Nevada "Battery Domestic Violence" (BDV) Laws (NRS 200.485)
(Explained by Las Vegas Domestic Violence Lawyers)



The Nevada crime of "battery domestic violence" (BDV) is defined as intentionally inflicting unlawful physical force against a family member, spouse, dating partner, or a housemate.

NRS 33.018 reads: “Domestic violence occurs when a person commits [battery] against or upon the person's spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person's minor child or any other person who has been appointed the custodian or legal guardian for the person's minor child[.]”

"Battery domestic violence" is one of the most frequently charged crimes in Nevada. Many BDV cases begin with police responding to a 911 call, and often cops end up arresting an innocent party who was falsely accused or was not the first aggressor.

Examples

BDV behaviors include any kind of hitting such as:

  • pushing or slapping an ex-husband or ex-wife;
  • punching or strangling a significant other;
  • throwing an object at or spitting on a sibling or other relative; or
  • burning or poisoning a roommate
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"Battery domestic violence" can be prosecuted as either a misdemeanor or felony in Nevada.

Penalties for misdemeanor "battery domestic violence"

Jail for a first-time, misdemeanor "battery domestic violence" conviction in Nevada is rare as long as the accused does the following four things:

  • pay a fine of $200 to $1,000;
  • complete 48 hours to 120 hours of community service;
  • attend weekly counseling for 6 months to a year; and
  • stay out of trouble (picks up no new arrests or citations) while the BDV case is open;

But a second-time misdemeanor BDV conviction (that occurred within seven years of the first) requires 10 days in jail.

Penalties for felony "battery domestic violence"

A third-time BDV charge (that occurred within seven years of the first) becomes a felony carrying up to 5 years in Nevada State Prison. And if the incident involved strangulation, deadly weapons, or substantial bodily harm to the alleged victim, BDV is an automatic felony carrying up to 15 years in prison.

Legal Defenses

There are several ways to fight Nevada "battery domestic violence" charges. Common defenses are:

  • the accused acted in self-defense;
  • the incident was an accident; or
  • the alleged victim made up the whole abuse story and perhaps self-inflicted his/her injuries

And if the police may have conducted an illegal search, the judge can "suppress" any incriminating evidence they found. This in turn may leave the prosecutor with too weak of a case to prove guilt beyond a reasonable doubt.

In this article our Las Vegas criminal defense lawyers answer frequently-asked-questions about Nevada "battery domestic violence" law. Click on a topic to go directly to that section:

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"Battery domestic violence" is one of the most frequently prosecuted offenses in Nevada.

1. The legal definition of "battery domestic violence" in Nevada

NRS 200.485 defines the Nevada offense of "battery domestic violence" (BDV) as having the following two elements:

  1. The accused and the alleged victim are either related, married, dating, or living together; and
  2. The accused committed battery (the intentional infliction of unlawful physical force) against the alleged victim.

Nevada prosecutors have the burden to prove both of these two elements beyond a reasonable doubt in order for the court to convict the accused of "battery domestic violence." In this section we discuss these two elements in detail:

1.1 "Domestic relations" as an element of the Nevada crime of "battery domestic violence"

Nevada "battery domestic violence" charges apply only when the accused and alleged victim share an familial, intimate, or domestic relationship. Examples of relationships that qualify for the purposes of Nevada BDV law include the following:

  • spouses (current, separated, or divorced)
  • domestic partners (current or separated)
  • co-parents
  • significant others (regardless of whether the relationship is exclusive)
  • relatives (by blood or marriage)
  • cohabitants (roommates, housemates, apartment-mates)
  • the accused is the guardian of the alleged victim

Therefore a person should not be convicted of "battery domestic violence" in Nevada if the accused and alleged victim share no familial, romantic, or domestic relationship. Physical violence between friends, acquaintances, neighbors, or strangers may qualify as the Nevada crime of battery but never as "battery domestic violence."

1.2 "Battery" as an element of the Nevada crime of "battery domestic violence"

The definition of the Nevada crime of battery is when a person deliberately touches another person in a violent, aggressive, hostile, or simply unwanted way. Battery charges typically involve allegations of either:

  • hitting (punching, slapping, crushing, or pinching)
  • kicking or stepping on
  • pushing or shoving
  • choking or strangling
  • spitting on or biting
  • throwing an object that hits or otherwise touches the alleged victim
  • spilling something on the alleged victim
  • cutting
  • burning
  • poisoning
  • tugging at the clothes, handbag, or other item on the body of the alleged victim
  • any indirect unlawful touching, such as striking a bicycle while the alleged victim is riding it

Note that there needs to be an actual physical touching for a person to be convicted of battery. For example, raising a fist at someone's face but not making any physical contact does not fall within the legal definition of battery in Nevada. That action is instead considered the Nevada crime of "assault" because it put someone in apprehension of unlawful physical contact that did not end up materializing.

Also note that a person should not be convicted of battery in Nevada when the touching is unintentional. If a shopper slips on some unmarked wet floor and careens into a nearby stock clerk, no crime was committed because the shopper had no intention of hitting the stock clerk. However, not all honest accidents let the accused off the hook for criminal liability: If that same shopper decided to slide on the wet floor for fun and accidentally careens into the stock clerk, the shopper could be liable for battery because the shopper should have reasonably foreseen that sliding on a wet floor could result in someone else being hurt.

Finally, note that a person can be convicted of battery in Nevada even if the alleged victim does not sustain any injuries or even feels pain. All that matters is that there was unlawful or unwanted physical touching regardless of the consequences.

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"Battery domestic violence" is a broad crime in Nevada that encompasses many different types of alleged abuse and domestic relationships.

1.3 Summary of the Nevada crime of "battery domestic violence"

To review, the definition of "battery domestic violence" in Nevada is when someone deliberately touches in an unlawful or unwanted way his/her spouse, dating partner, relative, or roommate.

