The necessary elements to prove an assault charge can be found in RCW Title 9A.36. However, it should be noted that the actual term “assault” is not defined in the Washington Criminal Code. Courts across Washington use the common law definition of Assault. This very generic definition of Assault is used in all levels of Assault (1, 2, 3, and 4) but felony levels of Assault (1, 2, and 3) will include some additional qualifiers, which increase the severity of the Assault charge.


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Washington Courts define Assault in three different, but equal, ways:

(1) An attempt, with unlawful force, to inflict bodily injury upon another; or
(2) An unlawful touching with criminal intent; or
(3) Putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm.


Keep in mind that these three different definitions of Assault are all the basic definition, the qualifiers that can be added at the discretion of the Prosecutor determine the degree of Assault. The basic definition, without a qualifier (such as “and inflicted great bodily harm”), is going to be, by default, Assault in the Fourth Degree.

Misdemeanor - Assault in the Fourth Degree

The lowest level of Assault is Assault in the Fourth Degree, or Assault 4. Assault 4’s are handled in District and Municipal Courts because they are Gross Misdemeanors. The maximum penalty for an Assault 4 is 364 days in jail and a $5,000 fine.

Misdemeanors are handled much differently than felonies and typically there are more options for how to resolve the case. This is because District Courts and Municipal Courts have a rehabilitative model rather than the punishment model found in Superior Courts (where felonies are handled).

Options in the “lower” courts for a misdemeanor Assault (other than going to trial or pleading guilty), are (1) the “Compromise of Misdemeanor” (only available for certain crimes) and (2) certain Court specific agreements that are much like a contract. These various “contracts” are known as Diversion Agreements, Pre-Trial Diversion Agreements, or Stipulated Orders of Continuance. The benefit to choosing one of these alternatives is that the charge is reduced or, after a designated period of time, the pending charge is dismissed. A Compromise of Misdemeanor, while not a diversion agreement, is also an option if the misdemeanor assault charge is not domestic violence-related. (See our Blog for more on Compromise of Misdemeanor)

With the assistance of the definition above and the four degrees defined by statute below, it is easier to understand the various levels of Assault through qualifiers or special allegations.

Assault in the Fourth Degree

(1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.
(2) Assault in the fourth degree is a gross misdemeanor, except as provided in subsection (3) of this section.
(3) Assault in the fourth degree [while typically a misdemeanor can become a felony if the assault is domestic violence related AND the defendant has certain prior offense convictions that occurred after June 23, 2017]
(4) For purposes of subsection (3) [referencing domestic violence] of this section, family or household members means spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common regardless of whether they have been married or have lived together at any time, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, and persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.


Unless a person has an extensive criminal history or the facts of the immediate case are disturbing, the majority of the misdemeanor assault charges can be resolved through one of the mechanisms mentioned above. Often times, the Courts will require some type of treatment, such as domestic violence treatment or alcohol treatment if alcohol was a contributing factor. Those proactive treatment requirements are often worked into the deal and their satisfactory completion can be a requirement for the case to be ultimately dismissed, if your resolution calls for dismissal.

If one of the resolution options above is unavailable and a defendant decides to enter a plea of guilty to an Assault in the Fourth Degree charge, the District or Municipal Court will sentence the person to the maximum sentence (364 days), and then suspend the amount of time that is to remain hanging over the defendant’s head. So, for example, if the Judge sentences a person to one day, the sentence is actually 364 days with 363 days suspended. This is done in all assault cases where the Judge enters a sentence. It is done to ensure that the defendant will comply with the terms of the sentence (treatment, etc.). If the person does not comply with the Court’s sentence, the Judge can start imposing portions of the sentence that are suspended. Considering there are 364 days available for jail time, it is always best to comply with your conditions!

Felony - All Other Assaults


All other Assaults (3, 2, & 1) are felonies and charged in Superior Court. Keep in mind, the basic Assault definition from above still applies, but certain qualifiers are added that describe the facts, intent, or level of injury, which dictate the charging level of the felony.

Unlike the rehabilitative model of the District Courts, Superior Courts have a punishment model. There is less emphasis on treatment and more resources go toward a defendant’s punishment. That is not to say that there are no rehabilitative programs, but rehabilitation is rarely the focus.


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
(b) Assaults a person employed as a [transit driver or any transit employee]; or
(c) Assaults a person employed as a [school bus driver or any employee related to the operation of a school bus]; or
(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
(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 [basically any health care provider]; or
(j) Assaults [anyone employed in the Courts]; or
(k) Assaults [anyone located in a Court building].
(2) Assault in the third degree is a class C felony.


Assault in the Second Degree


(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
(b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or
(c) Assaults another with a deadly weapon; or
(d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
(e) With intent to commit a felony, assaults another; or
(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or
(g) Assaults another by strangulation or suffocation.
(2)(a) Except as provided in (b) of this subsection, assault in the second degree is a class B felony.
(b) Assault in the second degree with a finding of sexual motivation is a class A felony.


Assault in the First Degree


(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
(b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm.
(2) Assault in the first degree is a class A felony.


Unlike the Assault charges in District Court, felony Assault charges are governed by the Washington State Sentencing Guidelines. The Court is bound by certain “ranges” when sentencing an individual based on the seriousness of the felony and the defendant’s prior felony record. The number of prior felonies makes up what is called a defendant’s offender score.

Under the Sentencing Guidelines, a person with a 0 offender score and a low seriousness level felony assault such as Assault 3, can theoretically do zero days in jail, while a person charged with Assault 1 and a high offender score (and prior “most serious offenses”) can serve out the rest of their life in prison.

Being charged with any level of assault is a terrible experience. Make sure to get a consultation from an experienced lawyer so you know what your options are. Many Courts, especially District and Municipal Courts, will have practices and options that are not known to all attorneys licensed in Washington.  The attorneys at Witt Law Group have been handling Assault cases for nearly two decades and can handle any level of Assault that you may accused of. 


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