“Attempted Crimes” – Nevada Law – NRS § 193.153 (Formerly NRS § 193.330)

In Nevada, an attempted crime is when you intentionally try to commit a crime but fall short of completing it. Merely thinking about or taking preliminary steps is not an attempt. You must make an “overt act” toward committing the crime to be criminally liable for an attempt.

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:

Attempted Crime	Nevada Penalties under NRS 193.153
Category A felony	Category B felony:  2 to 20 years in Nevada State Prison
Category B felony	Category B felony (if the maximum sentence for the underlying crime is greater than 10 years):  1 to 10 years in prison or Category C felony (if the maximum sentence for the underlying crime is 10 years or less):  1 to 5 years in prison and up to $10,000
Category C felony	Category D felony:  1 to 4 years in prison and up to $5,000 or Gross misdemeanor:  Up to 364 days in jail and/or up to $2,000
Category D felony or Category E felony	Category E felony:  Probation and a suspended sentence, but the judge may order 1 to 4 years in prison and up to $5,000 if you have two or more prior felony convictions or Gross misdemeanor:  Up to 364 days in jail and/or up to $2,000
Unclassified felony	Felony:  Up to one-half of the longest prison term and/or largest fine authorized by statute
Gross misdemeanor	Gross misdemeanor:  Up to 182 days in jail and/or up to $1,000
Misdemeanor	Misdemeanor:  Up to 3 months in jail and/or up to $500

Note that additional penalties of one to 20 years will be imposed if you used a deadly weapon or if the would-be victim was sixty or older. However, this additional sentence may not be longer than the sentence for the underlying attempt crime.

In addition to incarceration and fines, attempt crimes may carry additional penalties such as victim restitution payments for medical bills and property damage.

Prosecutors may be willing to plea bargain attempt charges down to lesser offenses or a full dismissal, especially if we can point to weaknesses in the state’s evidence:

In this article, our Las Vegas criminal defense attorneys will address the following key issues regarding Nevada attempt laws:

• 1. Elements
• 2. Overt Acts
• 3. Conspiracy
• 4. Defenses
• 5. Record Seals
• 6. Immigration Consequences
• 7. Common Attempt Crimes
• 8. Related Offenses
• Frequently Asked Questions
• Additional Reading

1. Elements

In Nevada, an attempted crime is when you try to commit a crime but fail to complete it. Prosecutors cannot charge you with a crime that never gets carried out. Instead, prosecutors charge you with attempting to commit the crime.

An attempt is an “inchoate” offense, which literally means a “not fully formed” crime. According to the Nevada Supreme Court, prosecutors have the burden to prove beyond a reasonable doubt these three elements for you to be convicted of attempt:

1. You have the specific intent to commit a crime, and
2. You take direct action (“an overt act”) towards committing the crime, and
3. You fail 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.

In the above example, if Jerry 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 unable to carry out the theft despite all his efforts, 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. Overt Acts

Simply formulating a plan in one’s mind is not sufficient to constitute an attempt in Nevada.³ You actually have to take some direct action — an “overt act” or “substantial step” — 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 the 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 attempted battery. This is because merely buying the laxative is not far enough to constitute an attempted battery. What Jenny does with it regarding Kevin 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 the chocolate would not harm Kevin is not a defense.

Indeed, what constitutes an attempt can be subjective and depends on several variables. These include the circumstances, your state of mind, and the crime you are trying to carry out.

3. Conspiracy

Attempt and conspiracy are entirely different charges in Nevada:

Attempt is when you intentionally try but fail 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.

Note that if Luanne ever gets caught, she will 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. Defenses

Here at Las Vegas Defense Group, we have represented literally thousands of people charged with attempt crimes. In our experience, the following five defenses have proven very effective with prosecutors, judges, and juries at getting Nevada attempt charges reduced or dismissed.⁵

1) You Had No Intent to Commit the Crime

As discussed above in question 1, intent is a key element to all attempted offenses. By its very definition, an attempt is an intentional act to try to do something.

Therefore, it makes no logical sense to be convicted of attempting a crime you 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 you intended to commit the alleged crime, the case should be dismissed.

2) Your Actions Are Not Sufficient to Constitute an Attempt

As discussed above in question 2, an attempt is more than merely thinking about committing a crime or even taking preparatory measures to do so. You would need to take 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 your defense attorney can show that your actions amounted to no more than thinking and preliminary measures, then the D.A. should not have sufficient proof to sustain an “attempt” conviction.

3) You Did Not Try to Commit the Alleged Offense

This defense is very specific to the underlying crime you are accused of attempting.

For instance, a defense to attempted battery is that you did not try to inflict unlawful physical force on someone. A defense to grand theft auto is that you never tried to steal a car. A defense to arson is that you never tried to set something on fire.

If the D.A. cannot prove that you tried to carry out the crime you were prosecuted for, then the attempt charges should not stand.

4) You Voluntarily Abandoned the Crime

It is a valid defense to attempt charges if you freely decided to stop your actions before the crime was committed.

To succeed with the defense of “voluntary abandonment”, we must show that you had a genuine change of heart and stopped the crime on your own accord—not because you heard police sirens, feared getting caught, or realized the crime was too difficult to complete.

If you voluntarily walked away before causing any harm, it indicates you lacked the continuing criminal intent necessary for a conviction.

5) There Was a “Mistake of Fact”

Attempt crimes require “specific intent,” meaning you must have purposefully tried to break the law. If you acted based on a misunderstanding or a mistake of fact, you should not be convicted.

For example, if you tried to unlock a car that looked exactly like yours, you were not “attempting” to steal a vehicle; you were acting under the honest belief that the car belonged to you. Because your actions were based on an innocent misunderstanding rather than a desire to commit a crime, the attempt charges should be dismissed.