Below are some common abuse scenarios and explanations as to whether they qualify as BDV:

  • Is a husband deliberately hitting his wife "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between spouses.
  • Is a wife deliberately slapping her husband "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between spouses. Gender is irrelevant, and it does not matter if the slap was not hard or left no mark.
  • Is a husband deliberately punching his husband, or a wife deliberately biting her wife, "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between spouses. Same-sex married couples are just as susceptible to BDV charges as opposite sex couples.
  • Is a boyfriend deliberately pushing his girlfriend "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between dating partners. A person can still be charged with BDV against a significant other even if they are not married.
  • Is a boyfriend deliberately shoving his boyfriend, or a girlfriend deliberately kicking her girlfriend, "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between dating partners. Sexual orientation is irrelevant.
  • Is deliberately pinching someone you have a crush on "battery domestic violence" in Nevada? No, because you are not currently or have been in a dating relationship. (Note that pinching anyone against his/her will could qualify as the Nevada crime of open or gross lewdness.)
  • Is deliberately choking an ex-spouse, ex-girlfriend or ex-boyfriend "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between former dating partners. It does not matter if the couples are no longer together.
  • Is a brother deliberately stepping on his sister "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between family members. This applies to all relatives, including aunts, uncles, cousins, parents, adult children, and in-laws.
  • Is a parent beating up his/her child "battery domestic violence" in Nevada? No, that would be considered the Nevada crime of child abuse, which can carry harsher penalties than BDV.
  • Is deliberately spitting on your housemate "battery domestic violence" in Nevada? Yes, because there was intentional unwanted touching between people in a domestic relationship. It does not matter if the housemates sleep in the same room or are platonic.
  • Is a wife throwing a vase towards her husband and missing "battery domestic violence" in Nevada? No, because no touching occurred. The wife instead could be charged with the Nevada crime of assault for placing her husband in anticipation of being hit by the vase. Note there is no Nevada crime of "battery domestic assault."

Consequently, not all fights invite liability for "battery domestic violence" in Nevada. There needs to be a familial, dating, or domestic relationship between the parties, and the incident needs to have involved deliberate touching that was unlawful or unwanted.1

2. Defense strategies for Nevada "battery domestic violence" cases

Every "battery domestic violence" case in Nevada is unique. Therefore, the best methods for fighting charges depends on the individual facts. But the three most common defenses to Nevada "battery domestic violence" charges are:

  1. Self-defense
  2. False allegations/ self-inflicted injuries
  3. Accident

2.1 Self-defense can win a Nevada "battery domestic violence" case

Nevada self-defense law allows anyone to employ physical force on another person as long as he/she reasonably believes it is necessary to avoid imminent injury or death to themselves or someone else. People using self-defense are not allowed to inflict more violence than necessary to protect themselves or others. Boulder City domestic violence attorney Michael Becker gives an example:

Example: Grace and Sally are roommates in Searchlight. They have an altercation over rent money. Eventually Grace slaps Sally. Sally then shoves Grace to the ground to stop the attack. Although shoving ordinarily qualifies as criminal battery, the Clark County D.A. would probably not file charges because Sally was acting in reasonable self-defense that stopped the attack and did not escalate it.

Often self-defense matters come down to "he said/she said" situations. But in some cases there is video recording of the incident or witnesses who saw the whole exchange. And medical experts may be able to testify as to whether a certain injury was more in line with self-defense than with direct aggression.

2.1.1 Battered woman's syndrome / Battered person syndrome

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"Battered Woman's Syndrome" is typically not a defense in non-fatal cases of "battery domestic violence" in Nevada.

Battered person's syndrome is a recognized medical condition that drives repeated abuse victims to retaliate and batter their abusers out of self-defense. In Nevada, this syndrome is typically used as a defense only in cases of domestic homicide and not in cases of battery domestic violence.

2.2 False allegations can win a Nevada "battery domestic violence" case

A vast number of Nevada "battery domestic violence" cases ensue from furious or vengeful spouses or exes attempting to get the other person in hot water by falsely reporting to authorities that they were abused. Many false accusers go so far as to harm themselves and then blame the accused for their injuries.

Fortunately, an in-depth investigation may be able to reveal when a self-proclaimed BDV "victim" in Nevada is deceiving law enforcement and fabricating evidence. Additionally, expert medical witnesses can often distinguish between genuine injuries and self-inflicted ones. North Las Vegas domestic violence lawyer Neil Shouse gives an illustration:

Example: In Sparks, Abby discovers that her boyfriend Sid has been sleeping with Abby's best friend. Wanting to cause him grief, Abby phones 911 and makes up a story about Sid stabbing her. Then while law enforcement is en route, Abby takes a kitchen knife and cuts her arms and legs. The cops then book Sid at the Washoe Detention Center and photograph Abby's injuries. After Sid gets charged for BDV, his defense attorney retains an expert medical witness to scrutinize Abby's knife wounds. This expert studies the angle of the cuts and determines that they were probably self-inflicted. This testimony compels the D.A. the drop the BDV charge.

Note that Abby in the above example may not get away with her ruse. As explained below in question 8, alleged victims who make up BDV allegations face charges for the Nevada offense of making a false police report.

2.3 Accidents can win a Nevada "battery domestic violence" case

Honest accidents that ensue from unlucky, unforeseeable situations should not result in criminal liability. If the prosecutor cannot prove beyond a reasonable doubt that the accused intentionally used unlawful physical force, no "battery domestic violence" occurred. For example:

Example: Fiances Esther and Edward have an argument in their Moapa house. Esther runs to the bathroom to be alone, and she does not realize Edward is tailing her. Esther then slams the bathroom door behind her, hitting Edward. Had Esther hit Edward on purpose, she could be liable for BDV in Nevada. But because it was a legitimate accident, she should not face charges.

