NRS 193.165 is the Nevada law that increases the prison sentence for defendants who used a deadly weapon (such as a gun or knife) or tear gas in the commission of a felony. This deadly weapon enhancement can lengthen a criminal sentence by 1-to-20 years. But this enhancement can never more than double the sentence for the underlying offense.
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 the defendant never used the weapon?
- 7. Related offenses
Also see our related article, possession of firearms by convicted felons (NRS 202.360).
Defendants who use weapons while committing a felony 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 for 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 gun in the commission of a crime is not a crime in and of itself. It is a sentencing enhancement to the underlying crime.1
When a person uses 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:
- The facts and circumstances surrounding the alleged crime.
- The defendant’s criminal history.
- What impact the incident had the victim.
- Any mitigating factors regarding the defendant (such as mental disabilities, etc.).
- And anything else that is relevant.
Note that the weapons enhancement runs consecutively with the sentence for the underlying crime. Not concurrently. After a defendant finishes the sentence for the underlying crime, only then can the defendant start serving the sentence for using a deadly weapon.
Also note that non-citizens convicted of crimes involving firearms face deportation as well. But a criminal defense lawyer may be able to get the charge dismissed or changed to a non-deportable offense.2
Courts may not grant probation -- or a suspended sentence -- to defendants convicted of using a weapon in the commission of either of the following four offenses:
- Murder (NRS 200.030),
- Kidnapping (NRS 200.310) (first degree),
- Sexual assault (NRS 200.366), or
Otherwise, the court may consider granting defendants probation in lieu of incarceration.3
Using any of the following 20 deadly or dangerous weapons while committing a crime in Nevada may result in an increased sentence:
- Guns -- pistols, handguns, revolvers, rifles, machine guns, or other firearms -- whether loaded or not, with a CCW or not
- Spring pistols
- Pneumatic guns
- Paint guns
- Knives -- dirks, dirk-knives, swords, sword canes, daggers, or switchblades
- Nunchaku (“nun-chucks”)
- Throwing stars
- Metal knuckles
- Billy clubs
- Incendiary or explosive substances (other than gun ammunition)
- Tear gas
- Any device which by design is likely to cause substantial bodily harm or death (such as firearms or knives), and
- Any object which could cause substantial bodily harm or death from how the defendant uses it (such as throwing a brick, lead pipe, broken glass, or using scissors to stab)4
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
Merely possessing a deadly weapon will not trigger the weapons enhancement under NRS 193.165. The defendant 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 for 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 for 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, people cannot use a deadly weapon merely to conspire. 8
There are some Nevada gun crimes that NRS 193.165 never apply 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. But 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.
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.
- NRS 193.165 Additional penalty: Use of deadly weapon or tear gas in commission of crime; restriction on probation.1. Except as otherwise provided in NRS 193.169, any person who uses a firearm or other deadly weapon or a weapon containing or capable of emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a crime shall, in addition to the term of imprisonment prescribed by statute for the crime, 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 20 years. In determining the length of the additional penalty imposed, the court shall consider the following information:(a) The facts and circumstances of the crime;(b) The criminal history of the person;(c) The impact of the crime on any victim;(d) Any mitigating factors presented by the person; and(e) Any other relevant information.
-> The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.
2. The sentence prescribed by this section:
(a) Must not exceed the sentence imposed for the crime; and
(b) Runs consecutively with the sentence prescribed by statute for the crime.
3. This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.
4. The provisions of subsections 1, 2 and 3 do not apply where the use of a firearm, other deadly weapon or tear gas is a necessary element of such crime.
5. The court shall not grant probation to or suspend the sentence of any person who is convicted of using a firearm, other deadly weapon or tear gas in the commission of any of the following crimes:
(b) Kidnapping in the first degree;
(c) Sexual assault; or
6. As used in this section, “deadly weapon” means:
(a) Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause substantial bodily harm or death;
(b) Any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death; or
(c) A dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320 or 202.350.
Certain statutes spell out their own penalties if a deadly weapon is used. Examples include battery domestic violence (NRS 200.485) and violating a restraining order that prohibits firearm possession (NRS 33.031).
- Same; 8 USC 1227. Note that undocumented immigrants in the state of Nevada are always at risk of deportation by the police department. Law enforcement agencies may report them to ICE. And ICE may keep them on an ICE hold.
- Same; see Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984).
- Buschauer v. State, 106 Nev. 890, 804 P.2d 1046, 106 Nev. Adv. Rep. 153 (1990).
- Brooks v. State, 124 Nev. 203, 180 P.3d 657, 124 Nev. Adv. Rep. 19 (2008).
- Moore v. State, 117 Nev. 659, 27 P.3d 447, 117 Nev. Adv. Rep. 52 (2001).