Washington Misdemeanor and Gross Misdemeanor Classifications

In Washington, a misdemeanor and a gross misdemeanor are the two tiers of non-felony criminal offenses, and the difference is substantial. A simple misdemeanor carries up to 90 days in jail and a fine of up to $1,000. A gross misdemeanor carries up to 364 days in jail and a fine of up to $5,000. The classification also controls how long prosecutors have to file charges, whether you can seek deferred prosecution, and whether you can eventually clear the conviction from your record.

How a Charge Gets Classified

Most Washington criminal statutes name the classification directly. Disorderly conduct is labeled a misdemeanor in the statute itself; fourth-degree assault is labeled a gross misdemeanor. When a statute is silent, a default rule fills the gap: if the maximum punishment is no more than 90 days in jail and a $1,000 fine, the offense is a misdemeanor.¹ If a statute prohibits an act but sets no penalty at all, the act is automatically a misdemeanor. Everything between a misdemeanor and a felony defaults to gross misdemeanor.

That residual category is broader than it looks. It sweeps in every offense the legislature treated as more serious than a simple misdemeanor but not serious enough to be a felony. If a charging statute doesn’t clearly say “misdemeanor,” there’s a good chance the offense is a gross misdemeanor by default.

Simple Misdemeanor Penalties

A simple misdemeanor is the least severe criminal charge in the state. The maximum is 90 days in county jail, a fine of up to $1,000, or both.² Those are ceilings. A judge can impose any combination up to those limits, including no jail time.

Disorderly conduct is one of the most commonly charged offenses in this tier.³ Minor public disturbances and low-level regulatory violations that carry no specified penalty also land here through the default rule.

Gross Misdemeanor Penalties

Gross misdemeanors carry up to 364 days in jail and a fine of up to $5,000, or both. The one-day gap below a full year is deliberate. Federal immigration law can classify a conviction as an aggravated felony when the sentence is one year or more, which triggers automatic deportation for noncitizens. Capping the maximum at 364 days was an intentional safeguard for lawful immigrants, domestic violence victims, and political refugees.²

Common offenses in this tier include fourth-degree assault, driving under the influence, and third-degree theft.⁴⁵ Third-degree theft covers stolen property or services valued at $750 or less. Third-degree malicious mischief also sits in this tier despite the “third degree” label.⁶ A first-offense DUI is a gross misdemeanor unless aggravating factors push it to felony level.⁷

When the Judge Has No Discretion

For most misdemeanors and gross misdemeanors, the judge has broad discretion within the statutory maximums. DUI is the major exception. Washington’s DUI penalty schedule locks in mandatory minimum jail time and fines that the judge cannot waive, and the minimums escalate with blood alcohol concentration and prior offenses.

For a first offense with no prior DUI convictions in the past seven years:

BAC below 0.15: at least 24 consecutive hours in jail and a minimum fine of $350, of which the $350 cannot be suspended unless the court finds the defendant indigent.⁸
BAC at or above 0.15, or test refusal: at least 48 consecutive hours in jail and a minimum fine of $500, of which the $500 cannot be suspended unless the court finds the defendant indigent.⁸

Those minimums climb steeply with priors. A second DUI within seven years, a third within seven years, and four or more within fifteen years each trigger progressively longer mandatory jail terms and higher fines.⁸ Judges cannot go below these floors, even for a defendant with an otherwise clean record. First-time defendants often assume the judge has room to move. On DUI, the judge simply doesn’t.

Money Beyond the Fine

A conviction generates financial obligations on top of the fine itself. The largest mandatory assessment is the crime victim penalty assessment. A case involving one or more gross misdemeanor convictions carries a $500 assessment. A case involving only misdemeanor convictions carries $250.⁹ The funds support victim and witness assistance programs.

A 2023 change matters here: the court cannot impose the victim penalty assessment at all if it finds that the defendant is indigent at sentencing.⁹ Before this reform, courts were prohibited from reducing or waiving it under any circumstances.

Other financial obligations can include court-appointed attorney fees, DNA collection fees, restitution to the victim, and various court costs.¹⁰ Some are mandatory; others are discretionary and can be waived by the judge based on the defendant’s income and ability to pay. Ask at sentencing which is which. The total cost of a misdemeanor conviction routinely exceeds the fine by a wide margin.

How Long the State Has to File Charges

Prosecutors have a limited window. For simple misdemeanors, charges must be filed within one year of the alleged offense. For gross misdemeanors, the window is two years.¹¹

If the clock runs out before charges are filed, prosecution is barred. The deadline can be paused if the defendant leaves the state or otherwise evades prosecution. These limits govern the filing of charges, not the trial itself. Once charges are filed within the window, the case proceeds on its own timeline.

Deferred Prosecution

Washington allows a defendant charged with a misdemeanor or gross misdemeanor to petition for deferred prosecution. If granted, and if the defendant completes the required treatment or supervision program, the charges can be dismissed. The petition must be filed at least seven days before the scheduled trial date.¹²

DUI has its own rules. A person charged with a first DUI can petition for deferred prosecution, and the statute also permits a second deferred prosecution for a later DUI if the person has no other prior offenses. The first deferred prosecution doesn’t count as a prior for purposes of granting the second, but separate offenses more than seven days apart cannot be combined into a single program.¹² Defendants charged with domestic violence offenses originally filed as felonies in superior court are not eligible.

