Wobbler crimes in Nevada are attempts to commit a category C felony, category D felony, or category E felony. The judge determines whether to treat wobblers as either a felony or a gross misdemeanor.
While any criminal conviction is never good news, gross misdemeanors are much better than felonies in Nevada. Gross misdemeanors carry less of a social stigma, have laxer punishments, and can be sealed years before felony criminal records can (in most cases).
Anyone accused of a wobbler crime is entitled to a trial by jury. Depending on the nature of the offense, a wobbler conviction can cause an immigrant defendant to get deported.
In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions on what wobblers are and how they can help defendants achieve reduced charges and laxer penalties. Click on a topic to go to that section:
- 1. What are “wobblers” in Nevada?
- 2. What are the penalties for “wobblers” in Nevada?
- 3. How do defendants get “wobbler” offenses treated as gross misdemeanors?
- 4. Can I get a jury trial?
- 5. Can I get a wobbler sealed?
- 6. Can I get deported?
1) What are “wobblers” in Nevada?
Wobblers are a class of Nevada offenses where a person allegedly attempts to commit a category C, D, or E felony.
Like it sounds, an attempt crime is taking decisive actions in furtherance of criminal activity but falling short of carrying it out. For example, a drug dealer who verbally agrees to sell someone Xanax can be prosecuted for attempted drug selling even if the buyer backs out last minute.
Wobblers get their name because Nevada judges have the discretion to treat them as either a felony or a gross misdemeanor. Felonies are the most serious class of Nevada crime, while gross misdemeanors are the next less serious. (The least serious Nevada offenses are misdemeanors, though no wobblers may become misdemeanors.)
Some of the most common wobbler crimes include:
- attempted battery (causing substantial bodily harm without a deadly weapon)
- attempted violation of a protective order
- attempted drug sale (first offense for schedule III, IV or V drugs)
- attempted drug possession for sale (first offense)
- attempted arson (third degree)
- attempted drug possession (first offense)
2) What are the penalties for “wobblers” in Nevada?
Wobbler punishments in Nevada vary depending on whether the defendant was accused of attempting a category C, D or E felony.
Category C felonies:
People charged with attempting to commit a category C crime in Nevada may be convicted of either a category D felony or a gross misdemeanor. Category D felonies carry:
- 1 – 4 years in Nevada State Prison, and
- possibly up to $5,000 in fines.
Gross misdemeanors carry:
- up to 364 days in jail, and/or
- up to $2,000 in fines.
Category D felonies:
People charged with attempting to commit a category D crime in Nevada may be convicted of either a category E felony or a gross misdemeanor. Category E felonies carry probation and a suspended sentence, with a possible jail sentence of up to 1 year. (But if the defendant has two or more prior felony convictions, the court may order one to four years of Nevada State Prison and a maximum of $5,000 in fines.)
Gross misdemeanors carry:
- up to 364 days in jail, and/or
- up to $2,000 in fines.
Category E felonies:
People charged with attempting to commit a category E crime in Nevada may be convicted of either a category E felony or a gross misdemeanor. Category E felonies carry probation and a suspended sentence, with a possible jail sentence of up to 1 year. (But if the defendant has two or more prior felony convictions, the court may order one to four years of Nevada State Prison and a maximum of $5,000 in fines.)
Gross misdemeanors carry:
- up to 364 days in jail, and/or
- up to $2,000 in fines.
In sum
In short, wobblers are punished either as a category D felony, category E felony, or as a gross misdemeanor.
Example: Alex gets charged in Las Vegas Justice Court with attempting to sell Ambien (a category C felony), attempting to possess Ambien for the purpose of selling it (a category D felony), and attempting to possess Ambien (a category E felony). Since Alex is accused of attempted these three drug crimes without succeeding, his charges are considered “wobblers.”
Since selling Ambien is a category C felony, the judge may treat it as either a category D felony or as a gross misdemeanor. Since possessing Ambien for sale is a category D felony, the judge may treat it as either a category E felony or as a gross misdemeanor. And since selling Ambien is a category E felony, the judge may treat it as either a category E felony or as a gross misdemeanor.
Since Alex has no past criminal record and appears remorseful, the judge gives him a break and treats them all as gross misdemeanors. So in the end, Alex is convicted for three gross misdemeanors and faces up to 1,092 days in jail and/or up to $6,000 in fines (which is three times the penalty for a single gross misdemeanor).
If Alex in the above example had a lengthy criminal history prior to this case, the judge may not be so generous and instead insist he faces a category D sentence for selling Ambien and category E sentences for possessing the Ambien for sale and for personal use.
3) How do defendants get “wobbler” offenses treated as gross misdemeanors?
Nevada judges have discretion over whether a wobbler conviction is treated as a felony or a gross misdemeanor. The defense attorney’s job is to convince the judge that the defendant is worthy of the lesser conviction.
In making the case for a gross misdemeanor conviction, the defense attorney often highlights the following (if applicable):
- The defendant’s lack of a criminal history,
- The defendant’s poor physical or mental health,
- The defendant’s positive contributions to the community, and/or
- The defendant’s remorse
In many cases, the defense attorney can negotiate a plea deal where the defendant gets a gross misdemeanor conviction instead of a felony conviction. As long as the defense attorney and prosecution agree, it is likely the Nevada judge will rubber stamp it during the sentencing hearing.
4) Can I get a jury trial?
Yes. Anyone charged with a wobbler crime is entitled to a jury trial or a bench trial.
5) Can I get a wobbler sealed?
If and when a wobbler criminal record can be sealed in Nevada depends on the category of crime.
- A category D felony conviction may be sealed five (5) years after the case closes.
- A category E felony conviction may be sealed two (2) years after the case closes.
- A gross misdemeanor conviction may be sealed two (2) years after the case closes.
However, note that felony “crimes of violence” may not be sealed until after ten (10) years from when the case closes.
| Type of Nevada wobbler conviction | Waiting period to get a record seal |
|---|---|
| Category D felony | 5 years after the case closes |
| Category E felony
Gross misdemeanor |
2 years after the case closes |
| Violent felony | 10 years after the case closes |
Also note that some crimes can never be sealed, including:
- Sex crimes
- Offenses against children
- DUI felony convictions
Also note that wobbler crimes that result in a dismissal (which means there is no conviction) can be sealed right away without a waiting period.
6) Can I get deported?
Perhaps. Aliens in Nevada risk being removed from the U.S. if they get convicted of an aggravated felony or crime involving moral turpitude. Examples of wobblers that are deportable include:
- child pornography (using the internet to view pornography under NRS 200.727)
- theft or violent crime with a sentencing order of at least one (1) year
- soliciting a child for prostitution
- criminal gang recruitment
- third-degree arson
If an alien gets arrested in Nevada, it is imperative he/she seek legal representation as soon as possible. In some cases, the attorney will be able to get the charge either dismissed or changed to a non-deportable crime.
In California? See our page on wobblers in California law.