Guest post: Assault

By: Guest
April 11 2017

When Does Misdemeanor Assault Rise to the Level of a Felony?

While assault laws may seem simple and easy to understand on the surface, it’s actually a complex area of law. Every state has its own laws on the books and those laws define the various offenses that constitute assault.  They also delineate what factors could elevate a misdemeanor charge to a felony.

To start, let’s take a look at misdemeanor assault. Then we’ll look into what circumstances could raise what would otherwise be a misdemeanor to the felony level.  Then we’ll take a look at various types of assault.

Dictionary illustration in which the assailant makes physical contact.

Understanding Misdemeanor Assault

You may also hear this referred to as simple assault. In most states, a simple assault is classified as an act that puts another person in fear of bodily harm or causes actual bodily harm. Touching someone with the intent to cause physical injury or in a way that actually causes physical injury could lead to a conviction on simple assault charges.

Depending on the severity of physical injury, a conviction could include penalties of probation, fines and up to one year in prison.

What is Felony Assault?

Felony assault is most commonly known throughout the nation as aggravated assault. This is a very serious charge that can lead to several years in prison upon conviction. Prosecutors will typically charge an offender with this crime if they suspect “aggravating circumstances” were involved. These circumstances include, but are not limited to the following:


  • Serious superficial physical injury like severe bruising or lacerations
  • The offense is committed with the use of a deadly weapon
  • Disfigurement or fractured bones
  • The victim of the assault is restrained
  • The assault takes place in someone’s private home
  • Any assault committed on a police officer, prison guard, prosecutor, teacher or medical professional
  • When an adult assaults someone underaged


Even a first time felony aggravated assault conviction can lead to a prison term that can carry with it several years in prison. The judge will determine the sentence based on someone’s social and criminal history and the circumstances of the crime.

Threats can be crimes in many states

The consequences can become much more severe on a second aggravated assault conviction with a prison term of additional years. A third conviction could land someone in prison for many years or even for life in some states.


Threatening someone with bodily harm is considered misdemeanor assault in some states. However states like Arizona have laws on the books that will elevate threatening or intimidating to a felony level if gang activity is involved.

Domestic Violence

Just like other forms of assault, domestic violence charges are classified as misdemeanor or felony offenses. However, in many states, even misdemeanor offenses are prosecuted more aggressively. A first offense

may include community service, jail time, fines and court-ordered behavioral treatment. A second misdemeanor offense could, and likely would, result in additional probation or jail time.  A second or subsequent offense may even elevate a misdemeanor to a felony.

Aggravated domestic violence is typically a felony charge. Domestic violence that results in bodily injury or if a weapon is involved in the assault can also be grounds for a felony charge.

domestic assault
Domestic Violence is typically punished harshly

Hate Crimes

An assault or threat of any kind will rise to the level of a felony if authorities believe the offense was motivated by hate or bias. Hate crimes target specific groups with what are known as “immutable characteristics.”  Immutable characteristics include race, gender, religion, sexual orientation and like categories.

What to Do When Your Misdemeanor Charge Is Elevated to a Felony

If you face felony assault charges or the prospect of having a misdemeanor charge upgraded to a felony, you need to seek the guidance of a defense attorney who can help you weigh your legal options. Felony convictions will have life-altering consequences, including prison time, fines and a permanent criminal record.

A skilled assault lawyer can help you understand your rights and work to have your charges reduced, dismissed or acquitted at trial. Without the guidance of an attorney, your odds of being hit with a harsh sentence will increase significantly.


Guest post by Amanda Burns

Edited for grammar and syntax by Jay Leiderman.  Content not changed.