Had Esther known in the above example that Edward was right behind her, then she would face Nevada BDV charges because it was reasonably foreseeable that slamming the door behind her would cause Edward to be hit.2

Note that police mistakes can also help a defendant's case in fighting Nevada BDV charges. If law enforcement may have found evidence through an illegal search, the defendant can file a Nevada motion to suppress asking the judge to disregard the unlawfully discovered evidence. If the judge agrees, the D.A. may be left with insufficient evidence to sustain a BDV conviction.

3. Penalties, punishments, and sentences in Nevada "battery domestic violence" cases

In Nevada, "battery domestic violence" may be prosecuted as either a misdemeanor in Nevada (the least serious BDV charge), a category C felony in Nevada, or a category B felony in Nevada (the most serious BDV charge). How a specific BDV case is ultimately prosecuted depends on four factors:

  1. Whether the defendant had a previous BDV conviction within the last seven years
  2. Whether the defendant strangled the alleged victim
  3. Whether the defendant used a deadly weapon on the alleged victim such as a gun or switchblade
  4. Whether the alleged victim sustained substantial bodily harm in Nevada such as a debilitating injury, burns, or disfigurement

Predictably, a BDV defendant with no prior history of domestic violence will be treated more leniently than someone who has. And if the alleged BDV incident was minor, the defendant will be treated more leniently than if it involved deadly weapons or strangulation or caused serious bodily harm. The following table outlines all the possible penalties in Nevada "battery domestic violence" cases:

Nevada “Battery Domestic Violence” Penalty Chart

Type of BDV case

Class of Crime

Incarceration

Fines

Other penalties

First-time BDV in the last seven years*

Misdemeanor

2 days to 6 months in jail^

$200 to $1,000 (plus a $35 administrative assessment fee)

- 48 to 120 hours of community service

- Domestic violence counseling for at least 1 ½ hours per week for 6 to 12 months at the patient's expense (it is usually just for 6 months)

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

Second-time BDV in the last seven years*

Misdemeanor

10 days to 6 months in jail

$500 to $1,000 (plus a $35 administrative assessment fee)

- 100 to 200 hours of community service

- Domestic violence counseling for at least 1 ½ hours per week for 6 to 12 months at the patient's expense

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

Third-time BDV in the last seven years*

Category C felony

1 to 5 years in Nevada State Prison

Up to $10,000 (the judge has discretion over whether to impose a fine)

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

BDV with strangulation

Category C felony

1 to 5 years in Nevada State Prison

Up to $15,000

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

BDV resulting in substantial bodily harm but with no deadly weapon

Category C felony

1 to 5 years in Nevada State Prison

Up to $10,000

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

BDV with deadly weapon but no substantial bodily harm

Category B felony

2 to 10 years in Nevada State Prison

Up to $10,000

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

BDV with deadly weapon and substantial bodily harm

Category B felony

2 to 15 years in Nevada State Prison

Up to $10,000

- No more new arrests or citations (other than minor traffic tickets) while BDV case is open

*There was no strangulation, deadly weapons, or substantial bodily harm to the victim.

^Any jail time may be served intermittently if the judge approves it as long as each period of incarceration spans at least four consecutive hours.

Nevada “Battery Domestic Violence” Penalty Chart

Type of BDV case

Penalties~

First-time BDV in the last seven years*

(Misdemeanor)

- 2 days to 6 months in jail^

- $200 to $1,000 (plus a $35 administrative assessment fee)

- 48 to 120 hours of community service

- Domestic violence counseling for at least 1 ½ hours per week for 6 to 12 months at the patient's expense (it is usually just for 6 months)

Second-time BDV in the last seven years*

(Misdemeanor)

- 10 days to 6 months in jail

- $500 to $1,000 (plus a $35 administrative assessment fee)

- 100 to 200 hours of community service

- Domestic violence counseling for at least 1 ½ hours per week for 6 to 12 months at the patient's expense

Third-time BDV in the last seven years*

(Category C felony)

- 1 to 5 years in Nevada State Prison

- Up to $10,000 (the judge has discretion over whether to impose a fine)

BDV with strangulation

(Category C felony)

- 1 to 5 years in Nevada State Prison

- Up to $15,000

BDV resulting in substantial bodily harm but with no deadly weapon

(Category C felony)

- 1 to 5 years in Nevada State Prison

- Up to $10,000

BDV with deadly weapon but no substantial bodily harm

(Category B felony)

- 2 to 10 years in Nevada State Prison

- Up to $10,000

BDV with deadly weapon and substantial bodily harm

(Category B felony)

- 2 to 15 years in Nevada State Prison

- Up to $10,000

*There was no strangulation, deadly weapons, nor substantial bodily harm to the victim.

~A standard penalty in any type of Nevada BVD case is that the defendant is forbidden from picking up any new arrests or citations (other than minor traffic tickets) while the BDV case is still open.

^Any jail time may be served intermittently if the judge approves it as long as each period of incarceration spans at least four consecutive hours.

The majority of Nevada "battery domestic violence" cases do not go to trial but are instead resolved with a negotiation ("plea bargain"). A common plea bargain for a first-time misdemeanor "battery domestic violence" case is Nevada is when the defendant pleads guilty to BDV in exchange for the "minimum penalties," consisting of:

  • $348 fine,

  • 48 hours of community service,

  • domestic violence counseling (at the defendant's expense, usually around $800), and

  • a 6 month suspended jail sentence that will not be imposed as long as the defendant stays out of trouble until the case is closed and completes the other sentencing terms

The benefit of this negotiation is that the defendant avoids the time, expense, and uncertainty of trial. And although the accused has to plead to a BDV conviction, the penalties are usually far less than what he/she would face if found guilty at trial.3

4. Charge reductions and case dismissals in Nevada "battery domestic violence" cases

It is actually easier in Nevada to have a first-degree murder charge reduced to second-degree murder than it is to have a misdemeanor "battery domestic violence" charge reduced to simple battery. That is because there is a specific provision of Nevada law that prohibits prosecutors from dismissing or reducing BDV charges to a lesser offense unless the state's evidence is clearly too weak to support a guilty verdict at trial. Therefore, the criminal defense attorney's primary job to show the prosecutor that their evidence is too weak to sustain a BDV conviction.