Deferred prosecution is not the same as having charges dropped. The court keeps jurisdiction, and if you fail to meet the program’s requirements, the original charges can be reinstated. Used successfully, it’s one of the strongest tools available at the misdemeanor level for avoiding a permanent conviction.

Vacating a Conviction Later

After completing every term of the sentence, including all financial obligations, a person convicted of a misdemeanor or gross misdemeanor can petition the sentencing court to vacate the conviction. Vacating doesn’t erase the arrest, but it withdraws the finding of guilt and releases the person from most penalties and disabilities tied to the conviction.¹³

Vacating is not available for every conviction. The court will deny the petition if:

The sentence is not fully completed, including all financial obligations.
Criminal charges are pending in any court, including federal or tribal courts.
The conviction was for a violent offense or an attempt to commit one.
The conviction was for driving under the influence or actual physical control while intoxicated, with additional restrictions tied to subsequent violations and a 10-year lookback period.
The conviction involved sexual exploitation of children, sex offenses, or obscenity-related crimes.
The conviction involved domestic violence, subject to additional conditions including notification to the prosecuting attorney and restrictions for defendants with multiple domestic violence convictions.

Even when none of these bars apply, vacating is discretionary. The court weighs the circumstances and can still deny. For eligible offenses, though, this is the clearest path to removing a misdemeanor or gross misdemeanor conviction from the record.¹³

Consequences the Sentence Doesn’t Show

The jail time and fine are often not the worst part of a misdemeanor conviction. Federal law creates consequences that outlast the sentence itself, and these catch people off guard more than anything in the state penalty schedule.

Firearms

A conviction for a misdemeanor crime of domestic violence triggers a permanent federal ban on possessing or purchasing firearms or ammunition. The ban applies regardless of the sentence imposed and regardless of whether the person works in law enforcement or government. There is no exception for official duties.¹⁴ It covers offenses where the defendant used or attempted to use physical force against a current or former spouse, cohabitant, co-parent, or dating partner. A qualifying conviction does not need to be labeled “domestic violence” in the charging document. What matters is the factual relationship between the parties and the element of force.

Immigration

The 364-day cap on gross misdemeanors was designed to avoid automatic deportation, but misdemeanor convictions can still create serious immigration problems. A conviction classified as a crime involving moral turpitude, which generally includes offenses involving fraud, theft, or intent to harm, can make a noncitizen ineligible for a visa or inadmissible.¹⁵ A narrow “petty offense” exception exists when the person has only one such conviction, the maximum possible penalty did not exceed one year of imprisonment, and the actual sentence was six months or less. Washington’s 90-day misdemeanors generally fit within this exception; gross misdemeanors with a 364-day maximum may not, depending on the sentence actually imposed.

Commercial Driver’s License

A DUI conviction, even as a gross misdemeanor and even when the driver was in a personal vehicle, is a major offense under federal motor carrier regulations. The minimum disqualification period for a commercial driver’s license is one year.¹⁶ For anyone who drives commercially, a misdemeanor DUI means a year of lost income on top of whatever the court imposes.

Professional Licensing and Security Clearances

State licensing boards for healthcare, education, law, and other regulated professions review criminal history as a matter of course. A gross misdemeanor conviction, particularly one involving violence, dishonesty, or substance abuse, can delay or block licensure. Boards evaluate cases individually, weighing the nature of the offense, how recently it occurred, and evidence of rehabilitation. Federal security clearance adjudicators take a similar case-by-case approach. Failing to disclose a conviction during an application is often treated more harshly than the conviction itself.

1
Washington State Legislature. Washington Code 9A.20.010 – Classification of Crimes
2
Washington State Legislature. Washington Code 9A.20.021 – Maximum Sentences for Crimes Committed on or After July 1, 1984
3
Washington State Legislature. Washington Code 9A.84.030 – Disorderly Conduct
4
Washington State Legislature. Washington Code 9A.56.050 – Theft in the Third Degree
5
Washington State Legislature. Washington Code 9A.36.041 – Assault in the Fourth Degree
6
Washington State Legislature. Washington Code 9A.48.090 – Malicious Mischief in the Third Degree
7
Washington State Legislature. Washington Code 46.61.502 – Driving Under the Influence
8
Washington State Legislature. Washington Code 46.61.5055 – Alcohol and Drug Violators Penalty Schedule
9
Washington State Legislature. Washington Code 7.68.035 – Crime Victim Penalty Assessment
10
Washington State Legislature. Washington Code 3.66.115 – Legal Financial Obligations Defined
11
FindLaw. Washington Code 9A.04.080 – Prosecution Time Limitations
12
Washington State Legislature. Washington Code 10.05.010 – Deferred Prosecution
13
Washington State Legislature. Washington Code 9.96.060 – Vacating Records of Conviction
14
Office of the Law Revision Counsel. United States Code Title 18 Section 922 – Unlawful Acts
15
U.S. Department of State. 9 FAM 302.3 – INA 212(A)(2) Criminal and Related Grounds
16
Federal Motor Carrier Safety Administration (FMCSA). Disqualification of Drivers (383.51)