Attempt murder in Nevada is when someone tries and fails to commit the Nevada crime of murder. The two main elements of this crime are:
- the defendant intended to kill the victim, and
- the defendant took a direct step towards carrying out the killing
It may be possible to get criminal charges dismissed or reduced through a plea bargain. The most common arguments for fighting attempt homicide allegations include:
- the defendant acted in accordance with Nevada self-defense laws,
- the defendant had no intent to kill, and/or
- the defendant made no attempt to kill,
In this article, our Las Vegas Nevada criminal defense attorneys discuss the following attempt murder topics:
- 1. Definition
- 2. Penalties
- 3. Defenses
- 4. Sealing records
- 5. Immigration consequences
- 6. Related offenses
1. Definition of attempted murder in Nevada
Like it sounds, attempt murder is when someone intentionally tries to kill someone else — but the would-be victim does not die.1
Therefore, prosecutors have to prove two elements in order to convict someone of attempted homicide in Nevada:
- the defendant had the intention to kill the would-be-victim, and
- the defendant took at least one direct step towards accomplishing the killing2
The central difference between murder and attempted murder is that the victim in attempt murder cases did not die from the defendant’s actions. Examples of attempted murder include:
- shooting a gun at someone’s head, heart, or other vital organs with the intent to kill, but the victim ducks in time
- stabbing someone in the chest with the intent to kill, but the victim survives
- paying a hitman to kill someone, but the victim escapes in time
If a victim in an attempt murder case ultimately dies from the injuries, then the D.A. will upgrade the defendant’s charges to murder.
2. Penalties for attempt murder in Nevada
Nevada law classifies attempted murder as a category B felony unless the defendant used poison. (Scroll down to section 2.1 for the penalties for attempt murder by poison.)
Attempt murder as a category B felony carries two to twenty (2 – 20) years in state prison. The judge will impose an additional one to twenty (1 – 20) years if either:
- the defendant used a deadly weapon, or
- the victim was age 60 or older
However, this enhanced sentence may not be longer than the underlying sentence for attempted murder:
Example: Rudy gets convicted of attempting to kill his co-worker, who is 65 years old. The judge imposes a 10-year penalty for the attempt murder. Because the co-worker is age 60 or older, the judge will impose an additional penalty. But since the underlying sentence is only 10 years, this additional penalty may be no longer than 10 years.
Had the judge in the above example imposed an underlying penalty of 20 years, then the judge would be able to impose an additional 20 years due to the victim’s age.
Note that attempted homicide never carries the death penalty.3
2.1. Attempt murder by poisoning
Nevada law classifies attempting to poison someone to death as a category A felony in Nevada. The judge may impose either of the following sentences:
- life in prison with the possibility of parole after 5 years; or
- 15 years in prison with the possibility of parole after 5 years4
Learn more about the Nevada crime of attempt murder by poison.
3. Fighting attempt murder charges in Nevada
Attempted murder is usually much harder for Nevada prosecutors to prove than actual murder. There is no dead body, and no one can read the defendant’s mind to tell whether he/she intended to kill.
There are several possible defenses for getting attempt homicide charges dismissed. Below are three common strategies:
- lack of intent
- lack of attempt
Note that it is not a defense to attempt homicide charges if the defendant sustained no injuries.
3.1. The defendant acted in self-defense
Killing in self-defense is legal in Nevada as long as the person reasonably believes the aggressor is about to kill or seriously injure him/her.5
Example: Jeff is walking down a dark alleyway when a thief holds him up with a gun. The thief then cocks the gun, and Jeff uses a karate move to wrest the gun away and shoot him in the chest. The thief survives. The D.A. investigates the case and decides not to bring attempt murder charges against Jeff. Even though Jeff intended to kill the thief when he shot him, his action was justifiable because he had good reason to believe that the thief was about to kill or seriously harm him.
The thief in the above example will himself probably face attempt murder charges himself or at least robbery charges.
3.2. There was no intention to kill
Attempted murder comprises homicides where the defendant intended to kill someone. Merely intending to injure does not make a person liable for attempted murder.6 Typical evidence in these cases includes:
- surveillance video,
- eyewitness accounts,
- text messages, voicemails, and other communications from the defendant
The D.A. would likely argue that any wounds the defendant allegedly inflicted on the victim’s head or chest are evidence of intent to kill because of their proximity to vital organs. But even then, intent to kill may difficult for the D.A. to prove because there is no way to see inside the defendant’s brain.
As long as the prosecutor cannot prove beyond a reasonable doubt that the defendant intended to cause death, then the defendant is not liable for attempted murder.
3.3. There was no attempt to kill
A person does not commit an attempted crime in Nevada merely by thinking about or planning to do it: The defendant would have had to put the plan into action and “attempt” it.
