Assault and Battery: Are You Being Charged With a Felony or Misdemeanor?

Man Being Arrested After an Assault and Battery ChargeIn Virginia, you could be charged with assault and battery as a felony or misdemeanor depending on the circumstances involved in the crime. Whether you are facing felony or misdemeanor charges, a conviction can have long-term consequences on your life after you complete your sentence—including a permanent criminal record. You do not want to give up and assume that you have no defenses to the charges. There are often many procedural or constitutional defenses or defenses based on the specific crime you are being charged with that can result in the charges against you being dismissed or reduced to a less serious offense with less harsh penalties. However, you will need the assistance of an experienced criminal defense attorney to help you build a strong defense.

What Are the Crimes of Assault and Battery?

In Virginia, assault and assault and battery—sometimes referred to as just battery—are two separate offenses. There are two ways that a person can commit the crime of assault:

  • Present ability to inflict harm. A person can be charged with assault if he performs an overt act—also known as a physical act—that is intended to inflict bodily harm on the victim while the accused has the ability to inflict bodily harm or injury. Threatening words alone would not constitute assault. However, if a person threatened someone while walking toward him and had to ability to harm the victim, it could be considered assault.
  • Fear of harm. Assault can also be committed if a person performs an overt act with the intent to place the victim in fear of bodily harm and the victim is placed in reasonable fear of this. For example, if a person walks toward someone threateningly and appears to be reaching in a pocket for a gun, he can be charged with assault if the victim reasonably believed the accused had a gun—even if he did not.

Battery is the harmful touching of a person and includes being touched by an object if it was set in motion by the accused person. The difference between assault and assault and battery is that there must be an actual touching for the crime of assault and battery to have been committed. The touching can be done intentionally, in anger, or to be rude or insulting.

Assault and battery is a Class 1 misdemeanor with a possible sentence of one year in prison and a fine of up to $2,500. Restitution to the victim may also be part of the sentence. For a first offense assault or battery charge, a person often does not receive the maximum sentence unless the crime was especially egregious.

When Assault and Battery Can Be Charged as a Felony

In Virginia, some assault and battery-type offenses can be charged as either a misdemeanor or felony based on the seriousness of the crime and other factors, while others are almost always felony offenses. Some of these crimes include:

  • Hate crimes. If a person inflicts bodily harm on another person based on his race, religion, color, or natural origin, he could be convicted of a Class 6 felony with a possible sentence of one to five years in prison and a fine of up to $2,500. There is a minimum prison sentence of six months, and the defendant must serve at least 30 days in jail.
  • Domestic violence. Domestic violence is considered battery when the injury is inflicted on a family or household member, such as a spouse, children, parents, and people who have lived together in the past year. For a first offense conviction, the person may be placed on probation. However, if the person has been convicted of domestic violence, assault, or assault and battery in the past, the conviction will most likely be a Class 6 felony with a one to five year prison sentence and a fine not exceeding $2,500.
  • Unlawful wounding. Unlawful wounding is the shooting, stabbing, cutting, or otherwise injuring a person with the intent to maim, disfigure, disable, or kill the person. The person’s skin must be broken or a gun must have been used. This is a Class 6 felony with the same range of prison sentence and fine as domestic violence.
  • Malicious wounding. Malicious wounding is a similar felony crime as unlawful wounding except that the criminal act must also have been committed with malice. This is a Class 3 felony with a 5 to 20 year prison sentence and up to $100,000 in fines. If the victim suffered permanent and significant impairment or termination of a pregnancy, the conviction could be for aggravated malicious wounding, which is a Class 2 felony. This carries a sentence of 20 years to life in prison and a fine of up to $100,000.

Contact Greenspun Shapiro PC If You Are Charged With Felonious Assault or Battery

If you have been charged with felonious assault or assault and battery—whether the charges are a misdemeanor or felony—let the experienced criminal defense attorneys at Greenspun Shapiro PC help you build your defense. Our attorneys understand how even a misdemeanor conviction can impact on your life and will aggressively fight the charges against you. Start an online chat today to schedule your free consultation to learn what you can realistically expect in your case and how we can assist you.