Updated
Under NRS 200.471(2)(b), Nevada law defines assault with a deadly weapon as using a gun, knife or another lethal object to strike a person or to place the person in fear of immediate bodily harm. ADW is prosecuted as a category B felony that carries a sentence of 1 to 6 years in state prison and a fine of up to $5000.00.
The accused does not have to hold or wave the weapon to cause this fear. Simply having the present ability to use the weapon suffices as assault with a deadly weapon.
Examples
- Brandishing a knife at someone’s face,
- Pointing a gun at someone,
- Holding a fist up at someone’s face while carrying a pistol, or
- Throwing a lead pipe or other heavy object in someone’s direction
Penalties
Violating NRS 200.471(2)(b) is a category B felony in Nevada carrying:
- 1 – 6 years in Nevada State Prison, and/or
- up to $5,000 in fines
But it may be possible to plea bargain the charge down to a full dismissal or simple battery (NRS 200.481), which is only a misdemeanor.
Defenses
It may be possible to fight Las Vegas NRS 200.471(2)(b) charges by claiming one or more of the following defenses:
- The defendant had no criminal intent;
- The defendant did not cause reasonable apprehension of being harmed;
- The defendant acted in accordance with Nevada self-defense law;
- The accuser consented to the assault; and/or
- No lethal weapon was involved
As long as the D.A. lacks sufficient evidence to prove guilt beyond a reasonable doubt, the charge should be dismissed.
In this article our Las Vegas criminal defense lawyers discuss:
- 1. How does Nevada law define assault with a deadly weapon?
- 2. How do defendants fight the charges?
- 3. What are the penalties under NRS 200.471(2)(b)?
- 4. Can the record be sealed?
- 5. What are the immigration consequences?
- 6. What are related Nevada offenses?
“Assault with a lethal weapon” is a felony in Nevada.
1. How does Nevada law define assault with a deadly weapon?
The Nevada offense of violating NRS 200.471(2)(b) has two components:
- Assault, and
- Use of a lethal weapon.1
1.1 Definition of “Assault”
Assault (NRS 200.471) comprises either:
- Unlawfully attempting to use physical force against another person; or
- Intentionally placing another person in reasonable apprehension of immediate bodily harm.
The crime of assault does not require actual physical touching. If there is touching, it would then be the Nevada crime of battery. Instead, assault is like an attempted battery where the suspect intentionally acts in a way that causes the alleged victim reasonable apprehension of being unlawfully touched in the immediate future.
A common example of assault includes deliberately holding up a fist to someone in a way that would make the person think a punch is coming. Even using fighting words like, “I am gonna break your arm right now” may qualify as assault under certain circumstances.2
1.2 Definition of “Deadly Weapon”
Like it sounds, deadly weapons comprise the following kinds of devices:
- Any instrument which is likely to cause substantial bodily harm if used in the ordinary manner contemplated by its design and construction, or
- Any material which is capable of causing substantial bodily harm under the circumstances in which it is used or threatened to be used
Therefore, lethal weapons comprise not just guns or knives. They also may include normally innocuous objects like pipes, scissors, or bricks that could be used in a deadly way.3
1.3 Definition of “Assault with a Deadly Weapon”
An NRS 200.471(2)(b) violation occurs when a person commits an assault either:
- By using a lethal weapon, or
- With the present ability to use a lethal weapon4
Therefore, “assault with a deadly weapon” includes situations where a defendant does not necessarily use or brandish the weapon. Simply having the weapon on his/her person or within reach during the assault would qualify as assault with a fatal weapon.
Example: Butch suspects Greg is fooling around with his girlfriend. Butch finds Greg in the Hard Rock Hotel and holds his fist up next to his face. Butch is also carrying a hunting knife on his belt. A security guard witnesses this encounter and calls the Las Vegas Metropolitan Police Department, who then arrest Butch and book him at the Clark County Detention Center. Butch faces NRS 200.471(2)(b) charges because he put Greg in reasonable anticipation of being battered by holding up his fist and having a knife within reach.