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"Battery domestic violence" charges may not be reduced or dismissed in Nevada unless the court is convinced that the D.A.'s case is too weak to sustain a guilty verdict.

As explained above in question 2, a criminal defense attorney will intensively investigate every aspect of a BDV case in an effort to poke holes in the state's arguments and produce exculpatory evidence (evidence that suggests the accused is innocent). If the criminal defense attorney can show the D.A. that the state's evidence is too insufficient, unreliable, or inadequate to carry a BDV conviction, the prosecutor may be willing to dismiss the charge or reduce it to a lesser misdemeanor charge such as the Nevada crime of battery or the Nevada crime of breach of peace.

In sum, it is certainly possible to negotiate a charge reduction or dismissal in Nevada "battery domestic violence" cases. Just note that it is an uphill battle that requires copious investigation and negotiation.4

5. Probation for "battery domestic violence" in Nevada

It is against Nevada law for courts to grant probation for defendants convicted of "battery domestic violence" in Nevada. However, judges have the option to "suspend" the accused's jail sentence in misdemeanor BDV cases as long as the accused completes a course of drug or domestic violence counseling. Pahrump domestic violence attorney Neil Shouse explains this probation-like concept:

Example: Henry gets convicted at trial in Mesquite of first-time misdemeanor BDV, which carries a maximum six-month jail sentence. During his sentencing, Henry shows remorse to the judge, and Henry's attorney points out that Henry has no prior criminal record. So the judge decides to give Henry a break by granting him a "suspended" six-month jail term in exchange for Henry participating in twenty-six weeks of BDV counseling.

If Henry finishes the counseling requirement, the judge will not send him to jail. But if Henry does not finish counseling, the court may "un-suspend" the jail term and order him to serve the six months at the Clark County Detention Center.

In the above example, Henry missing just one counseling class is sufficient for the judge to un-suspend his jail sentence. So people with suspended BDV sentences have to be very careful because just one mistake can result in the court imposing jail.5

6. Hiring an attorney to appear for a "battery domestic violence" defendant in Nevada

People facing charges for "battery domestic violence" in Nevada are required to be present for all of their case's court appearances unless they retain private counsel to represent them. Once a BDV defendant retains an attorney, the attorney can go to most...if not all...of the court appearances without the defendant ever having to show up.

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Defendants facing misdemeanor charges of "battery domestic violence" in Nevada may not have to appear in court if they hire an attorney (unless the case goes to trial).

People accused of misdemeanor battery domestic violence in Nevada may never have to appear in court at all as long as they have an attorney go in their place. It is usually not required for defendants to personally appear at Nevada arraignments or status checks. Judges do like it if defendants show up to their Nevada sentencing hearings if there is a plea deal, but even then it may be possible for defendants to fill out a "written entry of plea" in lieu of showing up to court. If the case goes to trial however, the defendant will have to be present.

Meanwhile, people accused of felony "battery domestic violence" in Nevada may be able to stay home from most court appearances if they have an attorney. But the defendant's presence is usually required at Nevada preliminary hearings, Nevada sentencings, and of course trials.

Note that if a Nevada BDV defendant does not hire an attorney and misses a court appearance, the judge will issue a Nevada bench warrant. That means the defendant can be arrested at any time and brought into court to answer for the charges. Additionally, prosecutors can charge no-shows with the additional Nevada crime of failure to appear, which carries up to 4 years in Nevada State Prison. So if a defendant thinks he/she will not be able to come to a court appearance, it is important he/she have an attorney to appear on his/her behalf.6

7. "Battery domestic violence" trials in Nevada

The vast majority of Nevada "battery domestic violence" cases do not go to trial. They are usually resolved through a plea bargain or (in lucky cases) a dismissal, as explained above in questions 3, 4, and 5. But if the prosecutor refuses to offer a fair negotiation, the defendant may choose to exercise his/her right to have a trial.

Note that a person facing only a misdemeanor "battery domestic violence" charge is entitled to a Nevada bench trial but not a jury trial. A bench trial is where the judge instead of a jury decides the verdict. But people facing a felony "battery domestic violence" charge can choose to have either a bench trial or a Nevada jury trial. People facing Nevada BDV charges should discuss with their attorney the pros and cons of going to trial, and whether the risks outweigh the benefits.7

8. When "victims" recant "battery domestic violence" allegations in Nevada, the D.A. still pursues the charges

It is very common after "battery domestic violence" arrests in Nevada for the purported victims to admit that they falsely accused the defendant or that they just want the charges dismissed so that they can get on with their lives. But a recanting "victim" usually has no effect on whether a criminal case goes forward...

In practice, prosecutors assume that initial accusations made by a purported victim to the police are truthful. Then when the purported victim recants his/her BDV allegations, prosecutors suspect that the purported victim has ulterior motives, including:

  • The purported victim reconciled his/her relationship with the accused

  • The purported victim is fearful of testifying as a witness at trial

  • The accused is the breadwinner, and the purported victim needs the accused out of jail so he/she can keep financially supporting them.

  • The purported victim is afraid that the accused's friends and family (or even the accused him/herself if out of custody) may attempt to harm the purported victim out of revenge for continuing to help the police.

