Malicious or Unlawful Assault in West Virginia

By , Attorney · New Mexico School of Law

Felony assault in West Virginia is defined as either a malicious or an unlawful assault. Malicious assault consists of:

  • maliciously shooting, stabbing cutting, wounding, or causing serious bodily injury to another person
  • with intent to maim, disfigure, or kill the other person. (W. Va. Code Ann. §61-2-9(a).)

Unlawful assault also consists of shooting, stabbing cutting, wounding or causing serious bodily injury to another person, but without the intent to cause serious harm or death. This is considered an unlawful act but not a malicious one. (W. Va. Code Ann. §61-2-9(a).)

If the basis for a charge of felony assault is serious bodily injury caused by the defendant, that injury must involve a broken bone, disfigurement, loss of limb or an injury requiring surgery and/or hospitalization. A minor injury like a cut, scrape, or bruise is not a serous bodily injury and the crime will be considered the lesser offense of battery.


Malicious assault and unlawful assault are felonies. A person convicted of these crimes faces a possible jail or prison sentence that can be increased depending on who the victim is.

Penalties for malicious assault

Penalties depend on the circumstances of the crime.

  • Malicious assault in general is punishable by 2 to 10 years in prison.
  • Malicious assault against a public servant, healthcare worker or emergency service personnel is punishable by 3 to 15 years, if the victim was acting within his official capacity and the offender knew or should have known that he was so acting.
  • Malicious assault against a child aged sixteen or under that occurs within 1000 feet of a school is punishable by 5 to 15 years in prison.

Penalties for unlawful assault

Unlawful assault is also punished according to the circumstances of the offense.

  • Unlawful assault carries a sentence of up to one year in jail and a fine up to $500, or by 1 to 5 years in prison.
  • Unlawful assault against a a public servant, healthcare worker or emergency service personnel is punishable by 2 to 5 years in prison, if the victim was acting within his official capacity and the offender knew or should have known that he was so acting.

Pre-Trial Diversion, Suspended Sentence and Probation

West Virginia law provides certain alternatives to a jail sentence for a person charged with or convicted of malicious or unlawful assault.

Pre-trial diversion

Before trial, the prosecuting attorney can enter into a pre-trial diversion agreement with the defendant. The more serious the offense, the less likely this will be an option for a defendant. The agreement provides that the defendant will not be prosecuted for the crime if he complies with certain conditions over a period of time, up to 24 months. The conditions can include not committing any further criminal acts, participating in treatment, maintaining a permanent residence or employment, observing a curfew, drug testing, and, in some cases, complying with supervised probation. Probation normally involves similar conditions, as well as reporting to a probation officer on a regular basis. The arrest and diversion will be part of the defendant's criminal record.

In some cases, the pre-trial diversion agreement may involve only an agreement that the defendant will comply with conditions in exchange for the opportunity to plead guilty at the end of the conditional period to a lesser offense.

If the defendant fails to satisfy the conditions of the pre-trial diversion agreement, the agreement usually requires an automatic guilty plea for the offense charged and whatever sentence the court decides to impose.

Suspended sentence

If the court suspends a sentence, the court imposes a jail sentence after the defendant is convicted or pleads guilty of malicious or unlawful assault, but allows the defendant to serve all or a portion of the time on probation rather than in jail. Probation can include the conditions listed above. The defendant also may be required to pay restitution, which involves reimbursing the victim for any expenses or financial losses resulting from the crime, such as the cost of medical treatment or counseling, or repair or replacement of damaged property.

The defendant must successfully complete probation and any other conditions the court imposes or he will be required to complete the sentence in jail.

Pleas and Pre-Trial Options

If you are facing a malicious or unlawful assault charge in West Virginia, consider contacting an attorney, who can investigate the case and determine if you were wrongfully charged or if there are other grounds on which the case could be dismissed before trial. An attorney also may be able to negotiate a plea bargain with the prosecutor on your behalf, or prepare a defense and represent you at trial, if you believe you have been wrongly accused or if there are no reasonable plea options. Prosecutors may negotiate and agree to a lighter sentence in exchange for a guilty plea or to the defendant pleading guilty to a different, less serious crime.

The Value of Good Representation

A conviction for malicious ore unlawful assault becomes part of your permanent criminal record. If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. Being a convicted felon will seriously affect your life. A convicted felon loses the right to vote and carry firearms and can lose certain professional licenses. A conviction for a violent felony also can hurt you when you are looking for a job or applying to rent a house or apartment. An experienced attorney can determine whether you have any grounds for dismissal of the charges against you, explore plea options or represent you at trial.

Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of the circumstances of your case into consideration, assist you in making decisions about your case, and protect your rights.

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