Other typical scenarios amounting to an NRS 200.471(2)(b) violation in Nevada include pulling a gun or knife on another person. In a bar fight context, hurling a beer bottle at someone else might qualify as well. Throwing a punch usually will not be considered an NRS 200.471(2)(b) violation unless the accused is a professional boxer or wearing “brass knuckles.”
2. How do defendants fight the charges?
Depending on the case, there may be various effective strategies a Las Vegas criminal defense attorney could use that may raise a reasonable doubt and preclude a guilty verdict. Typical defenses include:
- The defendant had no criminal intent
- The accuser had no reasonable apprehension
- The defendant acted in lawful self-defense
- The accuser consented to the assault
- The defendant had no deadly weapon
Note that it is not a defense if no one was hurt or physically touched.
2.1 The defendant had no criminal intent
Assault is an intent crime in Nevada.5 This means a defendant can be convicted only if the defendant intended to act in a way that caused someone else to feel reasonable apprehension of being battered.
Example: Jack is openly carrying a dirk on his belt. While walking down the street, he trips and falls, causing his knife to detach and fly towards another pedestrian. The pedestrian feared that the knife would strike him. But since Jack had no intention to put the pedestrian in apprehension of immediate bodily harm, Jack is not criminally liable for assault with a fatal weapon.
Accidents do not count as assaults. As long as the state’s evidence fails to demonstrate that the defendant had intent, then the case should be dismissed.
2.2 The accuser lacked reasonable apprehension of being hurt
Assault by definition is intentionally acting in such a way that puts someone else in reasonable apprehension of immediate bodily harm.6 So if the criminal defense attorney can show that the alleged victim’s fear was unreasonable or that the bodily harm threatened was not immediate, then the case should be thrown out.
Example: Kyle is openly carrying a pistol on his belt when he walks into a Mesquite 7-Eleven to buy a snack. Another patron sees the pistol and shrieks, fearful that Kyle is about to shoot her. The police come and book Kyle at the Mesquite Jail. However, prosecutors decline to press charges because they believe the patron’s fear of being hurt was unreasonable.
In the above example, Kyle was allowed to openly carry the pistol at the 7-Eleven, and nothing he did was suspicious. So even though the patron may have genuinely been scared upon seeing the gun, Kyle committed no crime.
2.3 The defendant acted in self-defense
Nevada self-defense laws permit people to defend themselves against immediate bodily harm as long as they do not fight back with any more force than necessary.7
Example: Harry sees Greg on the street, who owes him money. Harry calls to Greg, holds up his fist and threatens to “beat in his face” if Greg does not pay him back. In response, Greg produces his pocketknife and holds it up. In this situation, Greg displaying the pocketknife is an act of lawful self-defense in response to Harry’s threat to punch him.
Since Harry in the above example started the fight by assaulting Greg with his fist, Greg was justified to protect himself by holding up his weapon. The fact that Greg merely displayed the knife and did not try to use it demonstrates that Greg was acting in a measured way and did not use more force than necessary to deflect Harry’s threat.
2.4 The accuser consented
This consent defense usually comes into play in the arena of sports such as boxing or fencing where physical contact is part of the game. If the criminal defense attorney can show that the accuser somehow consented to be assaulted, then the assault charges will not stand.
Note that Nevada law prohibits duels.8
2.5 The defendant did not use or have a lethal weapon
If the prosecution cannot show that a lethal weapon was used or was available to be used, the NRS 200.471(2)(b) charge should be dismissed or reduced to simple assault (which is only a misdemeanor).
Example: Lisa and Julia get into a verbal argument. At one point, Lisa screams, “I am gonna to kill you!” Julia notices a bulge in Lisa’s pocket, which Julia presumes is a pistol. Julia calls the police and claims that Lisa committed assault with a deadly weapon on her. But when police arrive and realize that the only objects in Lisa’s pocket were her keys and phone, the police decline to arrest her for anything.
Had Lisa in the above example held up her fist or attempted to throw a punch, she could be liable for simple assault.9
NRS 200.471(2)(b) prohibits assault with deadly weapons in Nevada.