In short, a recanting "victim" usually does not stop a Nevada BDV charge from going forward. Las Vegas domestic violence attorney Michael Becker gives an example:

Example: LVMPD responds to a 911 call where Steve claims his estranged wife Jodie cut him, and he shows the police the knife wounds as proof. So the cops arrest Jodie for BDV, and the Clark County D.A. files charges. But shortly afterwards Steve and Jodie patch things up, and Steve tells prosecutors that he self-inflicted his stab wounds in order to get Jodie into trouble.

In the above example, chances are the prosecutor will pursue the BDV case and leave it to the judge or jury to determine what happened. Steve coming clean will probably not get Jodie's case dismissed, at least not initially.

8.1 What evidence other than "victim testimony" is admissible in Nevada BDV cases?

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The D.A. may still be able to prosecute "battery domestic violence" cases in Nevada even if the alleged victim takes back his/her story.

Often Nevada prosecutors believe their case is strong enough to prove a "battery domestic violence" charge even without "victim" testimony. So if an alleged victim recants, prosecutors may rely on such as evidence as the following:

  • Witness testimony (if other people were present at the incident)

  • Medical records of the alleged BDV injuries

  • Expert medical testimony claiming that the alleged victim's injuries were not self-inflicted
  • Statements uttered by the alleged victim at the time of the alleged incident (unless they are excluded by the Rules of Evidence).

In fact, prosecutors may choose to call a recanting "victim" to testify at a Nevada BDV trial just so that the prosecutor can impeach his/her credibility on the stand. North Las Vegas domestic violence attorney Michael Becker shows how "prior inconsistent statements" made by a victim can be used as evidence that "battery domestic violence" occurred:

Example: Leland was charged with BDV for punching his brother Robbie. At trial in North Las Vegas Justice Court, Robbie admits he made up the story about Leland punching him because he was angry at Leland for stealing his girlfriend. The next witness the prosecution calls is Robbie's neighbor, who claims that Robbie told him after the arrest that Leland had punched him because Robbie wouldn't lend him money. When rendering a verdict, the judge will consider Robbie's testimony as well as his "prior inconsistent statement" to Robbie's neighbor.

Note that "prior inconsistent statements" can come from various sources. Like in the above example, it can be a third-party who heard the alleged victim say he/she was abused. Prior inconsistent statements may also be found in 911 call recordings or "victim" statements made to the police who arrived at the scene.

That being said, sometimes the alleged victim is the only real evidence a prosecutor has in a Nevada BDV case. And if that alleged victim fails to cooperate with the state, then prosecutors may have no choice but to drop the case or reduce the charge to a more minor offense.

8.2 Can "victims" in Nevada BDV cases go to jail for recanting?

In theory, yes; the D.A. may press charges against accusers for making false BDV allegations in Nevada. But in practice, it does not happen all the time. If it does, false accusers may be prosecuted for the Nevada crime of making a false police report. It is a misdemeanor carrying up to 6 months in jail and/or up to $1,000 in fines.

8.3 Can "victims" in Nevada BDV cases go to jail for not showing up to trial?

When prosecutors subpoena an alleged victim to testify at BDV trial and he/she no-shows, the judge may issue a Nevada bench warrant. That means police may arrest the alleged victim and haul him/her into court, and the judge may punish him/her with jail and/or a fine.

In reality however, judges infrequently issue bench warrants to alleged victims who fail to appear at trial in Nevada. At that point either the trial goes on without the alleged victim's testimony, or the prosecutor drops the BDV charges. Learn more in our article about how to quash Nevada bench warrants. 8

9. Restraining orders in Nevada "battery domestic violence" cases

Many of the people facing "battery domestic violence" charges in Nevada also have restraining orders against them mandating that they avoid contact with the alleged victim. In some cases, the accused may also have to surrender his/her firearms while the restraining order is active. Nevada recognizes two kinds of restraining orders:

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Many people accused of "battery domestic violence" have restraining orders taken out against them as well.
  1. Temporary protective orders (TPOs): The maximum duration is one month.
  2. Extended protective orders: The maximum duration is one year.

Note that judges typically grant TPOs on an emergency basis without hearing the accused's side of the story. Afterwards, the accused may request a hearing in order to contest the TPO. Henderson domestic violence attorney Neil Shouse explains this common scenario:

Example: Henderson couple George and Brian have broken up and are arguing over who gets to stay in their apartment. As a ploy to keep Brian from coming back to the apartment, George petitions the court for a temporary restraining order on grounds that George fears for his life around Brian. In response, Clark County Family Court issues a TPO immediately. Brian then requests a hearing that week to tell his side of the story and counter George's claims. If the court finds for Brian, it will drop the TPO.

Also note that violating a protective order in Nevada is a misdemeanor crime in itself. The punishment carries up to $1,000 in fines and/or up to 6 months in jail.9

10. Losing "child custody" over Nevada "battery domestic violence" charges

A "battery domestic violence" charge alone may not cause the accused to lose custody of or access to his/her kids. But Nevada BDV cases often involve a restraining order, and the judge may very well require that the accused have no or limited access to his/her minor children while the criminal case is pending. And if the accused later enters a child custody dispute, the family courts may decide that it is not in "the best interest of the child" for someone with a BDV conviction to have child custody. That is why it is of vital important for parents accused of BDV in Nevada to retain counsel to help foreclose the possibility of losing their kids down the line.10

11. Extradition to Nevada in "battery domestic violence" cases

People suspected of "battery domestic violence" in Nevada but who have left the state may be hauled back into Nevada by police in order to face the BDV charges. Under this process of Nevada extradition law, anyone who leaves Nevada with unresolved criminal charges risks being brought back by force. In reality, defendants facing felony BDV charges are much more likely to be extradited to Nevada than defendants facing only misdemeanor BDV charges (but it is still possible).

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Fugitives from Nevada facing felony "battery domestic violence" charges are more likely to be sought for extradition than those facing misdemeanor charges.

