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Dec 27, 2021

What Is Considered a Deadly Weapon?

In the past, you heard of crimes dealing with “deadly weapons.” While you thought this meant a gun or a knife, it turns out that it’s much more complicated than that.

If you’ve been charged with assault with a deadly weapon, then you’ll need to learn more about the charges you’re facing as well as the accompanying penalties. Then, you can figure out if you’re going to hire an Oakland criminal defense attorney to provide representation for you in your case.

What Is a Deadly Weapon?

By definition, a deadly weapon is a firearm or another object that could be used in a way that could severely injure or cause death to another person. Some examples of non-traditional objects that could be considered deadly weapons include:

  • Kitchen knife
  • Broken bottle
  • Power tool
  • Baseball bat
  • Blunt object
  • Ax
  • Gardening tools
  • Car
  • Dog
  • Brass knuckles

Typically, you’ll hear about the use of a deadly weapon in an assault with a deadly weapon case.

What Is Assault With a Deadly Weapon?

In the state of California, assault with a deadly weapon falls under California Penal Code Section 245, and it is commonly referred to as ADW. Essentially, assault with a deadly weapon means that you hurt someone with an unloaded firearm or another object that could cause great harm. Note that if a loaded firearm was used, you would be charged separately. Utilizing a loaded firearm is a much more serious offense.

Examples of Assault With a Deadly Weapon

You may be wondering: What are some examples of assault with a deadly weapon in California?

Here’s a common scenario: Two men are drinking at a bar, and one of them offends the other. Because they are intoxicated, they are easily triggered. One of them breaks a beer bottle and goes charging at the other one, cutting him in the face. The one who break the beer bottle and assaulted the other man could potentially be charged with assault with a deadly weapon.

In another scenario, two neighbors might be fighting over the noise that one of the neighbors is constantly making. One of them gets fed up and grabs a baseball bat and starts hitting the other neighbor with it, breaking that person’s ribs.

If a person tried to run someone over with their car, sic a vicious dog on another person, beat a person with an unloaded gun, or stabs someone, then all of these could possibly qualify as assault with a deadly weapon.

Prosecuting Assault With a Deadly Weapon

When trying to convict you of assault with a deadly weapon, a prosecutor will need to show that you assaulted someone with a deadly weapon that was not a loaded firearm, you used force, likely resulting in great bodily injury, you acted willfully, and you were not acting in self-defense of yourself or defending someone else.

You don’t have to cause injury to another person to be convicted of assault with a deadly weapon. Even if you just threatened someone with a deadly weapon to intimidate or scare them, you could be charged.

Penalties for Assault With a Deadly Weapon

You could face serious penalties if you’re convicted of assault with a deadly weapon in California. This is known as a wobbler crime, which means it can be prosecuted as a felony or a misdemeanor. It will all depend on the circumstances surrounding your crime.

If you are convicted of a misdemeanor assault with a deadly weapon charge, then you could be sentenced to up to one year in county jail, a fine of up to $1,000, and misdemeanor summary probation. If you get misdemeanor summary probation, you can avoid jail time and instead be subject to supervision under the court. You’d have to obey the law, as well as adhere to other conditions of your probation like paying restitution to a victim for medical expenses from the assault, going to counseling sessions, and performing community service.

If you are convicted of a felony assault with a deadly weapon charge, you could be sentenced to two, three, or four years in a California state prison, have to pay a fine of up to $10,000, and get formal felony probation. With formal felony probation, you may be able to serve part or all of your sentence out of custody but under the supervision of a probation officer who is assigned to your case. Probation could last years and require that you meet regularly with your probation officer, undergo random drug testing, and pay restitution to your victim for medical expenses from the assault.

Defenses for Assault With a Deadly Weapon

The most obvious defense for assault with a deadly weapon is that you were acting in self-defense, or you were trying to defend someone else from being harmed. Your Oakland criminal defense attorney will have to show that you believed you or another person was in imminent danger, and you used the deadly weapon only to defend yourself or that other person. You also didn’t use more force than necessary.

For example, if someone was charging at you with a broken bottle, perhaps you took out a baseball bat to shield yourself from them. You hit them only once to knock them unconscious so they couldn’t try to attack you. But if you hit someone repeatedly with a baseball bat because they were threatening to punch you, then this could be considered excessive force and would likely not hold up as self-defense.

You could also defend yourself by saying that you didn’t intend to cause great bodily harm to the victim. Maybe you accidentally hurt them and weren’t willfully trying to cause any harm.

