West Virginia Assault and Battery Laws

By , Attorney (New Mexico School of Law)

Assault in West Virginia consists of attempting to cause violent injury to another person or causing another person – by threats, words or actions – to feel afraid of impending violence. (W. Va. Code Ann. §61-2-9(b).)

Battery is in West Virginia is unlawful, intentional physical contact that is insulting or provoking or results in physical harm. (W. Va. Code Ann. §61-2-9(c).)

Both assault and battery usually are misdemeanors in West Virginia. Misdemeanor battery involves minor bodily injury like a cut, scrape or bruise. Injury such as a broken bone, disfigurement, loss of a limb, or injury requiring surgery or hospitalization is a "serious bodily physical injury." If the offender causes this kind of injury, the crime is a more serious assault. For information, see Malicious and Unlawful Assault in West Viriginia.

If an offender in West Virginia commits an assault or battery against a family or household member, such as a spouse or former spouse, a boyfriend or girlfriend, or someone with whom the offender resides, the crime is a domestic assault or domestic battery. If a person commits any assault or battery crime and has as record of domestic assault or battery in the past ten year, the penalty for the crime will be more severe than the basic penalty for assault or battery. For more information on domestic violence crimes in West Virginia, see Domestic Violence Crimes in West Virginia.

Penalties for Assault and Battery in West Virginia

Assault is punishable by up to six months in jail or a fine up to $100, or both.

Battery is punishable by up to twelve months in jail or a fine up to $500, or both.

Penalties for assault or battery against special victims

If the victim of an assault or battery is a government representative, such as a state worker or officer or a person working under contract with the state, a healthcare worker or emergency service personnel such as a paramedic or firefighter, and the victim was engaged in his official duties at the time of the offense, the penalties are as follows:

  • assault – 24 hours to six months in jail or a fine up to $200 or both, and
  • battery – one month to one year in jail or a fine up to $500 or both.

If the charge is a second or third offense of assault or battery against a government representative, healthcare worker or emergency service personnel acting in his official capacity, the crime is a felony punishable as follows:

  • second offense – one to three years in prison or a fine up to $1000 or both, and
  • third offense – two to five years in prison or a fine up to $2000 or both.

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 simple assault or battery.

Pre-trial diversion

Before trial, the prosecuting attorney may be willing to enter into a pre-trial diversion agreement with the 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.

Pre-trial diversion is not available to a defendant who has committed a domestic violence crime and has had a prior conviction for domestic violence or been on pre-trial diversion for a domestic violence crime in the past. Pre-trial diversion is available to a defendant who has been charged with domestic violence for the first time only if a specific domestic violence pre-trial diversion program is available.

Suspended sentence

If the court suspends a sentence, the court imposes a jail sentence after the defendant is convicted or pleads guilty of assault or battery, 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.

The Value of Good Representation

A conviction for assault or battery 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. A conviction for a violent crime – even a misdemeanor – can hurt you when you are looking for a job or applying to rent a house or apartment. A convicted felon loses the right to vote and carry firearms and can lose certain professional licenses.

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 this into consideration, assist you in making decisions about your case, and protect your rights.

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