Once a person suspected of committing the Nevada crime of "battery domestic violence" gets arrested in another state, the accused has two options:

  1. Waive extradition and willingly return to Nevada. In practice, the accused may still have to wait in an out-of-state jail for several weeks before Nevada law enforcement brings him/her back; or

  2. Fight extradition and remain out-of-state pending a court extradition hearing. At the hearing, the accused will either contest the extradition warrant or argue that he/she is not the correct person Nevada police is seeking. Sometimes the accused gets released on bail pending the hearing, or sometimes they remain in custody. It often depends on the holding state's law.

Carson City domestic violence attorney Michael Becker illustrates how extradition may operate in a "battery domestic violence" context:

Example: Shelly gets arrested in San Francisco for felony BDV stemming from an incident in Reno, Nevada. Since Shelly resides in California, she chooses to fight extradition in order to remain in her home state pending the court extradition hearing. During the hearing, Shelly's lawyer presents evidence that the Reno police apprehended the wrong person and that Shelly never traveled to Reno. If the judge buys the defense's argument, the judge will release Shelly from the San Francisco jail. If not, the judge will extradite Shelly to the Washoe County Detention Center to face Nevada BDV charges.

If Shelly in the above example wins her extradition hearing, her Nevada BDV charges may still stand. She could then hire a Nevada attorney to represent her and fight the Nevada BDV charges.11

12. How "battery domestic violence" affects immigration in Nevada

Unlike American citizens, foreigners convicted of "battery domestic violence" in Nevada may face deportation. In immigration law, "battery domestic violence" in Nevada is considered a "triple whammy" because it may trigger removal from the United States on three grounds:

  1. as a deportable offense in Nevada (regardless of whether the BDV charge is prosecuted as a misdemeanor or felony),
  2. as an aggravated felony (only if the BDV charge is prosecuted as a felony), and
  3. as a crime involving moral turpitude in Nevada (only if the BDV charge is prosecuted as a felony)

Therefore, the goal of Nevada criminal defense attorneys representing aliens on "battery domestic violence" charges is to try to get the charge dismissed or reduced to a "non-removable" offense. Any non-citizen facing Nevada BDV charges is strongly encouraged to seek out counsel who not only will fight to "get a good deal" but also will play the system in attempt avoid deportation. Read more at our information page on the criminal defense of immigrants in Nevada.12

13. Is "battery domestic violence" against federal law as well as Nevada law?

Yes, a person can face domestic violence charges in Nevada state court and/or federal court as well, but federal "battery domestic violence" law is a little different from Nevada's. Firstly, BDV goes by a different name in federal court: "Interstate domestic violence." And the scope of the federal law of "interstate domestic violence" is narrower than Nevada BDV law in two respects:

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Allegations of "interstate domestic violence" in southern Nevada are litigated in the Lloyd D. George Federal Courthouse.
  1. In Nevada, "battery domestic violence" can occur between spouses, significant others, relatives, and roommates. Under federal law, "interstate domestic violence" applies only to people who are married, dating, or sexually involved. So blood relatives and platonic cohabitants cannot be prosecuted for an act of domestic violence in federal court.
  2. In Nevada, state courts have jurisdiction over any alleged incident of BDV that occurs within the state. In contrast, federal courts in Nevada can hear domestic violence cases only if the matter involved interstate travel. Specifically, the federal crime of "interstate domestic violence" applies only if the accused traveled to or from Nevada or else caused the "victim" to travel to or from Nevada.

In sum, domestic violence is against both Nevada state law and federal law, but Nevada BDV law is much broader than federal interstate domestic violence law.13

14. Other Nevada crimes that may be charged with (or instead of) "battery domestic violence"

Domestic violence crimes in Nevada encompasses a wide array of Nevada offenses of which "battery domestic violence" is only one. Depending on the circumstances of the case, suspects may face charges for child abuse, elder abuse, stalking, or harassment in addition to (or instead of) BVD. These crimes are summarized below:

  • The Nevada crime of child abuse, neglect or endangerment involves harming or abandoning a child under eighteen (18) years old. Penalties turn on whether the abuse was sexual, whether the abuse resulted in substantial harm, and if the child was under fourteen.

  • The Nevada crime of elder abuse involves injuring, isolating or exploiting people aged sixty (60) or older. The penalty turns on whether bodily or mental harm occurred.

  • The Nevada crime of stalking involves a course of conduct that would make another person to reasonably fear for his/her safety. The sentence can range from fines to several years in prison depending on the severity of the accused's behavior.

  • The Nevada crime of harassment involves knowingly threatening someone with harm so that person reasonably fears the threat will be carried out. The sentence can range from fines to several years in prison depending on the severity of the accused's behavior.

Note that prosecutors will charge a BDV suspect with the Nevada crime of attempted murder if they believe the accused meant to kill the "victim." And if the "victim" dies, the case turns into a "domestic homicide" incident where accused faces charges for the Nevada crime of murder.14

15. When and how to seal criminal records in "battery domestic violence" cases in Nevada

People with past BDV arrests or convictions often face discrimination from potential employers: Business owners and hiring managers frequently pass over otherwise qualified job applicants solely because of their criminal history. Furthermore, having a BDV on one's record can be socially stigmatizing and alienating to family, friends, and community members. So anyone with a criminal record is encouraged to seal criminal records for battery domestic violence in Nevada as soon as possible so that it no longer comes up on background checks.

The waiting period to get a "battery domestic violence" criminal record sealed in Nevada depends on two things:

  1. whether the accused was ultimately convicted of battery domestic violence, and
  2. whether the "battery domestic violence" charge was prosecuted as a misdemeanor, category C felony, or a category B felony.

If a battery domestic violence case in Nevada gets completely dismissed, and the accused does not get convicted of anything, then he/she is free to pursue a record seal immediately.

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Sealing "battery domestic violence" criminal records in Nevada can greatly increase the person's employment prospects.