Therefore, attempted murder charges should not stand if the defendant took no “direct” step towards accomplishing a killing. For example, writing a journal diary about planning to kill someone is not an attempt. Instead, pointing a gun at someone could be an attempt killing.7
Note that a defendant could be liable for conspiracy to commit murder if he/she agreed with at least one other person to kill someone else. It makes no difference if neither party took no further action to accomplish the killing. Learn more about Nevada conspiracy laws.
4. Sealing attempt murder records in Nevada
Most attempted murder convictions may be sealed ten (10) years after the case ends. A case ends when the defendant is done serving his/her sentence and parole.
However, a conviction of attempt murder by poison may never be sealed.8
If a defendant gets acquitted of attempt murder — or if the charges otherwise get dismissed — then the defendant may pursue a record seal immediately. The following table summarizes the record seal rules.9
Attempt murder charge in Nevada
Waiting period to get a record seal
|Category B conviction (most cases)||10 years after the case closes|
|Category A conviction (attempt murder by poison)||The record may never be sealed|
|No conviction (dismissal or acquittal)||No waiting period|
Learn more about how to get a Nevada record seal.
5. Deportation for attempt murder in Nevada
Immigrants facing attempt murder charges may be able to avoid deportation if their attorney can get the charge dismissed or reduced to a non-deportable offense. Learn more about the criminal defense of immigrants in Nevada.
6. Related offenses
6.1. Battery with substantial injuries
The Nevada crime of battery (NRS 200.481) occurs when someone inflicts unlawful physical force on someone else. Common examples are punching or kicking someone.
Battery with substantial bodily harm is a category B felony or a category C felony in Nevada depending on whether a deadly weapon was involved or if the defendant was part of a “protected class,” such as a police officer.11
Another name for the Nevada crime of mayhem is maiming. It comprises cutting off, disfiguring, or disabling a part of someone’s body.
Like attempt murder, mayhem is a category B felony in Nevada. The penalties are two to ten (2 – 10) years in state prison and possibly $10,000 in fines.12
It is against Nevada law to impose physical brutality on an initiating or current member of a club. The Nevada crime of hazing is typically an issue in gangs, sports teams, and fraternities.
Hazing that causes serious bodily injury is a gross misdemeanor in Nevada, carrying up to 364 days in jail and/or up to $2,000 in fines. Hazing with no serious injuries is a Nevada misdemeanor carrying up to six (6) months in jail and/or up to $1,000 in fines.13
Call a Nevada criminal defense attorney…
Arrested? Phone to talk with our Las Vegas criminal defense attorneys for free. We will draw on our vast experience as negotiators and as trial lawyers to try to resolve your case as positively as possible.
Arrested in California? Go to our page on California attempted murder law.
Arrested in Colorado? Go to our page on Colorado attempted murder law.
- Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988)(“[T]he performance of an act which tends, but fails, to kill a human being, when such acts are done with…the deliberate intention unlawfully to kill.”).
State v. Thompson, 31 Nev. 209, 101 P. 557 (1909)(“In an attempt to commit a crime, three elements are involved: First--The intent to commit the crime. Second – Performance of some act towards its commission. Third – Failure to consummate its commission.”).
- NRS 193.330; NRS 200.030.
- NRS 200.390.
- NRS 200.120.
Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988)(“Express malice, called malice in fact, is the deliberate intention to kill; implied malice, called malice in law, does not relate to a deliberate, intentional killing but is rather a mens rea inferred in law from the “circumstances of the killing.” NRS 200.020. Proving express malice means proving a deliberate intention to kill; while proving implied malice means proving only the commission of wrongful acts from which, absent any proof of an actual intent to harm, the archaic but essential “abandoned and malignant heart” can be inferred in law. Attempted murder can be committed only when the accused’s acts are accompanied by express malice, malice in fact. One cannot attempt to kill another with implied malice[.]”).
Moffett v. State, 96 Nev. 822, 618 P.2d 1223 (1990)(“The preparation for a crime consists in “devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made.” State v. Lung, 21 Nev. 209, 214, 28 P. 235, 236-37 (1891) (overruled in part as to impossibility of means utilized, Darnell v. State, 92 Nev. 680, 588 P.2d 624 (1976)). In interpreting NRS 208.070, we stated in Darnell v. State, 92 Nev. at 682, 588 P.2d at 625, that a “direct but ineffectual act toward the commission of the crime” is the required actus reus for an attempted crime. The act need not be, as appellant herein asserts, actual commencement of the potentially death producing action. See State v. Verganadis, 50 Nev. 1, 3, 248 P. 900 (1926).”).
- NRS 179.245.
- NRS 179.255.
- 8 U.S.C. § 1227.
- NRS 200.481.
- NRS 200.280.
- NRS 200.605.