§ 28-323 — Domestic assault; penalties

Nebraska § 28-323

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) A person commits the offense of domestic assault in the third degree if he or she:
(a) Intentionally and knowingly causes bodily injury to his or her intimate partner;
(b) Threatens an intimate partner with imminent bodily injury; or
(c) Threatens an intimate partner in a menacing manner.
(2) A person commits the offense of domestic assault in the second degree if he or she intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument.
(3) A person commits the offense of domestic assault in the first degree if he or she intentionally and knowingly causes serious bodily injury to his or her intimate partner.
(4) Violation of subdivision (1)(a) or (b) of this section is a Class I misdemeanor, except that for any subsequent violation of subdivision (1)(a) or (b) of this section, any person so offending is guilty of a Class IIIA felony.
(5) Violation of subdivision (1)(c) of this section is a Class I misdemeanor.
(6) Violation of subsection (2) of this section is a Class IIIA felony, except that for any second or subsequent violation of such subsection, any person so offending is guilty of a Class IIA felony.
(7) Violation of subsection (3) of this section is a Class IIA felony, except that for any second or subsequent violation under such subsection, any person so offending is guilty of a Class II felony.
(8) For purposes of this section, intimate partner means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together at any time; and persons who are or were involved in a dating relationship. For purposes of this subsection, dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.

Legislative History

Source: Laws 2004, LB 613, § 5; Laws 2010, LB507, § 2; Laws 2015, LB605, § 22. Annotations: Multiple counts of third degree domestic assault under this section are not the "same offense" for double jeopardy purposes if a break occurred between the alleged assaults that allowed the defendant to form anew the required criminal intent. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015). The defendant, who was charged with third degree domestic assault, testified that his girlfriend pushed him against a door and prevented him from leaving the residence. He then pushed the girlfriend off of him, causing her to fall and suffer an injury. The defendant was entitled to self-defense instruction, and any conflicting evidence was for the jury to decide. State v. Bedford, 31 Neb. App. 339, 980 N.W.2d 451 (2022). Pursuant to this section, the defendant and the victim were in a dating relationship and the victim was the defendant's "intimate partner," where their relationship began as casual or social, but progressed into a more serious relationship, their families considered them to be dating and each other's girlfriend or boyfriend, and the altercation was precipitated by the victim's concerns that the defendant was cheating on her by dating other girls. State v. Gay, 18 Neb. App. 163, 778 N.W.2d 494 (2009).