Assault – Domestic Violence

In the State of Washington, there are four levels of basic Assault, three levels of Assault of a child, and a separate Assault called Custodial Assault when the victim is staff or a volunteer at a jail, corrections or detention facility. The level of Assault will depend on the seriousness of your charge.

Relationship To The Victim

If your victim is a family member or there is some prior relationship between aggressor and victim (this is very broad under the statute), Domestic Violence may be added as a “tag” to the charge. 

Assault charges with an allegation of domestic violence are cases that absolutely need the attention of a private criminal defense attorney. It will be weeks, if not months, before you speak with a public defender about your case and the No Contact Order remains in effect for this entire time. If you need to have the ability to go back home or co-parent, it is an absolute necessity to hire an experienced criminal defense attorney as soon as possible.

My Partner Does Not Want To Press Charges. Will My Case Be Dismissed?

Under Washington State law, the “State” brings the charges, not the victim. This is the prosecuting authority of a municipality or a county. This governmental authority is the “plaintiff” in the case against a defendant. Stated another way, only the State can bring an Assault charge against a defendant. And the natural consequence of that is also true – only the State can drop the charges. Unfortunately, in the State of Washington, a victim can not drop the charges.

There are Assault charges that can occur regardless of whether physical harm occurred. This is the reason Assault charges can be tricky. The person charged with Assault may have had no intention of putting a person in fear of harm. However, in those cases, the State must prove that this fear is reasonable based on the circumstances.

Self-Defense

If the harm caused was intentional, the accused may assert he was acting in self-defense. The accused may assert self-defense where: 1) the accused reasonably believed he was about to be injured, and 2) the force used in defense was not more than was necessary. Basically, the response is judged based upon a reasonable person standard in the same or similar circumstances.

Time Is Critical

Time matters when it comes to an Assault charge. In past cases, we have been able to collect video evidence or witness statements to prove our client was not an aggressor. In some occasions, we even prevented the Prosecutor from charging the case, thereby preventing an arrest record for our client.

As time passes, video recordings from businesses and homes are deleted. That loss of evidence can mean the loss of your best defense. Furthermore, as memories fade and people lose contact with potential defense witnesses, days and weeks of delay mean the State may have an upper hand. The police reports will be considered the most reliable evidence.

Could you face a no contact order?

Every Day The Prosecutor Is Building A Case Against You

In the most serious Assault cases, such as any felony Assault charge, it is absolutely critical that you seek a defense lawyer immediately. Often, the Prosecutor will be waiting on police reports and investigation before charging a case (this can be months or even a year). The State is bolstering its case but you are losing your defenses with the passage of time. If you know investigation is underway or is at least likely, make sure you call a lawyer right away.

The Impact To Your Family

While an Assault 4 case or other misdemeanor charges can seem less serious, these charges often have the most negative impact on families in the long term. The financial burden of a No Contact Order can quickly lead to bankruptcy for families who were just barely making it financially. In the past, we have helped domestic partners establish that there was and is no risk to safety as well as no fear at the time of the partner’s arrest. In Washington, there is a mandatory arrest requirement when an officer is called to what appears to be a potential domestic violence situation. Since there is little discretion for the officer due to the mandatory arrest requirement, there are frequently mistakes made regarding who was the aggressor and whether there was even an assault taking place. An experienced criminal defense lawyer can help determine whether there is still time to prevent the No Contact Order from being issued. Again, time is critical in this situation.

Control Your Conditions Of Release

As discussed above, if you are facing an Assault charge with a domestic violence “tag,” the Prosecutor will seek a No Contact Order between you and the victim. Even if the No Contact Order forces you out of your own home, that is not a consideration for the Court. You will have to secure a residence that is away from your spouse, partner, or roommate and, if you share children, you may not be able to see your children due to the No Contact Order. This order can be in place for many months as the case works its way through the normal course of criminal cases. For this reason, if you have not yet been Arraigned on your charge and the No Contact Order is not yet in place, call our office immediately. In certain cases, your lawyer may be able to prevent the No Contact Order from being put in place but this is very fact specific, rare, and depends greatly on timing.

Going To Trial Versus Negotiating An Alternative Resolution Or Dismissal

Most people who call our office are worried about losing their family, their job, and serving jail time. These are very real concerns when you are facing an Assault charge. The more serious offenses carry very lengthy prison time. As attorneys, that is our most serious concern, too. You can’t get back to being a successful member of society if you are spending years in prison.

When it comes to Assault charges, there are different tactics a skilled defense attorney must use to keep clients out of jail or serving very little jail time. While most clients want to “tell their story” and have a chance to fight the charges by going to trial, there are times when this can be very dangerous. The reason is that juries can do very unusual things when it comes to judging a criminal case simply based on two versions of a story without direct evidence. Additionally, most jurors do not believe the State would take a case to trial if there weren’t truth to their version of the story. If you have a case that must go to trial, it is absolutely critical to have a skilled trial attorney present your version of events. 

