Defenses to "Assault" and "Battery" in Nevada
(NRS 200.471, NRS 200.481)
(Explained by Las Vegas Criminal Defense Attorneys)

There are several potential defense strategies available when fighting the Nevada charge of assault or the Nevada charge of battery. Assault and battery are often very difficult for the prosecution to prove, especially if there are no witnesses to the incident or no physical injuries resulting from it.

In this article our Las Vegas criminal defense attorneys answer frequently-asked-questions about defenses to assault or battery charges in Nevada. These defenses could help an assault or battery charge get reduced to a lesser offense or dismissed completely through a negotiation. Or if the case goes to trial, these defenses could help win an acquittal. Click on a topic below to go directly to that section:

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Self-defense is just one possible defense to Nevada assault or battery charges.

1. "Self-defense" to fight Nevada assault and battery charges

Nevada self-defense law allows anyone to defend him/herself against immediate bodily injury or worse as long as the force he/she fights back with is reasonable under the circumstances. North Las Vegas criminal defense attorney Michael Becker gives an example of how a person can legally defend him/herself against assault and battery:

Example: Sam is walking through a Henderson alleyway when he comes across his enemy Jim. Jim starts punching Sam in the face, which is a form of battery. In response, Sam punches Jim back with more force. Then Jim brandishes a stick at Sam without touching him, which is a form of assault. In response, Sam waves his belt at Jim without touching him until Jim runs away.
If a policeman were watching, he would probably arrest and book Jim at the Henderson Detention Center for battery (punching Sam) and for assault (brandishing the stick at Sam). Sam would probably not be arrested because his actions were in reasonable self-defense to Jim's actions. Although punching is technically battery, Sam punching Jim was a measured response to Jim punching Sam first. And although waving a belt is technically assault, Sam waving the belt at Jim was a measured response to Jim brandishing a stick at him.

In the above example, Sam should not get convicted of battery or assault in Nevada because he was defending himself with reasonable force considering the circumstances. But had Jim merely elbowed Sam or verbally abused him, then Sam's reaction of punching Jim and waving his belt at Jim may have been too excessive to fall under self-defense.

Note that it is a crime in Nevada to provoke assaults. If Jim's taunts provoked Sam to commit an assault, a Nevada judge might fine Jim $500.1

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No battery is committed in Nevada if the accused did not intentionally touch the alleged victim.

2. "Accidents" to fight Nevada assault and battery charges

A Nevada assault charge requires that the prosecution prove that the suspect intended to put someone in reasonable fear of physical harm.2 Similarly, a Nevada battery charge requires the prosecution to prove that the suspect intended to use unlawful physical force on someone.3 Therefore, one way to fight these charges is to demonstrate that the suspect lacked intent. Henderson criminal defense attorney Neil Shouse gives an example:

Example: Jim is at a North Las Vegas bar playing darts. Right as Jim throws one, Sam walks in front of the dartboard, sees the dart coming towards him and ducks the dart. Later at the pool table, Jim is sliding back his cue stick and strikes Sam, who just walked behind Jim. Angry, Sam calls the police and claims Jim assaulted him with the dart and battered him with the cue stick.
If a policeman were watching, he probably would not arrest Jim for assault nor battery. When Jim threw the dart, he had no idea that Sam would walk in front of it. And when Jim slides back the cue stick, he had no idea Sam had just walked behind him.

In this case, the prosecution would have a difficult time arguing that Jim committed assault or battery in North Las Vegas because the situations were blameless accidents. Unless Jim had a reason to know Sam would be in the path of the dart or cue stick, Jim committed no crime.

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Consent is a defense to assault and battery charges in Nevada.

3. "Consent" to fight Nevada assault and battery charges

In some situations such as sports, participants are assumed to have consented to assault and battery. For example,

Example: Jim and Sam are playing football in the UNLV gym. When Jim tackles Sam during a play, Sam breaks a rib. There was nothing unusual about the play, and Jim did nothing atypically violent or aggressive.

