NRS § 200.481 sets forth the Nevada crime of battery with a deadly weapon. This is a category B felony carrying a prison term of two to 15 years if the victim sustained substantial bodily harm. If there were no major injuries, the maximum sentence is 10 years. The court can also impose a fine of up to $10,000.
Many defenses could get “battery with a deadly weapon” charges dismissed or reduced to misdemeanor battery, such as:
- you acted in lawful self-defense;
- the incident was an accident; or
- there was no deadly weapon involved.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is battery with a deadly weapon in Nevada?
- 2. What are the penalties?
- 3. How do I fight the charges?
- 4. Will I be deported?
- 5. When can I get a record seal?
- 6. How is assault with a deadly weapon different?
1. What is battery with a deadly weapon in Nevada?
To be convicted of battery with a deadly weapon in Nevada, prosecutors must prove the following two elements:
- You intentionally inflicted unlawful physical force on another person (examples include hitting, shooting, or stabbing); and
- You used a deadly weapon to inflict the illegal physical contact.1
Deadly weapons include inherently dangerous weapons such as guns or knives as well as ordinary objects used in a deadly way.2 Examples include:
- striking someone with a brick
- slicing someone with broken glass
- impaling someone with an ice pick
Note that if prosecutors believe you actually intended to kill the victim, then they would bring charges for attempted murder instead of a battery case.
2. What are the penalties?
In Nevada, battery with a deadly weapon is a category B felony. If the victim sustained substantial bodily injury, the sentence is:
- 2 to 15 years in prison, and
- up to $10,000 (at the judge’s discretion).
If the victim did not sustain substantial physical harm, then Nevada’s punishment for battery with a deadly weapon is:
- 2 to 10 years in prison, and
- up to $10,000 (at the judge’s discretion).3
Note that the penalties for battery with a deadly weapon are the same whether the incident involves domestic violence.
2.1. Lesser included offenses
If Nevada prosecutors cannot prove that a deadly weapon was involved, then they should reduce to charge to a lesser battery charge:
Battery not involving a deadly weapon
|Battery with substantial bodily harm or strangulation||Category C felony |
|Simple battery (no substantial bodily harm or strangulation)||Misdemeanor |
|Simple battery against a police officer, health care provider, transit operator, sports official, taxi driver, or school employee.||Gross misdemeanor |
3. How do I fight the charges?
Three common defense strategies to Nevada charges of battery with a deadly weapon (BDW) are:
- You acted in lawful self-defense or defense of others. Nevada law permits you to fight back against assailants with proportional physical force. As long as you acted as a reasonable person would in your situation, the charges should be dropped.
- You had no criminal intent. For example, if someone trips and the gun in their belt holster goes off accidentally, no criminal battery occurred because there was no intent to touch anyone. No crime occurred unless the D.A. can prove beyond a criminal doubt that you acted deliberately.
- There was no use of a deadly weapon. Merely carrying a deadly weapon or having one in the vicinity does not turn a simple battery charge into a battery with a deadly weapon. Unless a deadly weapon was used, BDW charges do not apply:
Example: Jeffrey and Max get into an argument, and Jeffrey slaps Max across the face. Max wants Jeffrey charged with BDW because Jeffrey carries a knife on his belt. Though since all Jeffrey did was slap Max, he committed only “simple battery.”
4. Will I be deported?
Battery with a deadly weapon is a crime of moral turpitude and an aggravated felony. Therefore, non-citizens convicted of BDW will likely face deportation, especially if the deadly weapon was a firearm.5
Immigrants facing criminal charges should always seek out experienced legal counsel as soon as possible. They may be able to get the charges dismissed or changed to a non-deportable offense.
5. When can I get a record seal?
A conviction for battery with a deadly weapon must remain on your record for 10 years before you can petition for a Nevada record seal. Though if the charge gets dismissed, then you can pursue a record seal immediately.6
6. How is assault with a deadly weapon different?
In Nevada, assault with a deadly weapon (ADW) is like an attempted battery with a deadly weapon (BDW).
Whereas battery is making physical contact with someone in an unlawful way, assault involves no physical contact at all. Instead, assault is putting someone in reasonable apprehension of immediate bodily harm.
Example: Jeffrey holds up his knife, causing Max to fear he is about to be stabbed. Here, Jeffrey could be charged only with assault with a deadly weapon. He would not face battery with a deadly weapon charges as long as no physical contact is made.
Assault with a deadly weapon is a category B felony in Nevada carrying:
- 1 to 6 years in prison and/or
- up to $5,000
ADW carries lesser penalties than BDW because there is no physical contact.7