A Very Thin Line: When Brandishing a Firearm Leads to an Aggravated Assault Charge
It’s Saturday night and you and your friends are hanging out at the hottest spot in Atlanta. You’re on the dance floor, having a great time. Next thing you know, a guy bumps into you and the drink you had in your hand spills onto your favorite shirt. He doesn’t stop. He doesn’t apologize. He keeps walking, but suddenly turns around to see you brandishing a gun in his direction. You’re not intending to kill or injury him. You pulled out your firearm to merely frighten him. In fact, your gun isn’t even loaded. The cops are called and you’re arrested—charged with aggravated assault; despite your intentions. You think to yourself, this is unbelievable. After all, you didn’t harm anyone, right? And, you’re wondering why you are being charged with aggravated assault?
You’re probably thinking that—at most—you should only be charged with brandishing a firearm. In Georgia, the criminal code doesn’t specifically address the act of “brandishing” a firearm. However, under O.C.G.A. 16-11-102 Pointing or Aiming Gun or Pistol at Another, a person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded. You believe whole heartedly that you’ve only committed a misdemeanor. Unfortunately, the prosecuting attorney interprets the facts differently and believes he/she can prove that you committed aggravated assault.
Under Georgia law, O.C.G.A. 16-5-20 Simple Assault, a person commits the offense of simple assault when he or she either: (1) attempts to commit a violent injury to the person of another; or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury. A simple assault charge rises to the level of an aggravated assault when a person assaults another: (1) with intent to murder, to rape, or to rob; (2) with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; (3) with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or (4) a person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons (O.C.G.A. 16-5-21 Aggravated Assault).
You may not have intended or attempted to violently injure the other party; however, because the other party expressed to the arresting officers that he was in fear of his life and reasonably believed you were going to shoot him—causing death or seriously bodily harm—element two of a simple assault charge is satisfied. Further, a simple assault charge does not require physical contact as many people may not be aware.
The charge is upgraded to aggravated assault because of the use of a deadly weapon in an offensive way that—if actually used—would cause another to suffer serious bodily harm or death. In this case, a gun. Note that a deadly weapon could also be a knife, bat, brick or any ordinary household object that if used in a certain manner would cause great bodily harm. Believe us, we’ve seen and heard it all, including a case where a defendant was charged with aggravated assault for throwing a floor fan in another’s direction. Yes, a floor fan!
Aggravated Assault Penalties & Justifiable Defenses…
Facing an aggravated assault charges means that your freedom is on the line. Aggravated assault is a serious offense and constitutes a felony. If convicted, a person can be punished by imprisonment for up to 20 years and not less than one year and/or significant probation. Also, punishment for aggravated assault varies when involving a public safety officer, a person who is 65 years or older, a student or teacher in a school safety zone, against past or present spouses, pregnant women or minors. There are, however, some defenses that could possibly be raised such as proving that you acted in self-defense or in the defense of another.
Call Bixon Law…
When you’re facing up to 20 years in prison, you need someone on your side who will fight to get your case dismissed or your charges reduced. At Bixon Law, we are experienced attorneys and we care about our clients. If you or a loved one has been charged with aggravated assault or any criminal offense in Georgia, please call us at 404-551-5684 for a free consultation today.