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DUI and Aggravated Assault

What Is Assault?

Most of us understand assault under the common law definition.  Common law defines assault as unlawfully and intentionally applying force to the person of another, or inspiring a belief in that other that force is immediately to be applied to him.  Arizona, however, does not follow "common law." Arizona has adopted a statutory criminal code, and in so doing, abolished common law offenses.  A.R.S. § 13-103.

State of Mind - Mens Rea

Under the common law, one had to intend to commit assault.  In legal terms, one had to have mens rea.  The literal translation from Latin is "guilty mind."  If one intentionally hurt another, it was assault.  If one hurt another unintentionally it was an accident. 

Arizona statutory law changed this.  Under Arizona law, you can act without intent, but recklessly, and still be guilty of assault.

In Arizona, assault is defined by statute. Basic (misdemeanor) assault falls under A.R.S. § 13-1203

13-1203Assault; classification

A. A person commits assault by:

1. Intentionally, knowingly or recklessly causing any physical injury to another person; or

2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult or provoke such person.

B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.

Reckless Behavior

Reckless conduct, as it relates to criminal acts is defined under A.R.S. §13-105

"Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk."

DUI Accidents

Accidents occurring in conjunction with DUI, absent an intervening cause, are considered avoidable and the result of reckless behavior.  "The rationale for the criminalization of driving under the influence is the potential risk of injury or damage that arises from operation of a vehicle while under the influence."  State v. Olquin, 216 Ariz. 250, 254, ¶ 22, 165 P.3d 228, 232 (App. 2007).  When a person drives under the influence, one arguably disregards "a substantial and unjustifiable risk" their behavior will result in damage and or injuries.  

Aggravated Assault 

A more serious form of assault is Aggravated Assault.  When an assault defined under  defined under A.R.S. § 13-1203 results in serious physical injury, or a deadly weapon is used, it becomes a felony Aggravated Assault charge defined under A.R.S. §13-1204.  Punishment can be severe. In conjunction with a DUI we see Aggravated Assault charges being filed when an accident results in a serious physical injury to another. Serious physical injury” includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.

Aggravated Assault is also commonly charged alleging a deadly weapon or dangerous instrument was used. "Dangerous instrument” is readily capable of causing death or serious physical injury. Arizona courts have held a motor vehicle fits the definition of a dangerous instrument.

Dangerous Nature Allegation

Aggravated Assault based on causing a serious physical injury is a class two felony. If you caused a serious injury in a DUI car accident, because a “dangerous instrument” was used the offense can be charged as a dangerous nature offense.  In Arizona, a dangerous nature allegation can be attached to certain felony crimes, such as aggravated assault. A dangerous offense is defined as a crime that involves the use of a deadly weapon or dangerous instrument, or the intentional infliction of serious physical injury.  If a person is convicted of a dangerous nature offense, the amount of prison time the person faces increases, and probation as a sentencing option is elimited.  Aggravated assault based on causing an injury using a dangerous instrument is a class two felony.

A straight Class 2 Aggravated Assault conviction carries a presumptive sentence of 5 years.  Based upon circumstances, the court can give as little as 3 years, or as much as 10 years.  The court, however, also has the option of placing the individual on probation.

Adding the dangerous nature allegation increases the prison time.  A person convicted of a Class 2 Aggravated Assault as a dangerous nature offense faces a mandatory prison term between 7 - 21 years.  Probation is not available. 

A slightly less serious DUI Aggravated Assault can be charged if the injuries suffered were temporary but nonetheless still serous such that they resulted in substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part.” DUI Aggravated Assault based on temporary but substantial impairment is a class three felony. If charged as a dangerous nature offense, the charge calls for a mandatory 5 - 15 years in prison.

Focused On Your Case

We understand that a DUI charge is like a dark cloud looming above you. We work together to make sure that you not only get a great resolution to your case, but that you also know that you are well taken care of every step of the way.