In this case, the prosecution would have a hard time accusing Jim of a battery crime. Tackling is standard practice in football, and injuries are very common. As long as a game is fair and force is not excessive, consent may serve as a defense to assault and battery.

4. "No reasonable apprehension of immediate harm" to fight Nevada assault charges

The definition of "assault" in Nevada is putting someone in reasonable apprehension of immediate bodily harm. Therefore, a possible defense to assault charges is to argue that the alleged victim's apprehension was unreasonable and/or that the harm was not immediate. For example,

Example: Sam is walking through a Laughlin casino when Jim comes up to him, stomps his feet and says, "If you don't pay me the money you owe me in the next five minutes, you're gonna regret it!"

In this case, there is a good argument that no assault occurred because the harm Jim threatened was not immediate enough. Usually, any harm that would take more than a few seconds to occur disqualifies assault as a possible charge. Furthermore, any fear Sam feels from Jim's threat probably is not that reasonable since "you're gonna regret it" is too vague. (Note that Jim may face Nevada harassment charges for his actions and words.)

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Call 702-DEFENSE (702-333-3673) for a FREE consultation with a Nevada criminal defense attorney today.

Have you been arrested for assault or battery in Nevada? Call an attorney...

Charged with "assault" and/or "battery" in Nevada? There are various defenses available which may get your case to result in a reduction, dismissal or acquittal. Please call our Las Vegas assault and battery lawyers at 702-DEFENSE (702-333-3673) to schedule a free consultation.

If you are a non-citizen residing in Nevada who has been charged with assault or battery, it is important you hire a skilled criminal defense attorney now to try to ensure that you do not plea to a deportable offense in Nevada. We might even be able to help if you have already been convicted. Click on our criminal defense of immigrants in Nevada information page to learn more.


Legal References:

  1. NRS 200.490 Provoking assault: Penalty. Every person who shall, by word, sign or gesture, willfully provoke, or attempt to provoke, another person to commit an assault shall be punished by a fine of not more than $500.
  2. NRS 200.471 Assault: Definitions; penalties.

    1. As used in this section:

          (a) “Assault” means:

                 (1) Unlawfully attempting to use physical force against another person; or

                 (2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.

          (b) “Officer” means:

                 (1) A person who possesses some or all of the powers of a peace officer;

                 (2) A person employed in a full-time salaried occupation of fire fighting for the benefit or safety of the public;

                 (3) A member of a volunteer fire department;

                 (4) A jailer, guard or other correctional officer of a city or county jail;

                 (5) A justice of the Supreme Court, judge of the Court of Appeals, district judge, justice of the peace, municipal judge, magistrate, court commissioner, master or referee, including a person acting pro tempore in a capacity listed in this subparagraph; or

                 (6) An employee of the State or a political subdivision of the State whose official duties require the employee to make home visits.

          (c) “Provider of health care” means a physician, a medical student, a perfusionist or a physician assistant licensed pursuant to chapter 630 of NRS, a practitioner of respiratory care, a homeopathic physician, an advanced practitioner of homeopathy, a homeopathic assistant, an osteopathic physician, a physician assistant licensed pursuant to chapter 633 of NRS, a podiatric physician, a podiatry hygienist, a physical therapist, a medical laboratory technician, an optometrist, a chiropractor, a chiropractor's assistant, a doctor of Oriental medicine, a nurse, a student nurse, a certified nursing assistant, a nursing assistant trainee, a medication aide - certified, a dentist, a dental student, a dental hygienist, a dental hygienist student, a pharmacist, a pharmacy student, an intern pharmacist, an attendant on an ambulance or air ambulance, a psychologist, a social worker, a marriage and family therapist, a marriage and family therapist intern, a clinical professional counselor, a clinical professional counselor intern, a licensed dietitian, an emergency medical technician, an advanced emergency medical technician and a paramedic.

          (d) “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100.

          (e) “Sporting event” has the meaning ascribed to it in NRS 41.630.

          (f) “Sports official” has the meaning ascribed to it in NRS 41.630.

          (g) “Taxicab” has the meaning ascribed to it in NRS 706.8816.