Risks of Trial

When a case proceeds to trial, the Prosecutor is being forced to step away from hundreds of pending cases that she is trying to negotiate. Preparing for trial and spending a week or two in trial is not something the State wants to do unless absolutely necessary. If defense forces the issue of trial, be prepared for what are called “hold backs” or additional criminal charges. The State essentially held these additional charges back as an incentive for you to make a deal.

“Hold Backs” Or Extra Charges

When these “hold back” charges are reasonable and provable by the State, it can be very risky to proceed to trial. Perhaps you had a great defense on the original charge of Assault but are looking at a drug charge with intent to distribute (drugs were found when you were arrested for the Assault) and the elements on the hold back charge are easy to prove. Do you want to risk being found not guilty on the Assault charge but guilty on an attempt to distribute charge? Depending on your criminal history, perhaps not. These are all factors to consider if facing a serious charge that carries long prison time. Do not assume that attorneys who focus only on taking cases to trial is in your best interest. It is critical that you hire an experienced trial attorney but the attorney must also be incredibly skilled in negotiation techniques. The best defense attorney will need both of these tools to get the best outcome for a client.

Why Hire Us?

Our firm has tremendous success defending Assault cases at trial and negotiation. We prepare our clients with the facts of their case, the legal defenses they have, and all of the potential outcomes of their case. We thoroughly investigate all aspects of a case —looking for evidentiary issues and legal issues. We recognize that most assault cases come to us because the officers on scene decided winners and losers. They decided who was the aggressor and who was the victim. We will work tirelessly to present an accurate side of the story.

Did You Receive A Summons For An Assault Charge?

Receiving a Summons, rather than being arrested, can be a very helpful fact for certain Assault charges. Depending on the jurisdiction and type of charge, we can assist in presenting a proactive defense and prevent a No Contact Order from being put in place. In domestic situations, this can be a game changer. Since Assault 4 cases can go on for months, where there is no risk to the alleged victim, it is important to be able to stay in your residence.

How Much Does It Cost For Assault Defense?

Criminal defense attorneys work on a flat fee basis. This means that you do not pay an hourly fee or a contingency fee. In fact, it is unethical to charge a contingency fee in criminal cases. The flat fee you are charged usually depends on the location of where you are charged and the type of charge.

There Are 4 Levels Of Assault

The lowest level of Assault is Assault in the Fourth Degree. 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.

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.

How Are Assault 4 Cases Typically Resolved?

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.

Click here to learn more about compromise of misdemeanor

Click here to learn more about pre-trial diversion agreements

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!

Serious Consequences For Assault Charges

If you are accused of being in possession of a firearm when the Assault took place, you are facing the most serious of consequences. You will be facing a felony level charge and, if convicted, the prosecutor will add a sentencing enhancement. If you did not possess a firearm at the time of the offense, contact a defense attorney right away to see if evidence can be presented immediately that could move your charge from a Felony to a Misdemeanor. Whenever possible, it is critical to attempt to have Assaults handled in District Court because the consequences are less severe and the jail time is greatly reduced. Additionally, there are more lenient alternative resolution options in District Court.

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 (Class C)

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:

1. 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
2. Assaults a person employed as a [transit driver or any transit employee]; or
3. Assaults a person employed as a [school bus driver or any employee related to the operation of a school bus]; or
4. 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
5. 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
6. With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering; or
7. 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
8. Assaults a peace officer with a projectile stun gun; or
9. Assaults [basically any health care provider]; or
10. Assaults [anyone employed in the Courts]; or
11. Assaults [anyone located in a Court building].

Assault in the Second Degree (Class B*)

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:

1. Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
2. 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
3. Assaults another with a deadly weapon; or
4. With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
5. With intent to commit a felony, assaults another; or
6. Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or
7. Assaults another by strangulation or suffocation.

Assault in the First Degree (Class A)

1. A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

1. Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
2. 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
3. Assaults another and inflicts great bodily harm.

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.

How Are Felony Assault Cases Typically Resolved?

We always try to avoid a guilty finding to felony Assaults, therefore avoiding the sentencing guidelines mentioned above. Diversion type resolutions to felony Assaults are not as common as in misdemeanor Assaults, but that is always our goal. There are lesser known diversionary agreements in Superior Court, but we have great success having our clients accepted into these programs. Typically these diversionary programs will result in the felony Assault being dismissed. The common programs all fall under “Therapeutic Courts” in Kitsap County Superior Court. They are: Drug Court, THRIVE Court, Felony Diversion, Veteran’s Court and Behavioral Health Court.

Click here to learn more about drug court

Click here to learn more about thrive court

Click here to learn more about felony diversion

Click here to learn more about behavioral health court

We have had clients who apply for one of the diversion programs and be rejected, only to reapply under a different program and be accepted. Don’t lose hope when attempting to enter a Therapeutic Court Program

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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