NRS § 193.165 – Use of a Deadly Weapon in the Commission of a Nevada Crime

Nevada NRS § 193.165 is the Nevada law that increases the sentence when you use of a deadly weapon (such as a gun or knife) in the commission of a felony, unless the use of the weapon was already an element of the crime. This deadly weapon enhancement can double a criminal sentence, adding an additional 1-to-20 years of prison time.

In this article, our Las Vegas criminal defense attorneys discuss:

• 1. Is using a weapon a separate offense in Nevada?
• 2. What are the penalties under NRS 193.165?
• 3. Can I get probation?
• 4. What weapons cause increased sentences?
• 5. What if the underlying crime required using weapons?
• 6. What if I never used the weapon?
• 7. Related offenses

Also see our related article, possession of firearms by convicted felons (NRS 202.360).

1. Is using a weapon a separate offense in Nevada?

If you use weapons while committing a felony, you will not face extra charges. Instead, the judge will increase the sentence for the underlying felony conviction.

Example: Jasper holds up a cashier with a gun in Henderson. If caught, Jasper faces charges of robbery (NRS 200.380), a category B felony. Since he used a gun, the judge will impose an increased Nevada State Prison sentence for the robbery.

Therefore, using a firearm in the commission of a crime in Nevada is not a crime in and of itself. It is a sentencing enhancement to the underlying crime.¹

2. What are the penalties under NRS 193.165?

When you use a deadly weapon in the commission of a felony, a Nevada district court judge may increase the underlying felony sentence by one-to-twenty (1 – 20) years. However, this enhanced sentence for using the weapon may not exceed the sentence for the underlying crime:

Example: A Clark County judge sentences Ted to 10 years for mayhem (NRS 200.280). Since Ted used a knife, the judge can increase the sentence by at most 10 more years because the underlying mayhem sentence is for only 10 years. So in all, Ted can serve a double sentence of 20 years total. 10 for the mayhem, and an additional 10 for using a knife while committing mayhem.

Nevada judges consider the following five factors when calculating the length of the enhanced sentence for using a deadly weapon in the commission of a crime:

1. The facts and circumstances surrounding the alleged crime.
2. Your criminal history.
3. What impact the incident had the victim.
4. Any mitigating factors (such as you having mental disabilities, etc.).
5. And anything else that is relevant.

Note that the weapon enhancement runs consecutively with the sentence for the underlying crime. Not concurrently. After you finish the sentence for the underlying crime, only then can you start serving the sentence for using a deadly weapon.

Also, note that non-citizens convicted of crimes involving firearms face deportation as well. Though a criminal defense lawyer may be able to get the charge dismissed or changed to a non-deportable offense.²

3. Can I get probation?

Courts may not grant probation – or a suspended sentence – if you are convicted of using a weapon in the commission of either of the following four offenses:

1. Murder (NRS 200.030),
2. Kidnapping (NRS 200.310) (first degree),
3. Sexual assault (NRS 200.366), or
4. Robbery

Otherwise, the court may consider granting you probation in lieu of incarceration.³

4. What weapons cause increased sentences?

Using any of the following 20 deadly or dangerous weapons while committing a crime in Nevada may result in an increased sentence:

1. Guns – pistols, handguns, revolvers, rifles, machine guns, or other firearms – whether loaded or not, with a CCW or not
2. Spring pistols
3. Pneumatic guns
4. Paint guns
5. Knives – dirks, dirk-knives, swords, sword canes, daggers, or switchblades
6. Nunchaku (“nun-chucks”)
7. Trefoils
8. Machetes
9. Throwing stars
10. Traps
11. Metal knuckles
12. Blackjacks
13. Slungshots
14. Billy clubs
15. Sand-clubs
16. Sandbags
17. Incendiary or explosive substances (other than gun ammunition)
18. Tear gas
19. Any device which by design is likely to cause substantial bodily harm or death (such as firearms or knives), and
20. Any object which could cause substantial bodily harm or death from how you use it (such as throwing a brick, lead pipe, broken glass, or using scissors to stab)⁴

5. What if the underlying crime required using weapons?

NRS 193.165 does not apply to cases where using weapons is a necessary element of the crime itself.

Example: Tom slips a pistol to an inmate during a prison visit, thereby committing furnishing a prisoner with a weapon (NRS 212.160). Here, Tom will not receive the weapons enhancement for giving a gun to his inmate friend. This is because the crime specifically concerns giving guns to prisoners. There is no way to commit this crime without use of a deadly weapon. Therefore, NRS 193.165 is inapplicable to this charge.⁵

6. What if I never used the weapon?

Merely possessing a deadly weapon will not trigger the weapons enhancement under NRS 193.165. You must have used it or displayed it to cause fear in conscious furtherance of the crime.⁶

Example: Neeraj carries a concealed firearm in his pocket. One day while his neighbor is out, he breaks into her home to steal her marijuana and other controlled substances. Here, Neeraj faces charges of burglary without the weapons enhancement. Even though he had possession of a firearm, he did not use the concealed weapon in conscious furtherance of the burglary.

Meanwhile, Oliver approaches a woman on the street and asks for her wallet. When she refuses, Oliver flashes the knife on his belt. The woman hands over the purse. Here, Oliver faces charges of robbery with the weapons enhancement. Even though Oliver did not end up brandishing or cutting with the knife, he used it to cause fear in his victim.

Note that all accomplices to a crime can face increased penalties for using a weapon even if all but one of the accomplices are unarmed.⁷

Example: Lena and Bella agree to kill their ex-friend’s cat with a knife. Lena holds the cat down, and Bella stabs it. Here, both Lena and Bella face charges of animal cruelty with the weapons enhancement. Even though Lena never touched the knife, she helped Bella carry out the stabbing. So under Nevada law, she shares criminal liability for using the weapon.

Also note that NRS 193.165 never applies to conspiracy (NRS 199.480) charges under state law. Using a weapon means “to put into action or service” or to “carry out a purpose by means of” the weapon. In contrast, conspiracy is two or more people agreeing to commit a crime. By definition, you cannot use a deadly weapon merely to conspire. ⁸

7. Related offenses

There are some Nevada gun crimes that NRS 193.165 never applies to:

• Aiming a gun at a person (NRS 202.290): Aiming a firearm at a human being is a gross misdemeanor, carrying up to 364 days in jail and/or up to $2,000 in fines.
• Discharging a firearm in public (NRS 202.280): Firing a gun in public is usually a misdemeanor, carrying up to 6 months in jail and/or up to $1,000 in fines. Though it can be a category B felony in certain circumstances.
• Brandishing a deadly weapon in a threatening manner (NRS 202.320): This is usually a misdemeanor, carrying up to 6 months in jail and/or up to $1,000 in fines.

For additional help…

Charged under federal law? See our article about the federal crime of using guns to carry out drug trafficking or violent crimes in the United States (18 U.S.C. § 924(c)).

Charged in California? See our article about firearm sentencing enhancements.

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