If the accused gets convicted of misdemeanor "battery domestic violence" in Nevada, he/she needs to wait seven (7) years after the case is closed before pursuing a record seal.

If the accused gets convicted of category C "battery domestic violence" in Nevada, he/she needs to wait twelve (12) years after the case is closed before pursuing a record seal. (Recall that category C "battery domestic violence" charges comprise incidents involving strangulation, or substantial bodily harm with no deadly weapon, or a third-time BDV case within seven years of the first.)

If the accused gets convicted of category B "battery domestic violence" in Nevada, he/she needs to wait fifteen (15) years after the case is closed before pursuing a record seal. (Recall that category B "battery domestic violence" charges comprise incidents involving deadly weapons.)

Note that if the accused agrees to a plea deal whereby his/her BDV charge gets reduced to a lesser misdemeanor charge in Nevada such as battery or breach of peace, the accused would have to wait only two (2) years before getting that lesser misdemeanor record sealed.

Type of Nevada “battery domestic violence” (BDV) charge

Waiting period to seal criminal record

Charge dismissed: No BDV conviction

No waiting period. Record sealing can occur immediately.

Misdemeanor: A first- or second-time BDV conviction within seven years and involving no deadly weapon, substantial bodily harm nor strangulation

Seven (7) years from the time the case was closed.

Category C: A third-time BDV within seven years; or a BDV involving strangulation; or a BDV involving substantial bodily harm but no deadly weapons

Twelve (12) years from the time the case was closed.

Category B: A BDV involving deadly weapons

Fifteen (15) years from the time the case was closed.

The process of getting a Nevada "battery domestic violence" charge sealed varies from court to court, but it is always a multi-step, confusing and frustrating ordeal. It requires ordering a copy of criminal records, getting approval for the record seal from the prosecutor, petitioning the court, retrieving a court order, mailing the court order to multiple government agencies, and possibly having a court hearing. People can attempt to navigate the process themselves, but it is suggested they hire an attorney to take care of it for them. For more general information on record seal procedures in Nevada as well as links to various Nevada courts' record seal handbooks, refer to our article on sealing Nevada criminal records.15

16. How California's "battery domestic violence" laws differ from Nevada's

Whereas Nevada has only one statute outlawing "battery domestic violence" (NRS 200.485), California has two separate statutes:

  1. California Penal Code 243(e)(1) pc prohibits battery between spouses, dating partners, relatives or roommates irrespective of whether injury occurred. Called "domestic battery," this California charge is prosecuted as a misdemeanor and carries a maximum fine of $2,000 and/or a maximum sentence of 1 year in jail.

  2. California Penal Code 273.5 pc prohibits causing a visible injury ("traumatic condition") on a current or former spouse, dating partner, cohabitant, or co-parent. Called "corporal injury to a spouse or cohabitant," this California charge can be prosecuted as either a misdemeanor or felony and carries up to four years in prison.

Note that past domestic violence convictions from California or other states may count as a prior BDV offense for people who pick up new BDV charges in Nevada. So if someone was arrested for and convicted of "domestic battery" in Los Angeles within the last seven years and then gets arrested in Las Vegas today for "battery domestic violence," Nevada law will treat that new BDV charge as a second-time offense. And as explained above, penalties grow harsher for each successive BDV offense within a seven-year period.16

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"Battery domestic violence" is a relatively recent offense in Nevada.

17. Brief legal history of "battery domestic violence" laws in Nevada

It was only during the height of the women's liberation movement that the plight of victims of domestic violence attracted large-scale attention from government. The first time the Nevada Legislature addressed domestic violence issues was the late 1970s:

  • 1979 - The Nevada Legislature passed A.B. 479, which provided for temporary restraining orders (TPOs) in some domestic violence situations.

  • 1981 - The Nevada Legislature passed S.B. 371, which created domestic violence county advisory boards.

  • 1983 - The Nevada Legislature passed S.B. 426, which concerned money allotments for domestic violence organizations.

  • 1984 - The Nevada Supreme Court chief justice closed the courts for a day so judges could receive domestic violence training.

  • 1985 - The Nevada Legislature passed three bills: S.B. 383, which increased the courts' jurisdiction to issue domestic violence-related TPOs; A.B. 652, which allowed police to make night arrests for battery on a spouse that causes bodily injury; and A.B. 229, which permitted warrantless arrests in domestic violence cases.

  • 1987 - The Nevada Legislature passed A.B. 412, which granted judges more discretion in handing down domestic violence sentences.

  • 1989 - The Nevada Legislature passed two bills: A.B. 514, which increased county funds for assisting domestic violence victims; and A.B. 69, which spelled out the elements a police officer should consider when determining which party in a domestic violence incident was the primary physical aggressor.

  • 1993 - The Nevada Legislature passed A.B. 637, which allowed courts to hear evidence and expert testimony regarding domestic abuse syndrome (a.k.a. battered person's syndrome) in some situations; and A.B. 540, which created more precise rules for issuing domestic violence TPOs.

  • 1995 - The Nevada Legislature passed three bills: S.B. 228, which spelled out more provisions regarding domestic violence protective orders; A.B. 395, which gave courts the rebuttable presumption that it is not in the best interest of the child to award child custody to a perpetrator of domestic violence or former spouse convicted of sexual assault; and A.B. 378, which increased the pool of parties who can be criminally liable for domestic violence to include dating partners...the bill also ordered courts to be available 24/7 to issue TPOs.

  • 1997 - The Nevada Legislature passed eight domestic violence-related bills: S.B. 402, S.B. 387, S.B. 377, S.B. 155, A.B. 370, A.B. 348, A.B. 170, and A.B. 110. Collectively, they instituted or updated laws regarding bail, judicial authority, punishments, a missing persons repository, arrest procedures, and medical expense reimbursements.

  • 2005 - The Nevada Legislature passed A.B. 219, which created the Nevada Council for the Prevention of Domestic Violence in order to help prevent and extinguish domestic violence in Nevada.

