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Fourth Degree Assault – Level of Harm

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A fourth degree assault is charged when a person allegedly assaults a certain class of individuals – usually a police officer or paramedic, for example. Most assume that this is an automatic felony; and frankly, this is how it is charged out most of the time. But, the presumption is that it is a gross misdemeanor, unless there is evidence of a certain level of harm. This is what we’ll talk about in this blog.

In order for the State to charge – and ultimately try to prove – a felony level offense, one of the following two circumstances must exist:

  1. the assault inflicts “demonstrable bodily harm”; or
  2. the defendant intentionally threw or otherwise transfered bodily fluids or feces at or onto the officer.

The latter circumstance is pretty self-explanatory. Don’t spit at or throw feces at an officer. If this occurs, the State will not take kindly to this behavior and will seek the felony charge to stick. The first circumstance, though, is not so easy.

To begin with, “demonstrable bodily harm” is not defined by statute. In contrast, the other degrees of assault are based upon the level of harm inflicted and there are definitions on these terms – e.g. great versus substantial bodily harm. Here, the statute is silent on “demonstrable bodily harm.”

Minnesota case law has created this working definition: “capable of being perceived by a person other than the victim.” Essentially, the question is: can you see actual bodily harm? A Court of Appeals decision reversed a conviction in which the record only demonstrated that the officer suffered a bicep strain that could not be seen.

For whatever reason, this definition is often overlooked when charging and prosecuting the case. Understanding what is required can lead to a successful defense against a serious felony charge – a felony that can have long-lasting collateral consequences, such as a loss of job.

If you are facing a felony Fourth Degree Assault charge, be sure you get an attorney that understands this nuance and how to best build your defense. The team of criminal defense attorneys at North Star Criminal Defense have this experience and knowledge to fight for you.



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