court and scope of that person’s volunteer service for the school or school district
Alternatively, assault in the third degree can also be charged when a person confined in a detention facility, state residential treatment facility, or state staff secure facility for residential treatment inflicts physical injury upon or throws or causes feces, urine, or other bodily fluid to be thrown upon an employee of the facility.
Assault in the third degree is a Class D felony punishable by 1 to 5 years in prison.
Assault Fourth Degree
Under KRS § 508.030, a person is guilty of assault in the fourth degree when he or she intentionally or wantonly causes physical injury to another person, or with recklessness, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument. A person acts recklessly when he or she fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
Assault in the fourth degree is a Class A misdemeanor punishable by up to12 months in jail.
Assault of a Sports Official
There is a special carve-out in the Kentucky Penal Code for assault of a sports official. Under KRS § 518.090, a person is guilty of assault of a sports official when he intentionally causes physical injury to a sports official who was performing sports official duties at the time the physical injury was perpetrated or if the physical injury occurs while the sports official is arriving at or departing from the athletic facility at which the athletic event occurred. A sports official is defined under the statute as “an individual who serves as a referee, umpire, linesman, or in a similar capacity that may be known by another title, and who is duly registered as or is a member of a national, state, regional, or local organization engaged, in part, in providing education and training to sports officials. Sentencing under this statute can depend on the circumstances of the crime.
A first offense under this statute is a Class A misdemeanor unless the defendant assembles with five or more persons for the purpose of assaulting a sports official, in which case it is a Class D felony. A second or subsequent offense is a Class D felony.
Assault – Domestic Violence Enhancement
Kentucky also allows penalty enhancement when the victim is a family member or a member of an unmarried couple under KRS § 508.032. A family member means a spouse, former spouse, grandparent, grandchild, parent, child, stepchild, or any other person living in the same household as a child if the child is the alleged victim. A member of an unmarried couple means each member of an unmarried which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who is living together or have formerly lived together.
Under this statute, a third or subsequent charge of assault in the fourth degree within a period of five years can be enhanced from a Class A misdemeanor to a Class D felony if the victim and perpetrator are family members or members of an unmarried couple.
Assault – Extreme Emotional Disturbance
KRS § 508.040 provides for a statutory defense of extreme emotional disturbance in prosecutions for assault in the first, second, or fourth degree. Under this statute, a defendant may present mitigation evidence that he or she acted under the influence of extreme emotional disturbance. An extreme emotional disturbance is defined in Kentucky as “a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.”
An assault in the first or second degree committed under the influence of extreme emotional disturbance is downgraded to a Class D felony, while an assault in the fourth degree committed under extreme emotional disturbance is downgraded to a Class B misdemeanor.
Assault Case Results
Felony Assault Warrant Rescinded
Our client was charged with felony assault from an altercation several years prior. The client had since moved out of state and lived a crime free lifestyle. Pursuant to his military career, a federal background check was performed which revealed that he had an outstanding warrant for Assault 2nd Degree pursuant to KRS 508.020. The client called our attorney Abe Mashni to discuss his options. Abe was able to successfully negotiate with the prosecutor to recommend dismissing the charges and rescinding the warrant. On the prosecutor’s recommendation, the judge ultimately rescinded the warrant and our client was able to move on from this nightmare.
Assault 4th (Domestic Violence) – Dismissed
R.N. was charged with Assault 4th (Domestic Violence). R.N. was facing twelve (12) months of jail time, loss of his right to possess a firearm, and stigma of a domestic violence criminal conviction. After a series of negotiations with the prosecution, Abe Mashni was able to negotiate a resolution to get the case dismissed. R.N. completed a series of domestic violence classes and his nightmare was over.
Assault Charges Dismissed
Our client and girlfriend got into an argument where it was alleged that the client slapped the girlfriend several times in the face, leaving marks and bruising. After taking pictures of the girlfriend’s face, our client was charged with assault and a warrant was placed for his arrest.
The client maintained his innocence from the beginning. Tucker Richardson, lead attorney on the case, met with the client and reviewed the police documents. While investigating the claims, the client advised that his girlfriend was attempting to contact him and had hinted she would come clean and admit the fabrication. Tucker was able to amend the bond conditions to allow our client and the girlfriend to communicate with each other while the case was still pending. Over the next few weeks, the girlfriend admitted that she had slapped herself several times in the face to make it appear that our client had assaulted her. After sharing that information with the Government’s attorney, all charges were dismissed.
Lead Attorney: Tucker Richardson
Assault 4th – Dismissed
Our client was involved in a dispute with his wife and she was left with a very inconsequential red mark. Wife filed a police report to document the incident but never wished to file a criminal charge against our client. The police arrested our client. Both the client and his wife were in shock. He then faced a Class A misdemeanor of Assault 4th, Domestic Violence, and losing his job of over two decades if convicted. He hired Brandi Lewis, former prosecutor, to represent him. Brandi was able to use her experience and point out aspects of the client’s case to demonstrate this was an isolated incident and there was no safety concern to have the case dismissed, after the second court appearance.
Assault Charges Dismissed
Our client and his longtime live-in girlfriend got into a shouting match after a late night of partying. The girlfriend ended up calling the police to make our client leave the residence. Officers got to the residence and woke our client up, who was asleep in a downstairs bedroom. Officers ultimately made our client leave the residence. As he gathered his belongings, the argument continued. On his way out the door, the client is alleged by the officer to have “extended his right fist, striking girlfriend in the right eye.”
After speaking with the client and reviewing the police body cam video of the incident, it became immediately apparent that when the client was leaving the residence, he stuck out his right hand and was in the process of shooting the girlfriend the international symbol “The Bird”, he accidently hit her in the nose. As the complaining witness had no visible injury and due to the apparent accidental nature of the act, all charges were dismissed. Client walked out of the courtroom a free man without the stigma of a domestic violence conviction.
Lead Attorney: Tucker Richardson