The “deadly weapon” you used may not have been deadly at all. For example, perhaps you were using a children’s baseball bat, which was made out of plastic, to defend yourself against someone who was trying to assault you. A plastic bat can’t do much harm.

Maybe you had nothing to do with the assault with a deadly weapon crime you’re being accused of. Perhaps you were just a witness to the crime or you weren’t even there when it happened. By using evidence like an alibi that proves you were not at the scene of the crime, you could walk away from these charges without facing any penalties.

Is Assault With a Deadly Weapon a “Strike” Under California Law?

In California, there’s something called the Three Strikes Law. With the Three Strikes rule, which came into effect in the 1990s, you could be punished more harshly if you have prior felony convictions on your record. These are called strikes.

If you’re convicted of felony assault with a deadly weapon, then it’ll be recorded as a strike on your criminal record. Any violent felonies, including murder, kidnapping, arson, carjacking, voluntary manslaughter, oral copulation or sodomy by force, and any felony where a firearm is involved would qualify.

When you get three strikes on your record, you’ll get a prison sentence of 25 years to life. You are also no longer eligible for probation. In certain circumstances, you could get the court to dismiss a prior strike.

Crimes Related to Assault With a Deadly Weapon

There are certain crimes related to assault with a deadly weapon. They include assault, battery, assault with a firearm, brandishing a weapon, attempted murder, and failure to control a dangerous animal.

With assault with a firearm, you don’t have to injure someone with the gun or even fire it at them to be charged with a felony. A firearm could include a machine gun, a semiautomatic firearm, a .50 BMG rifle, or an assault weapon. You could be charged with assault with a firearm if you use your gun to beat somebody up, but not if you point an unloaded gun at someone.

Brandishing a weapon means that you drew or took out a firearm or deadly weapon in someone else’s presence, you did it in an angry or threatening way, or you used the firearm or weapon in a fight, and you didn’t do this out of self-defense.

Assault in California is defined as an intentional attempt to physically harm someone else or engaging in a threatening or menacing act that would cause the other person to think they are about to be attacked. Typically, assault is charged as a misdemeanor. If you’re charged with simple assault, you could be sentenced to up to six months in jail, be required to pay a fine of up to $1,000, and be put on probation for six months.

If you took out an unloaded or loaded firearm during an assault – and you did not legally own this weapon – then you could face further charges. Additionally, if you had the gun and you were at a school, government building, the governor’s mansion, an airport, a public transit facility, or in a public building, then your charges could be more severe. Firearms laws in California also cover stun guns, armor-piercing bullets, silencers, and laser scopes and laser pointers.

If you assaulted a police officer or another public safety first responder who was on the job at the time the assault occurred, you could be hit with misdemeanor charges, which would include a sentence of up to one year in county jail and a fine of up to $2,000. Spitting in a police officer’s face or throwing a rock at a public safety first responder could qualify as assault.

Finding Representation for Assault With a Deadly Weapon

Whether you’re facing assault with a deadly weapon charges or other criminal charges, it’s critical to find the right representation for your case. Seek out an Oakland criminal defense attorney who has experience representing clients in your situation. They should be able to explain your charges to you as well as come up with a defense you believe will be effective. They also shouldn’t pressure you into taking a plea bargain or going to court if you don’t want to. Your attorney should be willing to work with you and ensure that you’re comfortable with what’s happening throughout every aspect of your case.

With experienced representation on your side, you can fight your charges and have the best chance possible of getting them reduced – or perhaps even dropped altogether.

Hiring an Oakland Criminal Defense Attorney

To find an Oakland criminal defense attorney, look for one who has several years of experience dealing with assault with a deadly weapon cases and has excellent case results. Elliot Silver of Silver Law Firm could be the perfect fit for you.

In one case, Elliot’s client was facing his possible third strike and a very likely life sentence. After the client contacted him, Elliot worked hard to advocate for him. In the end, the client received time served, and instead of life behind bars, he went home in four months.

In another case, law enforcement conducted a raid on a marijuana grow house. In addition to the illegal drugs found, the resident inside was also charged with possession of an AK-47. This was an illegal firearm, and he could have received felony time in custody. The client was faced with a dire position, but he made the smart choice to contact attorney Elliot Silver. With such uncompromising legal representation, the man only received misdemeanor penalties and no jail time.

Now, Elliot is prepared to assist you as well to try and secure a favorable outcome for your case. If you’ve been charged with assault with a deadly weapon and need representation, reach out to Oakland criminal defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at He looks forward to helping you with your case.

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