707-712.5 Assault against a law enforcement officer in the first degree. (1) A person commits the offense of assault against a law enforcement officer in the first degree if the person:

(a) Intentionally or knowingly causes bodily injury to a law enforcement officer who is engaged in the performance of duty; or

(b) Recklessly or negligently causes, with a dangerous instrument, bodily injury to a law enforcement officer who is engaged in the performance of duty.

(2) Assault of a law enforcement officer in the first degree is a class C felony. The court shall, at a minimum, sentence the person who has been convicted of this offense to:

(a) An indeterminate term of imprisonment of five years, pursuant to section 706-660; or

(b) Five years probation, with conditions to include a term of imprisonment of not less than thirty days without possibility of suspension of sentence. [L 1990, c 192, 1; am L 2003, c 66, 2]

 

Cross References

 

Definition of law enforcement officer, see 701-118.

 

COMMENTARY ON 707-712.5

 

Act 192, Session Laws 1990, added this section in an attempt to afford a police officer some additional measure of protection. The legislature noted that this measure may not have any deterrent effect because assaults on police officers usually happen in the heat of the moment. House Standing Committee Report No. 1203-90.

Act 66, Session Laws 2003, amended this section to upgrade assault against a police officer to a class C felony and expand its scope to cover other law enforcement officers. Under current law, threatening a police officer is a felony, although actual assault of a police officer is a misdemeanor. It is a class C felony to assault correctional workers or educational workers who are engaged in the performance of their duties. The legislative intent was to deter the rising number of assaults committed against correctional officers each year, and to give educational workers added protection. The legislature believed that law enforcement officers deserved the same protection and deterrent methods as these other workers. The legislature expressed the intent that the term "law enforcement officer" includes, but is not limited to, police officers, sheriffs, sheriff deputies, department of land and natural resources enforcement officers, and investigators with the department of the attorney general. Senate Standing Committee Report No. 979.

 

Case Notes

 

Statutory references in oral charge did not cure the omission of essential elements in resisting arrest and assault against a police officer counts of the charge; supreme court unable to reasonably construe oral charge as charging assault against a police officer. 77 H. 309, 884 P.2d 372 (1994).

As this section does not specifically state that the convicted "shall serve" the minimum sentence of thirty days imprisonment, nor explicitly limit the court's ability to suspend part of the minimum sentence, trial court did not err in suspending twenty-five days of the minimum sentence, placing defendant on probation and ordering community service. 99 H. 118, 53 P.3d 257 (2002).

 

 

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