Federal law levies harsh punishments for drug-related drive-by shootings. Penalties include fines and possibly decades in prison.
This page explains the federal crime of drive-by shootings in Nevada. Keep reading for more about what constitutes drive by-shootings, ways our Las Vegas criminal defense attorneys defend against allegations of it, and how convictions are punished.
The legal definition of a "drive-by shooting" under federal law is when all the following conditions are true:
- the defendant fires a weapon from a vehicle into a group of two or more people
- the defendant has intent to intimidate, injure, harass or maim
- the shooting is done in furtherance of or to escape detection of a major drug offense
- the shooting causes grave risk to human life or kills someone
Therefore, a drive-by shooting under federal law requires that the action be related to a "major drug offense." Elko NV criminal defense attorney Michael Becker explains:
Example: Stan is smoking a joint while driving his car through Henderson. At a stop, he sees two cops on a sidewalk staring at the joint. Stan shoots at them and drives away. If caught, the U.S. Marshals Service could book Stan at the Henderson NV Detention Center on federal charges of attempted murder but not for a drive-by shooting because smoking a joint is not a "major drug offense."
If Stan were trafficking drugs, conspiring to distribute drugs, or working as part of a drug ring, then he could be convicted of drive-by shooting in federal court. But minor drug offenses do not implicate federal drive-by shooting law in Nevada.
Nevada law for drive-by shootings (NRS 202.287)
In Nevada, a person can be convicted for a drive-by shooting merely by shooting a firearm from a car irrespective of whether drugs were involved or whether the defendant shot into a group of two or more people. The only requirement is that the defendant shoot the gun "maliciously" or "wantonly." Therefore, Nevada law is much broader than federal law for drive-by shootings. Learn more about the Nevada offense of drive-by shootings.
A drive-by shooting under federal law is an extremely narrow crime with very specific elements. This may work in the defendant's favor because prosecutors have a harder time proving that the defendant's behavior falls within the bounds of the crime. The following are common defenses to drive-by shooting allegations in Nevada Federal Court:
- No major drug crime was involved. Federal drive-by shooting charges apply only if the defendant was perpetrating a serious drug crime. If the defense attorney can show that any shooting was unrelated to drug activity, the defendant is not criminally liable for a drive-by shooting in federal court. However, the defendant may still face homicide charges.
- No one's life was threatened. A person may be convicted of a drive-by shooting under federal law only if the shooting caused a "grave risk" to human life. If the defense attorney can demonstrate that the defendant's actions did not threaten anyone's life, then the charge should be dropped.
- There was no intent to harm or harass. 18 U.S.C. § 36 is not meant to punish accidental shootings or killings done by errant bullets. The prosecutor needs to prove that the defendant had intent to intimidate, harass, injure, or maim by shooting the gun in order for him/her to be found guilty. If the defendant's actions were accidental, then it is not a drive-by shooting under federal law.
- There is insufficient evidence. Drive-by shootings often happen very quickly and in the dark. Therefore it is very difficult for the U.S. Attorney's Office to compile reliable evidence to prove beyond a reasonable doubt that the defendant was responsible for the shooting. If the defense attorney can poke enough holes in the prosecution's case by questioning the identity of the shooter and the eyewitness accounts, then the case may be dismissed for lack of proof.
The punishment for a drug-related drive-by-shooting under federal law depends on whether there are any victims. If the shooting presents a "grave risk" to human life but no one ultimately gets killed, then the maximum sentence in Nevada is:
- twenty-five years in Federal Prison, and/or
- a fine
But if someone gets killed by the drive-by-shooting, the defendant faces a sentence of:
- capital punishment in Nevada or up to a life sentence in Federal Prison, and/or
- a fine
Note that the judge may impose the death penalty only if the court determines that the killing was "first-degree murder." If the court determines the killing was "second-degree," the court can impose only prison. To learn about the difference between first- and second-degree murder in Nevada, read our article on Nevada murder law.
Also note that people charged with committing a drive-by shooting under federal law are usually charged with related crimes. These charges typically involve illegal drugs and illegal possession of firearms.
Nevada state law penalties (NRS 202.287)
The punishment for violating Nevada state drive-by shooting law depends on the location of the vehicle. If the car is not within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, a drive-by shooting is a misdemeanor in Nevada carrying:
- up to six months in jail such as Clark County Detention Center, and/or
- up to $1,000 in fines
Otherwise, if the car is in an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, a drive-by shooting is prosecuted as a category B felony in Nevada, punishable by:
- two to fifteen years in Nevada State Prison, and/or
- up to $5,000 in fines
Note that all federal cases in Nevada are handled in either the Lloyd D. George Federal Courthouse in Las Vegas, or the Bruce R. Thompson Federal Courthouse in Reno. In contrast, state law cases are heard in local county courthouses in Nevada.
Charged? Call us . . . .
If you have been arrested for a "drive-by shooting" in Nevada under 18 U.S.C. § 36, contact our Nevada federal criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free consultation. We might be able to get the case dropped or the charges lessened. Alternatively, we can take your case to trial in pursuit of a full acquittal.