21 thoughts on “Guest post: Assault

  1. (j) Assaults a judicial officer, court-related employee, county clerk, or county clerk’s employee, while that person is performing his or her official duties at the time of the assault or as a result of that person’s employment within the judicial system. For purposes of this subsection, “court-related employee” includes bailiffs, court reporters, judicial assistants, court managers, court managers’ employees, and any other employee, regardless of title, who is engaged in equivalent functions; or
    (k) Assaults a person located in a courtroom, jury room, judge’s chamber, or any waiting area or corridor immediately adjacent to a courtroom, jury room, or judge’s chamber. This section shall apply only: (i) During the times when a courtroom, jury room, or judge’s chamber is being used for judicial purposes during court proceedings; and (ii) if signage was posted in compliance with RCW 2.28.200 at the time of the assault.
    (2) Assault in the third degree is a class C felony.

  2. (g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault; or
    (h) Assaults a peace officer with a projectile stun gun; or
    (i) Assaults a nurse, physician, or health care provider who was performing his or her nursing or health care duties at the time of the assault. For purposes of this subsection: “Nurse” means a person licensed under chapter 18.79 RCW; “physician” means a person licensed under chapter 18.57 or 18.71 RCW; and “health care provider” means a person certified under chapter 18.71 or 18.73 RCW who performs emergency medical services or a person regulated under Title 18 RCW and employed by, or contracting with, a hospital licensed under chapter 70.41 RCW; or

  3. (d) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm; or
    (e) Assaults a firefighter or other employee of a fire department, county fire marshal’s office, county fire prevention bureau, or fire protection district who was performing his or her official duties at the time of the assault; or
    (f) With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering; or

  4. (b) Assaults a person employed as a transit operator or driver, the immediate supervisor of a transit operator or driver, a mechanic, or a security officer, by a public or private transit company or a contracted transit service provider, while that person is performing his or her official duties at the time of the assault; or
    (c) Assaults a school bus driver, the immediate supervisor of a driver, a mechanic, or a security officer, employed by a school district transportation service or a private company under contract for transportation services with a school district, while the person is performing his or her official duties at the time of the assault; or

  5. RCW 9a.36.031
    Assault in the third degree.
    (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:
    (a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself, herself, or another person, assaults another; or

  6. The case of People v. Irvin, 43 Cal. App. 4th 1063 is apposite. In that case the sentencing judge said even more to distinguish that time interval necessary to reflect and that was rejected as insufficient in Irvin. The established case law mandates a reversal of the consecutive counts in this case:

    In this case [Irvin], in sentencing the defendant, the court stated in pertinent part:

    “The reason for the consecutive sentences, that is those that are going to be run consecutive, would be that these are crimes which fall within the dictates of 667.6. In particular, the offenses of 289 and 288a, that code section allows for a fully consecutive sentence. The jury having found that there were separate counts of each particular offense committed, it then is incumbent upon me to determine whether or not the crimes against the victim were committed on separate occasions. I have to consider whether in the commission of any of these offenses the defendant had a reasonable opportunity to reflect upon his actions, upon such reflection, then resume the sexually assaultive behavior that he engaged in.

  7. “I am making the determination that, based upon the facts of this case, again after hearing the prelim and after hearing the jury trial, that there was opportunity for a reflection on behalf of the defendant. This went over a duration of time these various acts were committed, then there was a brief interval. As Miss Frazier indicated, he would stop, have a brief conversation, catch his breath, go back and commit other acts. There was some moving around within the house when these acts were committed. In other words, at [*1070] one point in time several of the acts were in one room, they went on into another room when the acts continued there.

    “Accordingly, I find that under those dictates that a consecutive sentence would be in order.”

  8. This statement by the court does not provide a sufficient analysis of the facts to allow this court to determine why it concluded all acts must have occurred on “separate occasions” within the meaning of subdivision (d).

    People v. Irvin, 43 Cal. App. 4th 1063, 1069-1070.

    In People v. Pena (1992) 7 Cal.App.4th 1294, review denied, “Ms. B. was unlocking the door of her home when appellant approached her from behind carrying a cup. He said something about “water” and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, appellant got off of her, twisted her by the legs violently, and orally copulated her.” 7 Cal.App.4th at 1299. This was insufficient to trigger full term consecutive sentences under subdivision (d) because: The holding in [the cases they rely upon] strongly suggests a change in positions, alone, is insufficient to provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds.” 7 Cal.App.4th at 1316.