  • 2009 - The Nevada Legislature passed A.B. 164, which reclassified "battery domestic violence" with strangulation from a misdemeanor to a felony.

The Nevada Attorney General's Domestic Violence Resource Manual provides a detailed overview of Nevada "battery domestic violence" laws. 17

18. Resources for victims of "battery domestic violence" in Nevada

Nevada Network Against Domestic Violence (NNADV) - This statewide organization coordinates networking meetings, provides advocacy training, and educates people on domestic violence issues.

Safe Nest - Nevada's biggest domestic violence charity. It offers shelter, counseling, advocacy, and prevention services.

S.A.F.E. House - A non-profit that also provides shelter, counseling, advocacy, and prevention services.

Have you been arrested for "battery domestic violence" in Nevada? Call us for help...

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

If you or a loved one is facing charges for "battery domestic violence" in Las Vegas or elsewhere in Nevada, call our Las Vegas domestic violence lawyers at 702-DEFENSE (702-333-3673) for a FREE consultation. Our six-attorney team meticulously investigates every case to find weaknesses in the state's evidence and negotiates with prosecutors to try to achieve a charge reduction or dismissal. And if necessary, our team can litigate the matter all the way to trial in pursuit of a "not guilty" verdict.

We represent clients throughout Nevada, including Las Vegas, Henderson, Washoe County, Clark County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Moapa Valley, Overton, Jean, Elko, Pahrump, Searchlight, Beatty, and Tonopah.

¿Habla español? Visita nuestra página web en español sobre las leyes contra la violencia doméstica de la batería Nevada.


Legal References:

  1. NRS 200.481; NRS 33.018;18 U.S.C. § 2261; NRS 200.485 Battery which constitutes domestic violence: Penalties; referring child for counseling; restriction against dismissal, probation and suspension; definitions.

    1.  Unless a greater penalty is provided pursuant to subsection 2 or NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018:

    (a) For the first offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

    (1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and

    (2) Perform not less than 48 hours, but not more than 120 hours, of community service.

    -> The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur at a time when the person is not required to be at his or her place of employment or on a weekend.

    (b) For the second offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

    (1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and

    (2) Perform not less than 100 hours, but not more than 200 hours, of community service.

    -> The person shall be further punished by a fine of not less than $500, but not more than $1,000.

    (c) For the third and any subsequent offense within 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

    2.  Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018, if the battery is committed by strangulation as described in NRS 200.481, is guilty of a category C felony and shall be punished as provided in NRS 193.130 and by a fine of not more than $15,000.

    3.  In addition to any other penalty, if a person is convicted of a battery which constitutes domestic violence pursuant to NRS 33.018, the court shall:

    (a) For the first offense within 7 years, require the person to participate in weekly counseling sessions of not less than 1 1/2 hours per week for not less than 6 months, but not more than 12 months, at his or her expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

    (b) For the second offense within 7 years, require the person to participate in weekly counseling sessions of not less than 1 1/2 hours per week for 12 months, at his or her expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

    -> If the person resides in this State but the nearest location at which counseling services are available is in another state, the court may allow the person to participate in counseling in the other state in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

    4.  An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.

    5.  In addition to any other fine or penalty, the court shall order such a person to pay an administrative assessment of $35. Any money so collected must be paid by the clerk of the court to the State Controller on or before the fifth day of each month for the preceding month for credit to the Account for Programs Related to Domestic Violence established pursuant to NRS 228.460.

    6.  In addition to any other penalty, the court may require such a person to participate, at his or her expense, in a program of treatment for the abuse of alcohol or drugs that has been certified by the Division of Public and Behavioral Health of the Department of Health and Human Services.

    7.  If it appears from information presented to the court that a child under the age of 18 years may need counseling as a result of the commission of a battery which constitutes domestic violence pursuant to NRS 33.018, the court may refer the child to an agency which provides child welfare services. If the court refers a child to an agency which provides child welfare services, the court shall require the person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018 to reimburse the agency for the costs of any services provided, to the extent of the convicted person's ability to pay.

    8.  If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial. A court shall not grant probation to and, except as otherwise provided in NRS 4.373 and 5.055, a court shall not suspend the sentence of such a person.

    9.  As used in this section:

    (a) “Agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.

    (b) “Battery” has the meaning ascribed to it in paragraph (a) of subsection 1 of NRS 200.481.

    (c) “Offense” includes a battery which constitutes domestic violence pursuant to NRS 33.018 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct.

  2. Runion v. State, 116 Nev. 1041, 1046, 13 P.3d 52, 55 - 56 (2000) ("At common law, an individual had a right to defend himself against apparent danger to the same extent as if the danger had been real, provided he acted upon a reasonable apprehension of danger.");

    Wikipedia article on battered person syndrome; NRS 200.485.

  3. NRS 200.485.

  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. See NRS 51.035, NRS 51.069; NRS 207.280; some statements made by an accuser are not admissible as evidence unless the accuser is unavailable to testify at trial and the defendant had the opportunity to cross-examine the accuser. Wikipedia article on Crawford v. Texas 541 U.S. 36 (2004).
  9. NRS 33.017.
  10. NRS 125C.230.
  11. NRS 179.177 - 179.235.
  12. 22 CFR 40.21; 8 USC § 1227; U.S. v. Jimenez, 258 F.3d 1120, 1125 -1126 (C.A.9 (2001) ("An aggravated felony, as used in the Sentencing Guidelines, is defined as a "crime of violence ... for which the term of imprisonment is at least one year.")
  13. U.S. Code 110A.
  14. NRS 33.018.
  15. NRS 179.245.
  16. California Penal Code 243(e)(1) PC; California Penal Code 273.5 PC; NRS 200.485.
  17. Nevada Legislature Law Library.

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