Fifth Degree Assault Defense

Assault in the fifth degree is the lowest-graded assault offense in Minnesota, but that does not mean that it is not a serious criminal charge. While most fifth degree assaults are misdemeanor offenses, some crimes involving domestic violence or the use of a weapon may result in gross misdemeanor or even felony charges. Fifth degree assault crimes can carry serious penalties that may include fines and imprisonment if a person is convicted.

If you are under investigation or you were already arrested for an alleged fifth degree assault in Minnesota, do not delay in seeking legal representation. The Law Office of Barry Hogen represents clients charged with assault in communities all over the Minneapolis area.

Our firm will work tirelessly to try and get your criminal charges reduced or dismissed. Call (763) 513-9085 or fill out an online contact form to have our attorney review your case and answer all of your legal questions during a free consultation.

What are the laws?

Minnesota Statute § 609.224(1) establishes that a person commits the misdemeanor offense of fifth degree assault when they:

  • attempt to cause fear of injury or death in another; or
  • intentionally harm or attempt to harm another.

Under Minnesota Statute § 609.224(2)(a) and Minnesota Statute § 609.224(2)(b), an assault in the fifth degree is a gross misdemeanor if it is committed within three years of a previous domestic violence-related conviction, or within 10 years of a previous domestic violence-related conviction against the same victim.

Minnesota Statute § 609.224(4)(a) and Minnesota Statute § 609.224(4)(b) establish that an assault in the fifth degree is a felony if it is committed within three years of the first of two or more domestic-violence related convictions, or within ten years of two or more domestic violence-related convictions against the same victim.

Minnesota Statute § 609.224(3)(a) states that when a person is convicted of fifth degree assault, the court must determine whether the offender owns a firearm or used one during the assault.

What are the penalties?

The possible sentence an alleged offender will receive for a fifth degree assault conviction depends on how the crime has been classified. The statutory maximums in these cases are usually as follows:

  • Misdemeanor — Up to 90 days imprisonment and/or fine of up to $1,000
  • Gross Misdemeanor — Up to one year imprisonment and/or fine of up to $3,000
  • Felony — Up to five years in prison and/or fine of up to $10,000

Some people do not serve their full prison sentences and are instead placed on probation. Individuals in such circumstances must comply with strict court requirements in order to avoid violations of probation that are new criminal offenses.

Misdemeanor, gross misdemeanor, and felony fifth degree assault offenses can all appear on a person’s criminal record and lead to numerous difficulties when a person is seeking employment or housing. Felony offenses also involve the loss of the right to serve on a jury, vote, or possess firearms, explosives, or similar devices.

How We Can Help

When a person is charged with a fifth degree assault crime, they will generally need to prove that either their conduct was justified through an affirmative defense or that the allegations are not true. It can be very difficult to disprove an alleged victim’s claim that they suffered demonstrable bodily harm.

One of the most common affirmative defenses in fifth degree assault cases is self-defense. As the Supreme Court of Minnesota stated in State v. Glowacki, “the concept of reasonableness is a critical part of self-defense” and a jury must find that a defendant “reasonably believed that force was necessary and that the defendant used only the level of force reasonably necessary to prevent the harm feared.” This means that the level of force used to defend yourself must be similar to the level of harm you feared. For example, if a small woman pushed a large man, and the man responded by shooting her, claiming self-defense is unlikely to work.

Another common defense for fifth degree assault is defense of others. This is often used during domestic violence incidents where children are present. The same limits of reasonably necessary force apply to defense of others.

Defense of property is another possible defense for fifth degree assault charges. There are specific limitations to this defense. In Minnesota, you may use force, including lethal force, to defend your home from intruders. You may also use force to retrieve property stolen from your person, such as if you are pickpocketed. However, you may not use force to retrieve disputed property, such as during divorce proceedings.

Consent is another possible defense that may be used against fifth degree assault charges. Consent is most likely to apply in sexual assault cases. This defense can be tricky, because there is rarely demonstrable evidence of consent. Fortunately, however, the burden of proof is always on the prosecution during criminal proceedings, and they must prove the defendant’s guilt beyond a reasonable doubt. That means that if you and your attorney can introduce some doubt as to whether the victim consented or not, this defense may work.

In some cases, an alleged offender could be completely innocent of the alleged crime. It may be possible for a person to be misidentified by an alleged victim, police officer, or other witnesses. In such cases, an alleged offender may have an alibi that proves they were not at the scene of the crime when the alleged assault took place.

Contact a Minneapolis Fifth Degree Assault Defense Attorney Today

Were you arrested or do you believe that you might be under investigation for assault in the fifth degree in Minnesota? The Law Office of Barry Hogen can provide the strongest possible defense against these criminal charges and will work to help you achieve the most desirable possible outcome to your case.

Our firm will work closely with you and make sure that all of your concerns are addressed. You can have our lawyer provide a complete evaluation of your case when you call (763) 513-9085 or contact us online to receive a free consultation.