          (h) “Taxicab driver” means a person who operates a taxicab.

          (i) “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.

    1. A person convicted of an assault shall be punished:

          (a) If paragraph (c) or (d) does not apply to the circumstances of the crime and the assault is not made with the use of a deadly weapon or the present ability to use a deadly weapon, for a misdemeanor.

          (b) If the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.

          (c) If paragraph (d) does not apply to the circumstances of the crime and if the assault is committed upon an officer, a provider of health care, a school employee, a taxicab driver or a transit operator who is performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event and the person charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator or a sports official, for a gross misdemeanor, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.

          (d) If the assault is committed upon an officer, a provider of health care, a school employee, a taxicab driver or a transit operator who is performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event by a probationer, a prisoner who is in lawful custody or confinement or a parolee, and the probationer, prisoner or parolee charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator or a sports official, for a category D felony as provided in NRS 193.130, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.

  3. NRS 200.481 Battery: Definitions; penalties.

    1. As used in this section:

          (a) “Battery” means any willful and unlawful use of force or violence upon the person of another.

          (b) “Child” means a person less than 18 years of age.

          (c) “Officer” means:

                 (1) A person who possesses some or all of the powers of a peace officer;

                 (2) A person employed in a full-time salaried occupation of fire fighting for the benefit or safety of the public;

                 (3) A member of a volunteer fire department;

                 (4) A jailer, guard, matron or other correctional officer of a city or county jail or detention facility;

                 (5) A justice of the Supreme Court, judge of the Court of Appeals, district judge, justice of the peace, municipal judge, magistrate, court commissioner, master or referee, including, without limitation, a person acting pro tempore in a capacity listed in this subparagraph; or

                 (6) An employee of the State or a political subdivision of the State whose official duties require the employee to make home visits.

          (d) “Provider of health care” has the meaning ascribed to it in NRS 200.471.

          (e) “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100.

          (f) “Sporting event” has the meaning ascribed to it in NRS 41.630.

          (g) “Sports official” has the meaning ascribed to it in NRS 41.630.

          (h) “Strangulation” means intentionally impeding the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person in a manner that creates a risk of death or substantial bodily harm.

          (i) “Taxicab” has the meaning ascribed to it in NRS 706.8816.

          (j) “Taxicab driver” means a person who operates a taxicab.

          (k) “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.

    1. Except as otherwise provided in NRS 200.485, a person convicted of a battery, other than a battery committed by an adult upon a child which constitutes child abuse, shall be punished:

          (a) If the battery is not committed with a deadly weapon, and no substantial bodily harm to the victim results, except under circumstances where a greater penalty is provided in this section or NRS 197.090, for a misdemeanor.

          (b) If the battery is not committed with a deadly weapon, and either substantial bodily harm to the victim results or the battery is committed by strangulation, for a category C felony as provided in NRS 193.130.

          (c) If:

                 (1) The battery is committed upon an officer, provider of health care, school employee, taxicab driver or transit operator who was performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event;

                 (2) The officer, provider of health care, school employee, taxicab driver, transit operator or sports official suffers substantial bodily harm or the battery is committed by strangulation; and

                 (3) The person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator or sports official,

    for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.

          (d) If the battery is committed upon an officer, provider of health care, school employee, taxicab driver or transit operator who is performing his or her duty or upon a sports official based on the performance of his or her duties at a sporting event and the person charged knew or should have known that the victim was an officer, provider of health care, school employee, taxicab driver, transit operator or sports official, for a gross misdemeanor, except under circumstances where a greater penalty is provided in this section.

          (e) If the battery is committed with the use of a deadly weapon, and:

                 (1) No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.

                 (2) Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $10,000.

          (f) If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, without the use of a deadly weapon, whether or not substantial bodily harm results and whether or not the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years.

          (g) If the battery is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee, with the use of a deadly weapon, and:

                 (1) No substantial bodily harm to the victim results, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years.

                 (2) Substantial bodily harm to the victim results or the battery is committed by strangulation, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.

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