§ 13-1204; Version 2 — Aggravated assault; classification; definitions

(L25, ch. 172, sec. 2; Caution: 1998 Prop 105 applies)

A. Beginning from and after December 31, 2032, a person commits aggravated assault if the person commits assault as prescribed by section 13-1203 under any of the following circumstances:

1. If the person causes serious physical injury to another.

2. If the person uses a deadly weapon or dangerous instrument.

3. If the person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part.

4. If the person commits the assault while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired.

5. If the person commits the assault after entering the private home of another with the intent to commit the assault.

6. If the person is eighteen years of age or older and commits the assault on a minor under fifteen years of age.

7. If the person commits assault as prescribed by section 13-1203, subsection A, paragraph 1 or 3 and the person is in violation of an order of protection issued against the person pursuant to section 13-3602 or 13-3624.

8. If the person commits the assault knowing or having reason to know that the victim is any of the following:

(a) A peace officer or a person summoned and directed by the officer.

(b) A constable or a person summoned and directed by the constable while engaged in the execution of any official duties or if the assault results from the execution of the constable's official duties.

(c) A firefighter, fire investigator, fire inspector, emergency medical technician or paramedic engaged in the execution of any official duties or a person summoned and directed by such individual while engaged in the execution of any official duties or if the assault results from the execution of the official duties of the firefighter, fire investigator, fire inspector, emergency medical technician or paramedic.

(d) A teacher or other person employed by any school and the teacher or other employee is on the grounds of a school or grounds adjacent to the school or is in any part of a building or vehicle used for school purposes, any teacher or school nurse visiting a private home in the course of the teacher's or nurse's professional duties or any teacher engaged in any authorized and organized classroom activity held on other than school grounds.

(e) A health care worker while engaged in the health care worker's work duties or a health care practitioner who is certified or licensed pursuant to title 32, chapter 13, 14, 15, 17 or 25, or a person summoned and directed by the licensed health care practitioner while engaged in the person's professional duties. This subdivision does not apply if the person who commits the assault does not have the ability to form the culpable mental state because of a mental disability, developmental disability or cognitive disability or because the person is seriously mentally ill, as defined in section 36-550.

(f) A prosecutor while engaged in the execution of any official duties or if the assault results from the execution of the prosecutor's official duties.

(g) A code enforcement officer as defined in section 39-123 while engaged in the execution of any official duties or if the assault results from the execution of the code enforcement officer's official duties.

(h) A state or municipal park ranger while engaged in the execution of any official duties or if the assault results from the execution of the park ranger's official duties.

(i) A public defender while engaged in the execution of any official duties or if the assault results from the execution of the public defender's official duties.

(j) A judicial officer while engaged in the execution of any official duties or if the assault results from the execution of the judicial officer's official duties.

(k) An employee of a law enforcement agency, other than a peace officer, while engaged in the execution of any official duties.

(l) A public transit employee who performs duties on and off a vehicle while engaged in transferring members of the community to and from destinations in a bus, van or shuttle.

(m) An airport employee who interacts with the public while engaged in the airport employee's work duties.

(n) A railway worker while engaged in operating a train, light rail or passenger rail or performing track maintenance.

9. If the person knowingly takes or attempts to exercise control over any of the following:

(a) A peace officer's or other officer's firearm and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection.

(b) Any weapon other than a firearm that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection.

(c) Any implement that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection. For the purposes of this subdivision, "implement" means an object that is designed for or that is capable of restraining or injuring an individual. Implement does not include handcuffs.

10. If the person meets both of the following conditions:

(a) Is imprisoned or otherwise subject to the custody of any of the following:

(i) The state department of corrections.

(ii) The department of juvenile corrections.

(iii) A law enforcement agency.

(iv) A county or city jail or an adult or juvenile detention facility of a city or county.

(v) Any other entity that is contracting with the state department of corrections, the department of juvenile corrections, a law enforcement agency, another state, any private correctional facility, a county, a city or the federal bureau of prisons or other federal agency that has responsibility for sentenced or unsentenced prisoners.

(b) Commits an assault knowing or having reason to know that the victim is acting in an official capacity as an employee of any of the entities listed in subdivision (a) of this paragraph.

11. If the person uses a simulated deadly weapon.

12. If the person is aided by two or more accomplices aid in committing the assault, the assault is directed at a single person and the assault results in physical injury.