3. What are the penalties under NRS 200.471(2)(b)?
Assault with a deadly weapon is a category B felony in Nevada carrying:
- One to six years (1 – 6) in prison, and/or
- Up to $5,000 in fines
This penalty remains the same whether or not the assault was against a “protected class” such as police officers. Nor does it matter whether the defendant was a prisoner or someone currently on parole or probation in Nevada.10
3.1 Plea bargains for “assault with a lethal weapon” in Nevada
Depending on the case, a Las Vegas criminal defense attorney may be able to persuade the prosecutors to reduce a Nevada NRS 200.471(2)(b) charge down to:
- Simple assault,11
- Simple battery,12 or
- Trespass (NRS 207.200)13
All of these offenses are only misdemeanors. The standard sentence includes:
- Up to 6 months in jail, and/or
- Up to $1,000 in fines (or equivalent community service time)14
4. Can the record be sealed?
A Nevada conviction for violating NRS 200.471(2)(b) may be sealed five (5) years after the case ends. But if the case gets reduced or dismissed, then the waiting period decreases significantly:
| Nevada Assault Conviction | Waiting period to get a record seal |
|---|---|
| Assault with a deadly weapon (category B felony) | 5 years after the case ends |
| Simple assault (misdemeanor) | 1 year after the case ends15 |
| Dismissed charges (no conviction) | Immediately16 |
Learn more about how to get a record seal in Nevada.
5. What are the immigration consequences?
Deadly weapon assault is deportable. Any gun-related conviction carries the risk of removal for non-citizens.17
Immigrants who are charged with a crime in Nevada should retain an attorney right away. The D.A. may be willing to negotiate the charges down to a non-deportable offense or dismiss them completely.
6. What are related Nevada offenses?
10.1. Using a deadly weapon in the commission of a crime
When a defendant uses or carries a lethal weapon while executing a crime, the court will increase the sentence by one to twenty (1 – 20) years. But this added sentence may not exceed the sentence for the underlying crime…
So for example, if a defendant is sentenced to 7 years in prison for armed robbery (NRS 200.380), the additional sentence can be no more than 7 years for a total sentence of 14 years.18
10.2. Being an ex-felon in possession of a firearm
It is against Nevada law for people who have been convicted of felonies to possess guns. Being an ex-felon in possession of a firearm (NRS 202.360) is a category B felony, carrying:
- 1 to 6 years in prison, and
- Up to $5,000 in fines (at the judge’s discretion)
10.3. Brandishing a firearm
It is a misdemeanor to draw or wave a gun in a threatening or provocative manner. Brandishing a firearm (NRS 202.320) carries:
- Up to $1,000 in fines, and/or
- Up to 6 months in jail
10.4. Battery with substantial bodily harm
Battery with substantial bodily harm is inflicting unlawful physical force that results in severe physical harm. A conviction is a felony offense that carries 1 to 15 years in prison.
Contact us for help…
If you have been charged with assault or any other crime in Nevada, then call our Las Vegas criminal defense lawyers today for a free phone meeting.
Arrested in California? Go to our information page on California assault with a deadly weapon (PC 245(a)(1)).
Arrested in Colorado? Go to our information page on Colorado Assault and Menacing crimes.
Legal References:
- NRS 200.471.
- Id.; Wilkerson v. State, 87 Nev. 123, 482 P.2d 314 (1971); Anstedt v. State, 89 Nev. 163, 509 P.2d 968 (1973).
- NRS 193.165; Loretta v. Sheriff, Clark County, 93 Nev. 344, 565 P.2d 1008 (1979); State v. Napper, 6 Nev. 113 (1870).
- NRS 200.471.
- Id.
- Id.
- See NRS 200.200.
- NRS 200.450.
- State v. Davis,14 Nev. 407 (1879); Holland v. State, 82 Nev. 19, 414 P.2d 590 (1966).
- NRS 200.471.
- Id.
- NRS 200.481.
- NRS 207.200.
- NRS 193.150.
- NRS 179.245.
- NRS 179.255.
- 8 USC § 1227(a)(2)(C), INA § 237(a)(2)(C); Camacho-Cruz v. Holder, 621 F.3d 941 (2010); however, note that the U.S. Supreme Court in Sessions v. Dimaya, No. 15–1498 (2018) invalidated the law that required mandatory deportation for “crimes of violence.”
- NRS 193.165.