Category Archives: Misdemeanor

Can A North Carolina Assault Ever Be Accidental?

Many people use the term “assault and battery” to describe criminal acts. Although North Carolina combines the two, each term has distinctive meanings, while some states separate them.

North Carolina assault between two menAn assault in North Carolina is classified as giving another party (the “aggrieved” party) the fear of bodily harm, including the possibility of death. Acting in a potentially threatening manner or communicating threats of harm without touching another person is classified as “assault.

Battery” includes the actual contact and unwanted touching of a person without their consent. It is frequently combined with assault, but is a charge on its own.

Assault can be either a misdemeanor class or higher, depending on the severity of the assault. North Carolina assault charges have several classes, from simple to the felonious “assault with a deadly weapon.” The statute for the various degrees of assault is detailed in N.C. Gen. Stat. Ann. § 14-33.

The Components of Assault

In order for an “assault” to occur, several components must be present:

  • One person threatens to or actually does harm another individual.
  • The other person had reason to believe he or she was actually in danger of being harmed
  • The intended harm was immediate and imminent
  • The assailant’s behavior was “offensive behavior” or communicated a physical threat, such as raising a fist to a potential victim’s jaw, indicating a potential punch

All of these elements must be in place to indicate assault, but it can be difficult to prove actual intent, as well as harmful and/or offensive. This is especially true when phrases like “I’m going to beat you senseless” are used casually, and refer to a sporting activity rather than to indicate the imminent intent of harm.

Defenses Against Assault

It is possible to raise a defense against assault charges. Potential defenses against North Carolina assault charges include:

  •  Self-defense—instead of the aggressor, you were the victim, and needed to use reasonable force to defend yourself or another person from the attacker. You must show that the other party acted first, and that you used reasonable force for the situation with which you were faced.
  • Consent—you and the other individual agreed to engage in a fight or other activity that led to injuries consistent with an assault.
  • Alibi—the prosecution charged the wrong individual, and you can prove your whereabouts at the time of the incident with one or more witnesses.

Can It Be Accidental?

Since assault is the act of someone intending to create a state of fear in another individual, but not necessarily making contact, the answer is probably “no.” An accident is just that, an accident, done without intent, and not intended to give the other individual fear of being attacked or harmed in any way.

However, every accusation of assault is different. Consult with an experienced Raleigh criminal defense attorney to discuss your case and build a strong defense if you are required to attend a trial.

Fight Assault Charges

Dewey P. Brinkley is an experienced Raleigh criminal defense attorney. As a former Wake County Assistant District Attorney, he understands the North Carolina criminal justice system. He has the experience to defend you in court against assault, whether a misdemeanor or felony charges.

Call the law offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.

 

Why is Resisting Arrest a Serious Crime in Raleigh, NC?

You’re being arrested, and you’re not sure why. Maybe you’re innocent and happened to be in the wrong place at the wrong time. Whatever it’s for, you may be tempted to flee the scene or otherwise put up a fight, especially if you believe it’s a wrongful arrest. But should you?

Why Resisting Arrest Is A Crime

Why is Resisting Arrest a serious crime in Raleigh, NC?North Carolina General Statutes Section 14-223 states that “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.”  Additional information is available here.

Resisting arrest is doing something that interferes with a police officer doing his or her job. You can go to jail for as long as three months, even if you are innocent of the original charge. For instance, if you’re wrongly arrested for shoplifting and fight or resist the police officer, you can also be charged with resisting arrest. You may be acquitted of shoplifting, but can still be convicted of resisting arrest, and make a bad situation worse. In other words, until you resisted, you were innocent.

You may also be charged if you refuse to cooperate with an officer, give false information or refuse to accept a traffic ticket. Anytime you obstruct, resist or delay an officer or prevent him from doing his or her job, you can be arrested. While these are not the same as physical resistance, they carry the same weight.

Conviction of resisting arrest is a Class 2 Misdemeanor. This can mean:

  • Fines up of up to $1,000
  • Jail time of up to 60 days in county jail
  • Probation that can include required “counseling” and other regular meetings
  •  A requirement for community service

Defense

“Resisting arrest” can be interpreted a number of ways, but there are defenses that can be raised.

  • Self-defense against excessive force—the police are allowed to use necessary force in the course of an arrest. However, they are not allowed to be violent or use excessive force during arrests. If you were the victim of excessive force, you can argue that you were in the act of defending yourself.
  • Unlawful arrest—if a police officer arrests you without a warrant, do not have probable cause or otherwise exceeds authority, you have been “unlawfully” arrested.
  • False accusations—in court, you and your attorney must prove that the accusations are actually false.

Consult with an experienced criminal defense attorney before going to prepare your best defense.

Avoid Being Charged With Resisting Arrest

The first thing to remember is to be polite and cooperate with the police officer. No swearing, fighting or otherwise interfering with the officer, including resisting, delaying, or obstructing him or her.

You are required to give your name to the officer as well as your state identification. (If you’re involved in a car accident, you’ll also be asked for insurance and registration, which is also required.) Beyond that, you do not have to answer any questions, no matter how forcefully they are asked. Decline to answer, in the most civilized and polite fashion, and request to speak to a criminal defense attorney. (You may be given a public defender first.) Avoid answering any more questions or providing any information that, as they say on TV, can, and will, be used against you in court. You could unwittingly give a prosecutor enough information to convict.

Fight Charges of Resisting Arrest

Dewey P. Brinkley is an experienced criminal defense attorney in Raleigh. Before defending those accused of crimes, he was a Wake County Assistant District Attorney. He understands the criminal justice system and can defend you against even the most serious felony charges. If you’re charged with resisting arrest, you must take it seriously.

Call the Law Offices of Dewey P. Brinkley today for a free initial consultation to discuss your case at (919) 832-0307. You can also email us at dewey@deweypbrinkleylaw.com, or use our online contact form.