A Fight Over A "Deadly Weapon"

July 19, 2018

By: Brian M. Latuga

Many crimes in Virginia carry additional or enhanced penalties for possessing or using a “deadly weapon” while committing the crime. “Deadly Weapons” are different from just “weapons” for purposes of the law. Simply because some object produced a death doesn’t make it a “deadly” weapon. It depends on how it is used.[1] The courts tend to separate deadly weapons into two types. Ones that are per se (or ‘intrinsically’) “deadly”, and those that are “deadly” because of the manner in which they are used. Per se deadly weapons are fairly obvious: guns, knives, swords, grenades, bazookas, Howitzers, and anything you may recall seeing in The Terminator would probably qualify.

A deadly weapon is defined by Virginia courts as “one which is likely to produce death or great bodily injury from the manner in which it is used, and whether a weapon is to be regarded as deadly often depends more on the manner in which it has been used than on its intrinsic character."[2] Therefore, how the weapon or object is used is quite relevant to the determination of it’s “deadliness”.

This other class of “deadly weapons” includes common objects depending upon the circumstances: a blackjack, metal bars and rods, brass knuckles, rocks, bricks, beer glasses, scissors, an ax, a sledge hammer, a chisel, a screw driver, a blacksmith's tongs, a fence rail, a sidewalk curb, a car, and a pistol, revolver, or a shotgun used as clubs.[3]

If a weapon isn’t of the per se kind, then it will be up to the jury or the judge to decide whether it should be a “deadly weapon”. So, 12 members of the community will decide whether the object held, brandished, carried, or used in a crime will be considered “deadly”. The jurors will see the evidence, listen to the witnesses testify under direct and cross examination, and evaluate the arguments of a skilled lawyer. Those 12 jurors will decide whether the burglary that was committed with a stick the width of a thumb will result in a 5-year sentence, or a minimum 20-year sentence. That’s a courtroom battle worth fighting if you were to ask me.

Some crimes that have enhanced sentencing minimum penalties for a “deadly weapon” include:

  • Burglary (5-years enhanced to 20-years)
  • Breaking and Entering with Intent to Commit Rape, Robbery, Arson, or Murder (5-years enhanced to 20-years)
  • Breaking and Entering with Intent to Commit Larceny, Assault and Battery or other Felony (1-year enhanced to 20-years)
  • Breaking and Entering with Intent to Commit a Misdemeanor (a term of months enhanced to 20-years)

A skilled attorney will seek the best result for your case and assist you with weighing the options of a guilty plea, a negotiated settlement with the government, or a trial by judge or jury. Place your trust in an attorney that knows the law and is willing and able to effectively argue your case and whether a weapon is “deadly” or simply just a “weapon”. The result could cost you or your loved one a significant portion of their life. 


[1] Pannill v. Commonwealth, 185 Va. 244, 254, 38 S.E.2d 457, 462 (1946)
[2] Id. (emphasis added).
[3] Id.