Family Violence Aggravated Assault With a Deadly Weapon in Georgia

When a weapon is alleged in a dispute between family or household members, Georgia prosecutors may file a family violence aggravated assault charge carrying years of potential imprisonment. The allegation may involve a gun or knife, but an ordinary object can also be treated as a deadly weapon based on how it was used.

The presence of a weapon does not automatically prove guilt, and it does not automatically establish self-defense. The case turns on the charged assault, the manner in which the object was used and whether the accused reasonably believed the chosen level of force was immediately necessary.

What Must the State Prove?

Georgia aggravated assault generally begins with a simple assault. Under O.C.G.A. § 16-5-20, an assault may involve attempting to commit a violent injury or placing another person in reasonable apprehension of immediately receiving a violent injury.

Under O.C.G.A. § 16-5-21(a)(2), an assault becomes aggravated when committed with a deadly weapon or with an object, device or instrument that, when used offensively, is likely to or actually does cause serious bodily injury. A person does not always have to be struck. Displaying or pointing a weapon may support a charge if the required immediate apprehension can be proven.

What Can Be Considered a Deadly Weapon?

Firearms and many knives are common examples, but the law is not limited to items designed as weapons. Depending on how an object was allegedly used, prosecutors may identify a vehicle, bottle, tool, bat or heavy household object as a deadly weapon.

The analysis is fact-specific. A defense may examine the object’s condition and location, the distance between the parties, witness vantage points and whether the method described in the indictment matches the evidence.

Penalties for Family Violence Aggravated Assault

O.C.G.A. § 16-5-21(i) generally provides a sentence of three to twenty years for qualifying family violence aggravated assault. The provision covers specified relationships such as past or present spouses, parents of the same child, parents and children and certain current or former household members.

The case may also result in restrictive bond conditions, no-contact orders and related protective-order proceedings.

When Can Deadly Force Be Self-Defense?

Georgia law distinguishes ordinary force from force intended or likely to cause death or great bodily injury. Under O.C.G.A. § 16-3-21, deadly force is generally justified only when a person reasonably believes it is necessary to prevent:

• Death

• Great bodily injury to the accused or another person

• The commission of a forcible felony

The threat must be imminent. Prior abuse or threats can provide important context, but deadly force generally cannot be used as punishment after the immediate danger has ended.

A self-defense investigation may ask:

• Who introduced or reached for the weapon?

• Was the other person armed or attempting to take a weapon?

• Was the weapon displayed, pointed, fired or used to strike?

• Did the accused stop when the threat stopped?

• Were children or other people in immediate danger?

• Do recordings, injuries and physical evidence match either account?

Georgia’s no-duty-to-retreat law applies when a person is otherwise justified. It does not eliminate the requirements of imminence, reasonableness and proportionality.

Evidence That May Shape the Case

Important evidence may include 911 calls, body-camera footage, home-security video, photographs, medical records, firearm condition, ballistics, shell-casing locations, property damage and messages exchanged before or after the incident. Evidence of prior family violence, dating violence or child abuse by the alleged victim may also be relevant to the accused’s perception of immediate danger.

Pretrial Immunity

O.C.G.A. § 16-3-24.2 may provide immunity from prosecution for justified force. The accused generally must prove justification by a preponderance of the evidence at the immunity hearing. A denial does not automatically prevent the accused from raising self-defense before a jury.

Frequently Asked Questions

Does someone have to be injured?

Not always. The charge may be based on an attempted injury or conduct placing someone in reasonable apprehension of immediate violent injury.

Can an ordinary object be treated as a deadly weapon?

Yes. The answer may depend on how the object was used and whether that use was likely to cause serious bodily injury.

What is the potential sentence?

Qualifying family violence aggravated assault generally carries three to twenty years in prison.

Speak With an Atlanta Criminal Defense Attorney

If you face a family violence aggravated assault charge involving a firearm, knife or other alleged weapon, Contact Serge Jerome Jr. at The Jerome Law Firm PA (404) 720-8141.

This article provides general information about Georgia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different.