Definition
An attempted crime is when a person intentionally tries to commit a crime but falls short of completing it. Under Nevada law, merely thinking about or taking preliminary steps does not constitute an attempt. A person has to make an “overt act” toward committing the crime in order to be criminally liable for an attempt.
Penalties
Prosecutors may be willing to plea bargain attempt charges down to lesser offenses or a full dismissal. Otherwise, the punishment for an attempt conviction depends on underlying crime:
| Category of Nevada Crime Allegedly Attempted | Penalty |
|---|---|
| Category A felony | Category B felony:
|
| Category B felony | Category B felony (if the maximum sentence for the underlying crime is greater than 10 years):
or Category C felony (if the maximum sentence for the underlying crime is 10 years or less):
|
| Category C felony | Category D felony:
or Gross misdemeanor:
|
| Category D felony or Category E felony | Category E felony: Probation and a suspended sentence. But the judge may order the following if the defendant has two or more prior felony convictions:
or Gross misdemeanor:
|
| Gross misdemeanor | Gross misdemeanor:
|
| Misdemeanor | Misdemeanor:
|
Defenses
Three common defenses to attempt charges include:
- The defendant had no intent to commit the crime,
- The defendant’s actions are not sufficient to constitute an attempt, and/or
- The defendant did not try to commit the alleged offense
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What are attempt crimes in Nevada?
- 2. How much action constitutes an attempt?
- 3. How is conspiracy different?
- 4. Can I go to prison?
- 5. What are the defenses?
- 6. Can I get the case sealed?
- 7. Will I get deported?
- 8. Common attempt offenses
1. What are attempt crimes in Nevada?
An attempted crime is when people try to commit a crime but fall short of completing it. Prosecutors cannot charge suspects for a crime that never gets carried out. Instead, prosecutors charge the suspects with attempting to commit the crime.
Attempt is an “inchoate” offense, which literally means a “not fully formed” crime. According to the Nevada Supreme Court, the legal definition of attempt has three elements:
- The defendant has the specific intent to commit a crime, and
- The defendant takes direct action (“an overt act”) towards committing the crime, and
- The defendant fails to complete the intended crime1
There are many reasons why a planned crime may not come to pass. These include issues such as poor preparation, unexpected events, cold feet, and/or police intervention.
Example: Jerry intends to steal his neighbor’s Acura in Las Vegas. That evening, he goes to where the Acura is parked, breaks in using a slim jim, and tries to hotwire it. Another neighbor sees what is going on and calls the police, who arrive before Jerry can turn on the car. In this case, Jerry did not succeed in stealing the car because the police found him before he could drive or otherwise carry the car away. But since Jerry had the intention to steal it and was doing what he could to complete the theft, Jerry could face a conviction for attempted grand larceny of an automobile.
If Jerry in the above example had succeeded in starting the car and driving it off its parking spot, then his actions would have crossed the line from attempted theft to actual theft. But since he was not able to carry out the theft despite all his efforts to, he is only liable for an attempted crime. (Note that Jerry would also probably face charges of burglary for breaking into the car with the intent to steal it.)
Note that an attempt is both a Nevada state as well as a federal crime. Federal attempt laws are largely similar to Nevada’s legal definition.2
2. How much action constitutes an attempt?
Simply formulating a plan in one’s mind is not sufficient to constitute an attempt.3 The suspect actually has to take some direct action — an “overt” act — towards achieving the crime.
Example: Jenny is mad at her co-worker Kevin and spikes his sandwich with a serving of ex-lax to give him a stomachache. Kevin senses something is up and inspects his sandwich before taking a bite. He finds the Ex-lax and calls the police, who then arrest Jenny for attempted battery (NRS 200.481) because she 1) intended to commit battery on Kevin, and 2) went through the motions of inflicting unlawful physical force on Kevin via spiking his sandwich. Had Kevin eaten sandwich, then Jenny could be charged with battery since the attempt succeeded.
If Jenny in the above example simply bought the Ex-lax with the intent to use it, but never did, then she should not be prosecuted for attempt battery. This is because merely buying the laxative is not far enough to constitute an attempted battery. It is what Jenny does with it with respect to Kevin that determines whether she committed a crime. Now, let us alter this example slightly:
Example: Jenny is mad at her co-worker Kevin and intends to spike his sandwich with a serving of ex-lax to give him a stomachache. However, in Jenny’s rage, she mixes up her Ex-lax with her Hershey’s bar. Kevin senses something is up and inspects his sandwich before taking a bite. He sees the chocolate and asks Jenny about it, who confesses she gave him Ex-lax to teach him a lesson. Kevin calls the police, who then arrest Jenny for attempted battery because she 1) intended to inflict unlawful physical force on Kevin via spiking his sandwich, and 2) took direct action towards inflicting unlawful physical force on Kevin via spiking his sandwich.
