An assault by a dangerous weapon may be committed in either of two ways.  It is either an attempted battery or an immediately

threatened battery (battery is the harmful or offensive, unpermitted touching of another person). In either case, the defendant has committed the assault by using a dangerous weapon.

In short, as our Massachusetts criminal defense attorney details, assault with a dangerous weapon has one element in addition to those required for simple assault: that the assault was done by means of a dangerous weapon.

Type 1: An Attempted but Incomplete Battery by Using a Dangerous Weapon

The first type of assault by dangerous weapon occurs when the defendant intended to commit a battery by using a dangerous weapon but was not successful.

Assault Weapons Defense Attorney

To be found guilty of this form of assault, the Commonwealth must prove beyond a reasonable doubt that the defendant:

1. Intended to commit a battery (the unpermitted touching);

2. Took some type of overt action towards accomplishing that intent;

3. Came reasonably close to committing the battery; and

4. That the attempted battery was done by using a dangerous weapon.

A good example of this would be if someone held a knife and, trying to stab the other person, completely missed. However, with Type 1 assault by dangerous weapon, the Commonwealth doesn't need to show that the alleged victim was fearful of the attempted battery or was even aware of it in the first place. These types of cases, like any crime of attempt, require proof of both the specific intent to cause harm and an overt act towards causing that harm. Mere preparation is not enough. 

Type 2: A Threatened Battery by Using a Dangerous Weapon

The second type of assault occurs when the defendant threatens to commit an unpermitted, harmful or offensive touching by using a dangerous weapon. 

To prove this type of assault, the Commonwealth must prove, beyond a reasonable doubt, that the defendant: 

1. Intended to put the alleged victim in fear of imminent battery by using a dangerous weapon;

2. Engaged in some conduct towards the alleged victim; and

3. The alleged victim reasonably thought an unpermitted touching was imminent. 

Using the knife example, if the defendant stood close to the alleged victim and waived the knife in an overt and menacing way, that would be a threatened battery (and the knife, of course, would be considered the dangerous weapon). For a threatened battery by dangerous weapon, the defendant must intend to cause fear. However, it's not necessary that the victim experienced any fear.

Can I be arrested For Assault by Dangerous Weapon? 

Yes, because assault by dangerous weapon is a felony, officers may conduct a warrantless arrest if there is probable cause to determine that a crime has been committed.  

What is a dangerous weapon? 

There are two types of dangerous weapons: (1) things that by their nature cause serious injury or death or (2) things that when used in a certain way can cause serious injury or death.

Things that are automatically considered dangerous (category 1) are, for example, firearms, knives, and brass knuckles.
Things that are considered “dangerous use” (category 2) are generally items that become weapons when used in a dangerous way. A plate, lit cigarette, or even a stapler can be considered a dangerous weapon in the right context.

Am I going to jail for Assault by Dangerous Weapon?

Assault by dangerous weapon is a felony and carries potential jail time. The maximum penalty for a conviction is State Prison not more than 5 years or House of Correction not more than 2.5 years, or a fine not more than $1,000.

Nate Amendola
Massachusetts criminal defense attorney, helping resolve OUI, domestic violence, drug and criminal charges