Most people know what an assault is, but when it comes to criminal charges in Nebraska, there are different types. So what is Third Degree Assault in Nebraska?
As is usually the case with the law, it can get confusing sometimes. Read on and we’ll break it down for you.
What Constitutes Third-Degree Assault in Nebraska?
A person commits third degree assault in Nebraska if he or she:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
(b) Threatens another in a menacing manner.
In other words, you have to either intentionally do something that causes bodily injury to someone or you have to threaten them in such a way that puts them in real fear.
Just what kind of threat is done in a menacing manner is less clear.
The courts have found that to “threaten” is commonly understood to mean promising punishment, reprisal, or distress. The meaning of “menacing” includes the showing of an intention to do harm. (see State v. Kunath, 248 Neb. 1010 (1995)).
While this gives some guidance, there is still plenty of room for interpretation and would depend on the specific facts of a case.
If you want to read the actual law, check section 28-310 of the Nebraska Revised Statutes.
What is the sentence for 3rd Degree Assault?
Third Degree Assault is a Class I Misdemeanor in the state of Nebraska. That means the range of possible penalties is 0 to 1 year in jail or up to a $1,000 fine or both. Probation is also a possibility and would be up to the judge.
Your actual sentence would depend on several factors. The court may consider your prior record and the nature of the offense. Some counties also have diversion programs for people that qualify.
What is Assault by Mutual Consent?
Assault by mutual consent is when two people are voluntarily fighting each other. You know how it goes, someone picks a fight and they both start swinging.
If a person is charged with assault by mutual consent, the possible penalties are less. The maximum is 6 months in jail or up to a $1,000 fine or both.
The key take away is that two people can’t agree to fight and still not break the law.
Self-Defense as a Defense to 3rd Degree Assault
Also important to remember is that self-defense can be a defense to either 3rd Degree Assault or Mutual Consent Assault.
In Nebraska, self-defense is called “Use of Force in Self Protection” in section 28-1409.
It says that the use of force is a defense if the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
Whether this applies in a particular case would depend on the facts.
What is the Difference Between 1st, 2nd and 3rd Degree Assault?
Of the three “degrees” of assault, third degree assault is the least serious. Both First and Second Degree Assault are felonies, while Third Degree Assault is a misdemeanor.
Second Degree Assault is when someone intentionally causes bodily injury to another person with a dangerous instrument, or recklessly causes serious bodily injury with a dangerous instrument.
The primary difference is the use of a dangerous instrument. A dangerous instrument is pretty broadly defined under Nebraska law and can include anything that is used in such a way that it is capable of causing bodily injury.
First Degree Assault is when someone intentionally causes serious bodily injury to another person. This is the most serious assault charge due to the severity of the injuries involved.
Serious bodily injury involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.
Is a Third Degree Assault Charge Serious?
Yes. While it is not a felony in Nebraska, it still holds a maximum penalty of up to a year in jail. Also, any conviction on your criminal record can have consequences in your life down the road.
If you’ve been charged with 3rd Degree Domestic Assault, the consequences can be even more serious. Check out this article on Domestic Assault to learn more.
If you are facing charges or know someone who is, feel free to contact us or click to chat.