  9. Rape – Assault and battery doesn’t get anymore personal than rape. Even when the person survives the violent sexual attack, they are left with a lifetime of emotional scars.

    Example case: Mike Tyson was one of the most fearsome heavyweight boxers in history. But that all came crashing down when he was charged with raping a beauty pageant contestant. Tyson was given a sentence of 10 years, six in prison and four on probation, but was released in March 1995 after serving just three years.

  10. Domestic violence
    According to the U.S. Department of Justice Bureau of Justice Statistics, nearly two in three female victims of violence knew their attacker, often even related to them. And almost six times as many women are victimized by a boyfriend or husband (18 percent) as those victimized by a stranger (3 percent).

    Example case: Maybe the most famous domestic violence case in the last couple of years involved R&B singers and couple Chris Brown and Rihanna. Brown assaulted Rihanna in an argument February 8, 2009.

    Brown was convicted of assault and battery on June 22, and was sentenced to five years of probation and 180 days of community service. As part of his sentence, Brown was required to complete a 12-month domestic violence counseling program.

  11. Example case: Two Belleville, Missouri high school students were charged with felony counts of aggravated battery September 18, 2009. The charges were brought for the beating of a 17-year-old on a school bus. This case grabbed national headlines for the alleged race motive of the attacks (the attackers were black, the victim white.)

  12. Fights are more common when you’re in high school. These days, kids need to understand that their tempers are going to bring on consequences heavier than being grounded by mom and dad. Take the following 2009 case for example.

  13. Fights
    They are fairly common. Often, fights result in nothing more than a few cuts and bruises. Sometimes it’s because nobody pursues legal action, and sometimes it’s because legal action is unrealistic. When two parties enter into a fight voluntarily, there is little chance that either person could hire a personal injury lawyer and win monetary damages. But, sometimes fights are very prosecutable as assault and battery charges.

  14. Example case: In 2007, the Ninth U.S. Circuit Court of Appeals ruled that intentionally spitting on another person qualifies as “simple assault.” The court unanimously affirmed a Washington DC man’s conviction under 18 U.S.C. Sec. 113(a)(5) for spitting in another man’s face on the grounds of a Veterans Administration hospital.

    Jeffrey Paul Lewellyn was found guilty of committing simple assault and was sentenced to two years of probation, 50 hours of community service and a $10 special assessment.

  15. Spitting
    Compared to other examples of assault and battery, spitting is a minor act. But it can still be a criminal act.

  16. The sentencing rules get more complicated when the act of assault and battery is more severe. Here are some examples of assault and battery, and n real-life case of each:

  17. Sticking with California as an example, assault is punishable by up to $1,000 in fines and six months in prison for crimes committed against private citizens. When the crime involves employees of the government (police, fireman, animal control officers, etc.) the fine limit is bumped up to $2,000 and the sentence to a one-year maximum.

  18. While there may be some variances, state penal codes are generally similar in regards to defining what assault and battery is. For example, the California Penal Code, Section 240 states that an assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Section 242 states defines battery, which is said to be “any willful and unlawful use of force or violence upon the person of another.

  19. Battery is when someone is actually physically touched. A battery may include any willful or intentional violent, painful, harmful, or offensive touching against the accuser’s will. But, the battery does not have to be the result of direct contact, as long as the person causes the battery. Similar to assault, an act does not have to include physical harm to be considered battery. At first, that may seem puzzling, but take spitting as an example.

  20. There does not need to be physical contact for an assault to occur. In fact, there may only need to be a reasonable perception of harm by the plaintiff to be considered an unlawful act, even if harm was not even a possibility. A good example of assault without actual bodily injury is when someone uses a realistic toy gun to threaten someone. If the toy gun is realistic enough, it is classified as an assault and is prosecutable

  21. Having an attorney that specializes in your field of need is critical. This can alter the outcome of your case so it pays to hire the right attorney from the start. The relationships and reputations that these attorneys have with other attorneys and the courts are extremely valuable.

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