Lisa Nowak's attorneys say it isn't applicable because the pepper spray she allegedly wielded isn't a dangerous weapon and didn't touch her alleged victim.
Nowak was not expected in court in Orlando, Fla., for a hearing Wednesday.
Authorities allege she drove from Houston to Orlando in February 2007 to confront Colleen Shipman, who had begun dating Nowak's love interest, former space shuttle pilot Bill Oefelein.
The trial is set for Dec. 7. The other charges against Nowak are attempted kidnapping and battery with assault.