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Basic Definitions of Assault and Battery

An assault is an unlawful attempt coupled with a present ability to commit an injury to another person. A battery is any willful and unlawful use of force or violence on another person. An assault can be characterized as an attempt to commit a battery and can actually occur without the battery. Every battery includes an assault.

Ronald Dinan and Associates offers expert legal counsel with the following assault-related charges and issues:   Spousal Assault Domestic Violence Sexual Assault Violation of Probation Failure to Appear in Court Resisting Arrest Child Abuse

There are many statutes (laws) created by the California Legislature that deal with different types of assault and battery. Basically, assaults and batteries are classified by:

(1) Specific means such as assaults with chemicals or drugs, assault with a deadly weapon or stun gun or taser,

(2) Specific people such as a police officer in the performance of his or her duties or assaults by convicts,

(3) Where they take place such as assaults on school grounds, park property or in a hospital,

(4) The victims that are affected such as a spouse, a cohabitant, or fellow parent in a domestic violence assault,

(5) Specific laws designed to prevent violence against public safety providers such as police officers, school security officers, firemen, jail personnel, EMTs, lifeguards, process servers, animal control officers, etc.

In California, criminal assault has been classified as an attempt to commit a battery by someone who has the present ability to actually commit the battery. There is no such offense known as an attempt to assault. Also, strictly speaking, battery does not have to be violent and can include the least touching. The force does not need to cause bodily harm or even leave a mark.

Domestic Violence

The most common assault and battery charge involves domestic violence. A domestic violence battery can be committed against a (1) spouse, or (2) a person with whom the defendant is cohabitating, or (3) a person who is the parent of the defendant's child, or (4) former spouse, or (5) a fiancee, or (6) a person who whom the defendant currently has or has previously had, a dating or engagement relationship. (Penal Code '243(e)(1)).

This particular crime can be charged as a misdemeanor (imprisonment in a county jail for not more than one year) or as a felony (imprisonment in state prison for two, three or four years). Penal Code '273.5(a), a domestic violence battery with injury, involves Aany person who willfully inflicts, upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father or his or her child, corporal injury resulting in traumatic condition (a condition of the body such as a wound or external or internal injury including but not limited to, injury as a result of strangulation or suffocation whether of a minor or serious nature. Any minor scratching or bruising can qualify as an injury. However, "redness" does not qualify.

Defenses to Assault and Battery

Defenses to an assault or battery charge are many and varied and, generally, depend upon the circumstances that existed at the time of the incident.

Involuntary intoxication (where someone=s drink is spiked with alcohol or drugs) may be a defense. Automatism or unconsciousness may also be a defense (which assault lawyers have recently been arguing is the state of mind that people may suffer by using Ambien).

Ignorance of the law is not a defense nor is, generally, a mistake of law. However, a mistake of fact can be a defense if it negates or cancels criminal intent or knowledge. These are detailed nuances in the law that generally requiring the assistance of a domestic violence lawyer.

Self-defense may also be a justification for acts that would otherwise be considered criminal. Generally, for a successful self-defense argument, there must be an apparent necessity for the action, the force must be reasonable under the prevailing circumstances and the threatened act against someone must be unlawful. Generally, there is no required need to retreat and an individual may stand their ground. This defense is not available to someone who seeks a quarrel or a fight with someone else in an effort to create a necessity to assault someone.

A defense to an assault may also arise in circumstances of defending property (such as a home), an attempt to prevent and preserve the peace or the apprehension of a criminal.

Regarding domestic violence charges, common defenses include denial of the alleged violence, self-defense, and, characterization of any violence as either accidental (as opposed to intentional) or as necessary to get away from someone who is using or threatening to use violence.

If you have been charged in an assault case, your best decision is to contact a domestic violence lawyer or assault lawyer. Our practice concentrates in the counties of Sonoma, Marin, Napa, Mendocino, Humboldt and Lake. Our six Bay Area offices are centrally located in the cities in which the courthouses are located, including Santa Rosa, Napa, San Rafael, Lakeport, Ukiah, and Eureka. We welcome all questions and inquiries and will answer them in a pleasant, courteous and helpful manner. To speak with an attorney,call us today!