In the above example, it makes no difference that Jenny mistakenly spiked Kevin’s sandwich with a harmless substance. She intended to give him Ex-lax, and she put what she thought was the laxative in the sandwich. The fact that Kevin would not be harmed by the chocolate is not a defense.
Certainly, what constitutes attempt can be subjective and depends on several variables. These include the circumstances, the defendant’s state of mind, and the crime the defendant is trying to carry out.
3. How is conspiracy different?
Attempt and conspiracy are different concepts:
Attempt is when someone intentionally tries but fails to carry out a crime. In contrast, conspiracy occurs when two or more people agree to commit a crime, whether or not they take any further action to accomplish it.4
Example: Luanne and Margaret were kicked out of UNLV for cheating. To get their revenge, they make an agreement over text message to vandalize the registrar’s office that weekend. On the way to campus, Luanne gets stuck in traffic. Margaret does not want to wait, so she decides to deface the office herself.
Meanwhile, someone has tipped off campus police to Margaret and Luanne’s plan. Right when Margaret is about to strike a window with a pipe she brought, a campus officer shines a flashlight on her and orders her to stop. Margaret then gets charged with both attempt vandalism and conspiracy to commit vandalism.
In the above example, Margaret can be prosecuted with conspiracy even though her co-conspirator Luanne has not been caught yet. Even though it takes more than one person to commit a conspiracy, all the co-conspirators do not need to be charged together for it.
Note that if Luanne ever gets caught, she would face conspiracy charges for agreeing with Margaret to deface the registrar’s office. But she may be able to avoid attempted vandalism charges because she arguably took no “overt act” towards committing the defacement.
4. Can I go to prison?
The penalties for attempts are less harsh — sometimes by as much as half — than if the crime was successfully executed. The sentencing range turns on the category of the underlying offense:5
| Category of Nevada Crime Allegedly Attempted | Penalty |
|---|---|
| Category A felony | Category B felony:
|
| Category B felony, where the maximum prison term is greater than 10 years | Category B felony:
|
| Category B felony, where the maximum prison term is 10 years or less | Category C felony:
|
| Category C felony | Category D felony:
or Gross misdemeanor:
|
| Category D felony | Category E felony: Probation and a suspended sentence. But the judge may order the following if the defendant has two or more prior felony convictions:
or Gross misdemeanor:
|
| Category E felony | Category E felony: Probation and a suspended sentence. But the judge may order the following if the defendant has two or more prior felony convictions:
or Gross misdemeanor:
|
| Felony for which a category is not designated by statute | Felony:
|
| Gross misdemeanor | Gross misdemeanor:
|
| Misdemeanor | Misdemeanor:
|
5. What are the defenses?
Three common arguments to fight attempt crime charges include:
- The defendant had no intent to commit the crime,
- The defendant’s actions are not sufficient to constitute an attempt, and
- The defendant did not try to commit the alleged offense.
Note that “impossibility of carrying out the crime” is not a defense to attempt crimes.6 For example, an angry protestor who throws a lighted match into a structure can face an attempted arson charge even if the structure turns out to be non-flammable. What matters under Nevada law is the protestor’s intent and actions, not that it was “impossible” to accomplish the arson.
5.1. The defendant had no intent to commit the crime
As discussed above in question 1, intent is a key element to all attempt offenses. By its very definition, an attempt is an intentional act to try to do something.
Therefore, it makes no logical sense for someone to be convicted of attempting a crime he/she never intended to commit. Actions that are done accidentally, unconsciously, or otherwise non-deliberately should not result in criminal prosecution for an attempt. As long as prosecutors cannot prove beyond a reasonable doubt that the defendant intended to commit the alleged crime, the case should be dismissed.
5.2. The defendant’s actions are not sufficient to constitute attempt
As discussed above in question 2, an attempt is more than thinking about committing a crime or even taking preparatory measures to commit a crime. A person would need to take a direct action toward committing a crime in order to face attempt charges.
In many cases, preparatory actions can be explained by innocent, non-criminal motivations. If the defense attorney can show that a defendant’s actions amounted to no more than thinking and preliminary measures, then the D.A. should not have sufficient proof to sustain an attempt conviction.
5.3. The defendant did not try to commit the alleged offense
This defense is very specific to the underlying crime the defendant is accused of attempting. For instance, a defense to attempted battery is that the defendant did not try to inflict unlawful physical force on someone. A defense to grand theft auto is that the defendant never tried to steal a car. A defense to arson is that the defendant never tried to set something on fire…
If the D.A. cannot prove that the defendant tried to carry out the crime they were prosecuted for, then the attempt charges should not stand.
