The crime of assault with caustic chemicals (Penal Code § 244), as the injury therefrom suggests, is a serious crime under Penal Code § 1192.7(c). This is most commonly seen in the context of someone throwing acid from a cup onto the face of another person or toward their eyes.
To be criminally liable for a violation of section 244, the prosecution must prove that defendant willfully and maliciously placed upon or threw, or caused to be placed upon or thrown, upon the body of another, any vitriol (sulfuric acid), corrosive acid, flammable substance, or caustic chemical of any nature with intent to injure the flesh or disfigure the body of the victim. The substance could be a chemical cleaner used to polish metal, for example. The prosecutor also must show that defendant did not act in self defense.
In other words, the crime is actually a battery and not just an assault, as a assault legally only involves placing another person in fear or anxiety of an impending battery. With a violation of Penal Code § 244, there is actual contact of the chemical on the victim, so it is a battery in fact.
The Gist of this Article: Assault with caustic chemicals is distinguishable from mayhem in that it only involves the use of one method of disfiguring or permanently injuring another, but it, like mayhem, a serious crime and requires that defendant not act in self-defense. Assault with caustic chemicals is really a battery, not just an assault. Assault with caustic chemicals has less punishment than mayhem.
As used in the definition of “flammable substance” in 244, this can be gasoline, petroleum products or flammable liquid with a flashpoint of 150 degrees Fahrenheit or less. The lower the flashpoint, the most easily it can ignite and burn with a flame on contact.
The crime is punishable by state prison for a term of two, three or four years, as well as a fine of up to $10,000 or both. Formal probation is possible, depending upon the facts of the case and defendant’s prior criminal history. Restitution to the victim for medical expenses and lost earnings would be a part of probation or part of the sentence, as well as a stay away order from the victim, anger management or individual counseling and community labor or community service as well.
Self-defense is often raised as a defense, as well as defense of others or that defendant had no intent to harm or permanently disfigure the other person. In other words, if defendant had no intent to harm or permanently disfigure the other person, it was an accident that some of the caustic substance was spilled or landed on the victim.
When self-defense is asserted, defendant must prove that he or she had a reasonable belief of imminent death, serious injury or unlawful touching to himself or a close family member such that throwing a caustic chemical was reasonable under the circumstances to prevent the imminent harm to himself or a close family member. The use of the caustic chemical must not have exceeded the scope of the danger or injury to be prevented by the imminent danger.
When our office has represented someone on this charge, we often try to plea bargain the charge down to simple battery, Penal Code § 242, because the penalty for 242 is less and it is not a serious felony. Penal Code § 242 is also a “wobbler,” meaning it can be alleged as a felony or a misdemeanor and when alleged as a misdemeanor, the sentence is up to six months in county jail and a fine up to $2,000.
We could also try to negotiate the offense to assault with a deadly weapon, Penal Code § 245(a)(1), which is a wobbler as well, but when charged as a misdemeanor, the penalty is up to one year in county jail. As a felony, the punishment is two, three or four years in state prison.
This crime is distinguishable from use or possession of tear gas, i.e., Mace ejected from a container as an aerosol spray, at Penal Code § 22810 for any purpose other than self-defense. A violation of 22810 can be charged as a misdemeanor or a felony, with up to three years in state prison as a possible sentence (to be served in county jail). It is important to know that with 22810, a person who has a prior criminal conviction for any crime involving assault (i.e., § 240 or 245(a)), any person under age 18 or any person determined to be a narcotic addict, may not possess “tear gas,” even for self defense.
For more information about the issues with Penal Code § 244, please click on the following articles: