Drive-by shootings in Nevada carry harsh penalties even if no one gets hurt. Suspects are charged with the crime of shooting a gun from a car (NRS 202.287), which is typically a category B felony carrying one to 10 years in prison.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. How are drive-by-shootings prosecuted?
- 2. What are the penalties?
- 3. How can I fight the charges?
- 4. Will I be deported?
- 5. Is it a federal crime, too?
- 6. Related gun laws
1. How are drive-by shootings prosecuted?
No Nevada statute specifically addresses “drive-by shootings.” Instead, prosecutors charge suspected “drive-by shooters” with firing a gun from a structure or vehicle (NRS 202.287).
The most important element of this crime is that you act maliciously or wantonly. A classic example is a gang member driving by a rival gang’s turf and shooting at them before speeding off.
Meanwhile, it is not considered a violation of NRS 202.287 if you shoot the gun in just a negligent or accidental way.1
Example: Hillary, a diabetic, is driving down the Las Vegas Strip when she gets an attack. While frantically rummaging through her purse for medication, she accidentally causes her pistol to go off.
An officer from the Las Vegas Metropolitan Police Department (LVMPD) hears the gunshots and books Hillary at the Clark County Detention Center for discharging the gun from a car. But if Hillary’s attorney can explain that she did not wantonly or maliciously fire the gun, charges should be dropped.
Depending on the circumstances, drive-by shooting may involve additional crimes such as:
- murder or attempted murder
- wrongful firearm possession,
- gang involvement, and/or
- destruction of property
The D.A. has the burden to prove guilt for each individual offense beyond a reasonable doubt. So it may be possible for a defendant to be found guilty of one but not others.2
2. What are the penalties?
The punishments for drive-by shootings in Nevada depend on where the shooting occurs.
If the gun is fired in an area designated by local ordinance as a populated area, then a drive-by shooting is a category B felony. The sentence includes:
- 1 – 10 years in Nevada State Prison; and/or
- up to $5,000 in fines.
If the gun is fired in an area not designated by city or county ordinance as a populated area, then the drive-by shooting is a misdemeanor. The punishment includes:
- up to 6 months in jail; and/or
- up to $1,000 in fines.3
Note that if the case involves homicide or attempted homicide charges, potential penalties include decades in prison.4
3. How can I fight the charges?
Drive-by shooting cases are extremely fact-specific. Where, when, and how the incident occurred will determine the how best to fight the charges.
In our experience, the three most effective defense strategies are:
- The shooting was lawful. There are some situations where drive-by shootings are perfectly legal in Nevada. Examples include hunters (as long as they are abiding by NRS 503.010(2)) or police officers while performing official duties. In some cases, there may also be licensed shooting ranges where practicing shooting from a vehicle is lawful.
- The shooting was not malicious nor wanton. Firing a gun from a car negligently or accidentally does not violate NRS 202.287. As long as prosecutors cannot prove beyond a reasonable doubt that you were acting maliciously or wantonly, charges should be dropped.
- The shooting was done in self-defense. Firing a gun from a car is not a crime as long as you reasonably believed you or someone else was facing imminent death or serious injury. So if we can demonstrate that you were acting in lawful self-defense, the criminal case should be dismissed.
Example: Mike is driving through a rough neighborhood in Las Vegas when a gang member suddenly appears and points a gun at Mike. Mike reaches for his gun and shoots the gang member.
In this case, Mike should not face criminal charges because he reasonably believed the gang member was about to kill or substantially injure him.
Note that it is not a defense in drive-by shooting cases that the incident caused no property damage or personal injury. Nor does it matter if the car was at rest when the bullet flew.
4. Will I be deported?
Gun crimes are usually deportable.5 Therefore aliens charged with any firearm offense should not wait to hire an attorney to try to negotiate a charge reduction or dismissal.
5. Is it a federal crime, too?
Yes. Drive-by shooting is a federal offense as well as a state offense. However, federal law’s definition of drive-by shootings is far more narrow than Nevada law:
- You must fire the gun from a vehicle into a group of two or more people;
- You must have the intent to intimidate, injure, harass or maim;
- The shooting must be done in furtherance of – or to escape detection of – a major drug crime; and
- The shooting must cause a grave risk to human life or kill someone.
The prison sentence is harsher than under state law, carrying possibly 25 years in Federal Prison or life if someone gets killed.6
6. Related gun laws
6.1. Discharging a firearm in public
NRS 202.280 makes it a misdemeanor to fire a firearm on a public street, public building, or other public place while you are:
- intoxicated by alcohol or drugs, or
- behaving wantonly, maliciously, or negligently.
6.2. Shooting into a building or vehicle
Shooting a gun into a car or building (NRS 202.285) is a category B felony if the car or building is occupied. Otherwise, shooting into an abandoned car or building is a misdemeanor.
6.3. Brandishing a deadly weapon
Drawing a deadly weapon in a threatening manner (NRS 202.320) in front of two or more people is a misdemeanor. But prosecutors will instead bring felony charges for assault with a deadly weapon if you put someone in fear of immediate bodily harm.
Arrested by law enforcement? Contact our Las Vegas, NV criminal defense lawyers for legal advice.
Our law firm defends against all types of charges from domestic violence and DUI to restraining order violations and deadly weapons crimes. We also appear in state- and federal courts throughout the state of Nevada, including Henderson, Boulder City, Reno, and more.
In California? See our article about California drive-by shooting laws.
- NRS 202.287. Discharging firearm within or from structure or vehicle; penalties.
1. A person who is in, on or under a structure or vehicle and who maliciously or wantonly discharges or maliciously or wantonly causes to be discharged a firearm within or from the structure or vehicle:(a) If the structure or vehicle is not within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, is guilty of a misdemeanor.
(b) If the structure or vehicle is within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
2. If a firearm is discharged within or out of any vehicle that is in motion or at rest and it cannot with reasonable certainty be ascertained in what county the crime was committed, the offender may be arrested and tried in any county through which the vehicle may have run on the trip during which the firearm was discharged.
3. The provisions of this section do not apply to:
(a) A person who lawfully shoots at a game mammal or game bird pursuant to subsection 2 of NRS 503.010.
(b) A peace officer while engaged in the performance of his or her official duties.
(c) A person who discharges a firearm in a lawful manner and in the course of a lawful business, event or activity.
4. As used in this section:
(a) “Structure” means any temporary or permanent structure, including, but not limited to, any tent, house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building.
(b) “Vehicle” means any motor vehicle or trailer designed for use with a motor vehicle, whether or not it is self-propelled, operated on rails or propelled by electric power obtained from overhead wires.
- See, for example: Tinch v. State (1997) ; Cardenas-Ornelas v. State (2011) Nev. Unpub. LEXIS 1435.
- See note 1.
- NRS 200.030.
- 8 U.S.C. 1227.
- 18 U.S.C. 36.