B. Beginning from and after December 31, 2032, a person commits aggravated assault if the person commits assault by either intentionally, knowingly or recklessly causing any physical injury to another person, intentionally placing another person in reasonable apprehension of imminent physical injury or knowingly touching another person with the intent to injure the person, and both of the following occur:

1. The person intentionally or knowingly impedes the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument.

2. Any of the circumstances exists that are set forth in section 13-3601, subsection A, paragraph 1, 2, 3, 4, 5 or 6.

C. A person who is convicted of intentionally or knowingly committing aggravated assault on a peace officer pursuant to subsection A, paragraph 1 or 2 of this section shall be sentenced to imprisonment for not less than the presumptive sentence authorized under chapter 7 of this title and is not eligible for suspension of sentence, commutation or release on any basis until the sentence imposed is served.

D. If a person is convicted of committing aggravated assault on a peace officer pursuant to this section and the trier of fact determines that section 13-701, subsection D, paragraph 17 applies, the person shall be sentenced to two years more than would otherwise be imposed for the offense. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under this section or chapter 7 of this title. The person is not eligible for suspension of sentence, commutation or release from confinement on any basis, except as specifically authorized by section 31-233, subsection A or B until the sentence imposed is served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

E. It is not a defense to a prosecution for assaulting a peace officer or a mitigating circumstance that the peace officer was not on duty or engaged in the execution of any official duties.

F. Except pursuant to subsections G, H and I of this section, aggravated assault pursuant to subsection A, paragraph 1 or 2, paragraph 9, subdivision (a) or paragraph 11 of this section is a class 3 felony except if the aggravated assault is a violation of subsection A, paragraph 1 or 2 of this section and the victim is under fifteen years of age it is a class 2 felony punishable pursuant to section 13-705. Aggravated assault pursuant to subsection A, paragraph 3 or 12 or subsection B of this section is a class 4 felony. Aggravated assault pursuant to subsection A, paragraph 9, subdivision (b) or paragraph 10 of this section is a class 5 felony. Aggravated assault pursuant to subsection A, paragraph 4, 5, 6, 7 or 8 or paragraph 9, subdivision (c) of this section is a class 6 felony.

G. Aggravated assault pursuant to subsection A, paragraph 1 or 2 of this section committed on a peace officer is a class 2 felony. Aggravated assault pursuant to subsection A, paragraph 3 of this section committed on a peace officer is a class 3 felony. Aggravated assault pursuant to subsection A, paragraph 8, subdivision (a) of this section committed on a peace officer is a class 5 felony unless the assault results in any physical injury to the peace officer, in which case it is a class 4 felony.

H. Aggravated assault pursuant to subsection A, paragraph 1 or 2 of this section committed on an employee of a law enforcement agency is a class 2 felony. Aggravated assault pursuant to subsection A, paragraph 3 of this section committed on an employee of a law enforcement agency is a class 3 felony. Aggravated assault pursuant to subsection A, paragraph 8, subdivision (j) of this section committed on an employee of a law enforcement agency is a class 5 felony unless the assault results in any physical injury to the employee, in which case it is a class 4 felony.

I. Aggravated assault pursuant to:

1. Subsection A, paragraph 1 or 2 of this section is a class 2 felony if committed on a prosecutor.

2. Subsection A, paragraph 3 of this section is a class 3 felony if committed on a prosecutor.

3. Subsection A, paragraph 8, subdivision (f) of this section is a class 5 felony if the assault results in physical injury to a prosecutor.

J. For the purposes of this section:

1. "Cognitive disability" has the same meaning prescribed in section 36-551.

2. "Developmental disability" has the same meaning prescribed in section 36-551.

3. "Health care worker" means:

(a) A person who is employed by or contracted to work at a health care institution that is licensed pursuant to title 36.

(b) A person who is employed or contracted to provide health care or related services in a fieldwork setting, including:

(i) Home health care, home-based hospice and home-based social work, unless the worker is employed or contracted by an individual who privately employs, in the individual's residence, the worker to perform covered services for the individual or a family member of the individual.

(ii) Any emergency services and transport, including the services provided by firefighters and emergency responders.

4. "Judicial officer" means a justice of the supreme court, judge, justice of the peace or magistrate or a commissioner or hearing officer of a state, county or municipal court.

5. "Mental disability" means a disabling neurological condition, or brain injury, or involuntary impairment as a result of a medication that is administered by a health care provider or a medical procedure that is performed at a health care treatment site.

6. "Prosecutor" means a county attorney, a municipal prosecutor or the attorney general and includes an assistant or deputy county attorney, municipal prosecutor or attorney general.