6. Can I get the case sealed?
It depends. Convictions for attempted sex crimes and crimes against children can never be sealed. Otherwise, the waiting period before a defendant may become eligible for a record seal depends on what category of offense he/she was convicted of:7
| Nevada Attempt Conviction | Record Seal Wait-time |
|---|---|
| Category B felony | 5 year after the case ends |
| Category C felony | 5 years after the case ends |
| Category D felony | 5 years after the case ends |
| Category E felony | 2 years after the case ends |
| Gross misdemeanor | 2 year after the case ends |
| Misdemeanor | 1 year after the case sends |
If the defense attorney succeeds in getting the charge(s) dismissed, then there is no waiting period to petition the court for a criminal record seal.8
7. Will I get deported?
It depends on which offense(s) the defendant is convicted of. In general, deportable crimes include:
- firearm offenses
- drug offenses
- domestic violence offenses
- crimes involving moral turpitude
- aggravated felonies
Immigration law is extremely confusing and constantly changing. Therefore, any non-citizen who has been charged with a crime is advised to retain an experienced Las Vegas immigration law attorney right away. A skilled lawyer may be able to get the charges dismissed or at least reduced to offenses that do not threaten the person’s resident status.
8. Common attempt crimes in Nevada
Note that additional penalties of 1 to 20 years will be imposed if the defendant used a deadly weapon or if the would-be victim was sixty or older. But this additional sentence may not be longer than the sentence for the underlying attempt crime.9
8.1. Attempt murder (NRS 200.030)
Attempted murder is when a person tries — but fails — to kill someone. For example, a person who strangles someone with the intent to kill the victim would face attempt murder charges if the victim survives.
Murder is a category A felony carrying up to life in prison and possibly death. Therefore, an attempted murder is a category B felony carrying two to twenty (2 – 20) years in prison.
8.2. Attempt rape (NRS 200.366)
Attempted sexual assault is when someone tries — but fails — to penetrate someone sexually without that person’s consent. For example, a man who throws himself on a woman with intent to have sexual intercourse with her would face attempted rape charges if the police stop him before he can penetrate her.
Sexual assault is a category A felony carrying up to life in prison. Therefore, an attempted rape is a category B felony carrying one to ten (1 – 10) years in prison.
8.3. Attempt robbery (NRS 200.380)
Attempted robbery is when someone tries — but fails — to unlawfully take property from another using force, violence, or threats of injury. For example, a person who holds up a pedestrian would face attempt robbery charges if the person does not succeed in taking any of the pedestrian’s property.
Robbery is a category B felony carrying two to fifteen (2 – 15) years in prison. Therefore, an attempted robbery is a category B felony carrying just one to ten (1 – 10) years in prison.
8.4 Attempt shoplifting (NRS 205.220, NRS 205.240)
Shoplifting is when someone tries — but fails — to carry away goods or cash from a store.
For example, if a girl dares her friend to steal a lipstick from CVS, the friend could face attempted shoplifting charges if she is caught with her hands on the lipstick but before she could walk away with it. (If she does walk away with it, she would then face full-fledged shoplifting charges, even if she gets caught before leaving the premises.)
The penalties for attempted shoplifting depend on the value of the allegedly stolen goods.
Arrested in California? See our article on California attempt laws.
Arrested in Colorado? See our article on Colorado attempt laws.
Legal References:
- Larsen v. State, 86 Nev. 451, 470 P.2d 417(1970) (“The elements of attempt to commit a crime have previously been set forth by this court. They are: (1) an intent to commit a crime, (2) performance of some overt act towards its commission, and (3) failure to consummate its commission.”); see State v. Dawson, 45 Nev. 255, 201 P. 549 (1921) (“It is manifest that the offense of an attempt to commit a crime as defined by the statute is composed of two elements: First, the intent to commit a crime; second, a direct act done toward its commission, and tending, but failing, to accomplish it.”).
- See United States v. Resendez-Ponce, 549 U.S. 102, 107 (2007) (“As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct [which, unless accompanied by] an overt act qualifying as a substantial step toward completion [of the underlying crime].”).
- State v. Verganadis, 50 Nev. 1, 248 P. 900 (1926) (“Between preparation for attempt and attempt itself, there is a wide difference.”).
- NRS 199.480.
- NRS 193.330 Punishment for attempts.
- Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976) (“While jurisdictions have been in conflict as to whether impossibility bars prosecution for charges of attempt, we believe the better rule is that it does not. The hypothesis of the rule we now adopt is that, even though the actual commission of the substantive crime is impossible because of circumstances unknown to the defendant, he is guilty of an attempt if he has the specific intent to commit the substantive offense, and under the circumstances, as he reasonably sees them, he does the acts necessary to consummate what would be the attempted crime. It is only when the results intended by the actor, if they happened as envisaged by him, would fail to consummate a crime, then and only then, would his actions fail to constitute an attempt.”).
- NRS 179.245.
- NRS 179.255.
- NRS 193.165; NRS 193.167.