Assault with a deadly weapon is a crime in which you attack or threaten someone with a dangerous weapon or object. A prosecutor must prove the following two elements to successfully convict you of this offense:
- you assaulted someone, and
- you did so using a deadly weapon.
In general, you commit the offense of assault if you attempt or threaten to injure someone.
Most states say that a “deadly weapon” is an object that can kill someone or cause great bodily injury. Examples include obvious dangerous weapons like guns and knives.
But note that certain other objects, like rocks, glass bottles, and even body parts, can be deadly weapons as well. A judge or jury typically makes the determination by analyzing all of the facts in a given case.
Assault with a deadly weapon is often referred to as “ADW.”
1. How do states define “assault with a deadly weapon”?
Assault with a deadly weapon is considered an aggravated form of assault in most jurisdictions. You commit the offense if you:
- assault someone, or attempt to harm a person, and
- do so with the use of a deadly weapon.1
Common examples of ADW include:
- trying to stab someone with a knife,
- swinging a baseball bat at someone in a fight,
- holding a loaded gun at a person,
- threatening to drive a car over a person, and
- swinging a broken beer bottle at a “victim’s” throat.
Questions in ADW cases often arise as to the meaning of:
- assault, and
- deadly weapon.
2. What is the definition of “assault”?
You are generally guilty of assault if you:
- unlawfully attempt to use physical force against a person, or
- intentionally place an alleged “victim” in reasonable apprehension of great bodily harm.2
Note that a charge of assault does not require that you actually:
- touch or strike a person, or
- cause bodily harm to the “victim.”3
Assault is usually compared and contrasted with the crime of battery. Battery is the crime where you actually touch someone in an offensive manner, and it causes some type of harm.4
Assault, then, is perhaps best thought of as an attempted battery, while a battery is like a completed assault.
3. How does the law define “deadly weapon”?
In the context of an assault with a deadly weapon charge, most states say that a “deadly weapon” is any type of weapon or object that is capable of producing death or great bodily injury.5
4. What are “deadly weapons per se”?
Some states say that certain weapons are “per se” or by themselves, deadly weapons. This means that a prosecutor does not have to introduce any evidence to prove that the weapon is in fact deadly.
Common examples include:
- guns,
- knives, and
- brass or iron knuckles.
States that recognize deadly weapons per se often identify them in a specific statute or criminal law.6
5. Does the law consider other weapons as “deadly”?
It may. If a weapon is not per se deadly, a judge or jury can label it as deadly by analyzing the facts of a case.
For example, a golf club is not a deadly weapon on its face. But a judge or jury may find it deadly if a defendant swung it at a “victim” in a fit of rage.
Some other examples of not so obvious deadly weapons include:
- an unloaded gun (if used to club or hit someone),
- a bottle (if used to attack someone),
- a pencil (if used to stab someone),
- a floor (if the defendant slammed a “victim’s” head on it),7
- a dog that will attack humans on command, and
- a car (used in an attempt to run someone down).8
6. Can body parts be deadly weapons?
Some states have ruled that a person’s body parts can indeed be deadly weapons.9
Examples of body parts that have been found to be deadly weapons include:
- hands,
- feet, and
- teeth.
In states that do consider body parts as weapons, a judge or jury will determine if they are deadly by analyzing the facts of the case. Some factors that a judge or jury may consider are:
- the level of forced used,
- the number of times you attempted to kick or hit the “victim,” and
- the extent of the “victim’s” injuries.10
Note, though, that while some states have ruled that body parts can rise to the level of deadly weapons, other states have said that “weapons” are limited to objects external to the body.11
Additional reading
For more in-depth information, refer to these scholarly articles:
- Commitment – Evidence of Character – Assault with Deadly Weapon – Impeachment of Witness – Criminal Law Magazine and Report.
- Criminal Law: Assault with Unloaded Gun – Criminal Law Review.
- Human Immunodeficiency Virus as a Deadly Weapon: Proposing a California Assault Law That Recognizes HIV as a Deadly Weapon – Thomas Jefferson Law Review.
- Assault-Related Conduct under the Proposed California Criminal Code – Hastings Law Journal.
- People v. Chance: Analyzing the Assault Statute’s “Present Ability” Requirement – Berkeley Journal of Criminal Law.
Legal References:
- See, for example, Florida Statutes 784.021 (2021). See also New York Penal Code Section 120.05.
- See Black’s Law Dictionary, Sixth Edition – “Assault.” See also Nevada Revised Statutes 200.471(2)(b).
- See Black’s Law Dictionary, Sixth Edition – “Assault.” See also State v. Eastmond (1996) 129 Wn.2d 497.
- Black’s Law Dictionary, Sixth Edition – “Battery.” See also Mason v. Cohn (1981) 108 Misc. 2d 674.
- Black’s Law Dictionary, Sixth Edition – “Deadly weapon.” See also Model Penal Code Article 210; and, California law, People v. Rodriguez (1999) 20 Cal.4th 1.
- See, for example, Neb. Rev. Statute 28-1205.
- See Stanul v. State (1994) 870 S.W.2d 329.
- See People v. Aguilar (1997) 16 Cal.4th 1023.
- See, for example, People v. Ross (1992) 831 P.2d 1310.
- See same.
- See, for example, People v. Aguilar (1997), supra.