NOT a Valid Defense: Impossibility of Committing the Crime

The “impossibility of carrying out the crime” is not a defense to attempt crimes.⁶

For example, an angry protester who throws a lighted match into a structure can face an attempted arson charge even if the structure turns out to be non-flammable. Under Nevada law, what matters is the protestor’s intent and actions, not that it was “impossible” to accomplish the arson.

5. Record Seals

In Nevada, convictions for attempted sex crimes and crimes against children can never be sealed. Otherwise, the waiting period before you may become eligible for a record seal depends on what category of offense you were 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 ends

If your 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

6. Immigration Consequences

In general, deportable attempt 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 your resident status.

7. Common Attempt Crimes

Attempted Murder (NRS 200.030)

Attempted murder is when you try — but fail — to kill someone. For example, a person who strangles someone with the intent to kill the victim would face attempted 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 20 years in prison.

Attempted Rape (NRS 200.366)

Attempted sexual assault is when you try — but fail — to penetrate someone sexually without that person’s consent. For example, a man who throws himself on a woman with the 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 10 years in prison.

Attempted Robbery (NRS 200.380)

Attempted robbery is when you try — but fail — to unlawfully take property from another using force, violence, or threats of injury. For example, if you hold up a pedestrian, you would face attempted robbery charges if you do not succeed in taking any of the pedestrian’s property.

Robbery is a category B felony carrying two to 15 years in prison. Therefore, an attempted robbery is a category B felony carrying just one to 10 years in prison.

Attempted Shoplifting (NRS 205.220, NRS 205.240)

Shoplifting is when you try — but fail — 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.

Attempted Forgery (NRS 205.090)

Forgery is attempting to defraud another through falsified or counterfeit documents.

For example, a woman goes to a bank teller to withdraw some money from her mother’s account. The woman is about to forge her mother’s signature, but the teller recognizes her and stops her before she finishes filling out the document. Since the forgery crime was attempted but not completed, the D.A. could bring attempted forgery charges.

A category D felony, forgery carries one to four years in prison and up to $5,000 in fines plus victim restitution. 

Attempted Arson (NRS 205.010 – .025)

Arson is willfully and maliciously setting fire to the property of others.

An example is an angry man dropping a lit match on his ex-wife’s front lawn. Because of the wind, the match goes out before hitting the ground. Since no fire was started, he could face attempted arson charges since he took a substantial step to commit arson.

Arson is a felony, and the penalties turn on whether it is charged in the first, second, third, or fourth degree.

8. Related Offenses

• Conspiracy (NRS 199.480) – As discussed above, conspiracy is agreeing with at least one other person to commit a crime, whether or not the crime is tried or accomplished.
• Solicitation (NRS 199.500) – Persuading or urging another person to commit kidnapping, arson, or murder whether or not the crime is tried or accomplished.
• Accessory After the Fact (NRS 195.030) – Helping someone after they committed a crime, such as hiding them from police or giving them money to escape.

Note that aiding and abetting someone to commit a crime is prosecuted the same as committing the crime. Aiding and abetting is not its own separate offense.⁹

Frequently Asked Questions

 Can I be charged with attempt if it was actually impossible to commit the crime?

Yes. Under Nevada law, “factual impossibility” is generally not a valid defense. If you have the specific intent to commit a crime and take a substantial step toward it, you can still be convicted even if an unknown fact made the crime impossible to complete.

For example, if you try to pick someone’s pocket but the pocket is empty, or you try to set fire to a building that turns out to be fireproof, you can still be charged with attempt because your intent and actions were criminal.

What if I changed my mind and stopped before the crime happened?

You may be able to use the defense of abandonment (also called renunciation). To be successful in Nevada, the abandonment must be:

1. Voluntary: You had a genuine change of heart and weren’t just stopping because you saw a police cruiser or realized the crime was too difficult; and
2. Complete: You fully gave up the criminal effort and took steps to prevent it from happening.

Abandonment is an “affirmative defense,” meaning the burden is on you to prove you truly walked away of your own volition.

Are there “hidden” penalties that can increase an attempt sentence?

Yes. Nevada law (NRS 193.165 and 193.167) allows for sentencing enhancements that can be added to an attempt conviction. Your sentence could be significantly longer if the attempt involved:

• Use of a deadly weapon (like a firearm),
• A victim who is 60 years of age or older, or
• A victim who is a first responder (police, fire, or EMS).

These enhancements can add an additional one to 20 years to your sentence, though the extra time cannot exceed the length of the base sentence for the attempt itself.

How does attempt differ from conspiracy in Nevada?

While both are “incomplete” crimes, they have different requirements.

Attempt (NRS 193.153) requires a “substantial step” toward the crime and a failure to finish it.

Conspiracy (NRS 199.480) only requires an agreement between two or more people to commit a crime. In Nevada, unlike many other states, the prosecution does not even have to prove an “overt act” was committed to win a conspiracy conviction—the agreement itself is the crime.

What is the difference between NRS 193.330 and NRS 193.153?

They are the same law. In 2013, the Nevada Legislature renumbered NRS 193.330 to NRS 193.153 as part of a statutory reorganization. While many legal resources and older court documents still cite 193.330, the current official citation for the punishment of attempted crimes in Nevada is NRS 193.153

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Trying, Intending, and Attempted Crimes – Article in Philosophical Concepts.
• Criminal Attempts at Common Law – Article in University of Pennsylvania Law Review.
• Criminal Attempts – The Rise and Fall of an Abstraction – Article in the Yale Law Journal.
• Criminal Attempts – Article in the Harvard Law Review.
• Criminal Attempts – Article in the Dickinson Law Review.

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