Nevada Revised Statute § 200.471(2)(b) prohibits assault with a deadly weapon, which is using a gun, knife or other deadly weapon in attempt to strike a victim or place them in fear of immediate bodily harm.
Assault with a deadly weapon (ADW) is a category B felony punishable by one to six years in Nevada State Prison and up to $5,000. Though it may be possible to plea bargain the charge down to a misdemeanor or dismissal.
You do not have to hold or wave the weapon to violate NRS § 200.471(2)(b). Simply having the present ability to use a weapon turns simple assault into ADW.
In this article, our Las Vegas criminal defense lawyers will address the following key issues regarding assault with a deadly weapon (ADW):
- 1. Elements of ADW
- 2. Defenses
- 3. Plea Bargains
- 4. Record Seals
- 5. Immigration Consequences
- 6. Related Offenses
- Additional Reading
1. Elements of ADW
For you to be convicted of assault with a deadly weapon under NRS 200.471(2)(b), Nevada prosecutors have to prove beyond a reasonable doubt the following two elements:
- You committed assault, and
- You used a lethal weapon.1
We discuss these elements in detail below.
1) “Assault” Meaning
Assault comprises either:
- Unlawfully attempting to use physical force against another person; or
- Intentionally placing another person in reasonable apprehension of immediate bodily harm.
Assault does not require actual physical touching. If there is touching, it would then be battery, which is a separate Nevada crime.
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 limited circumstances.2
2) “Deadly Weapon” Meaning
Like it sounds, deadly weapons comprise devices likely to cause substantial bodily harm. It includes not only guns and knives but also everyday objects like pipes, scissors, or bricks that could be used in a deadly way.3
Note that you do not have to injure anyone or even brandish your weapon to be convicted of assault with a deadly weapon. All that matters is that you have the present ability to use the weapon, such as carrying it or keeping it within reach.4
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 openly carrying a hunting knife on his belt. Here, Butch could face 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.
Throwing a punch usually will not be considered an NRS 200.471(2)(b) violation unless you are a professional boxer or wearing “brass knuckles.”
“Assault with a lethal weapon” is a felony.
2. Defenses
Here at Las Vegas Defense Group, we have represented literally thousands of people charged with assault, including with a deadly weapon. In our experience, the following five defenses have proven very effective with Nevada prosecutors, judges, and juries at getting NRS § 200.471(2)(b) cases reduced or dismissed.
1) You Had No Criminal Intent
Assault is an “intent crime” in Nevada.5 This means you can be convicted only if you 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. Though 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 you had intent, then the case should be dismissed.
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 we 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 carry the pistol at 7-Eleven openly, and nothing he did was suspicious. So even though the patron may have genuinely been scared upon seeing the gun, Kyle committed no crime.
3) You Acted in Self-Defense
Nevada self-defense laws permit you to defend yourself against immediate bodily harm as long as you 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.
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 we can show that the accuser somehow consented to be assaulted, then the assault charges will not stand.
Note that Nevada law prohibits duels.8
5) You 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. Though 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
It is not a defense to assault with a deadly weapon charges if no one was hurt or physically touched.
3. Plea Bargains
Depending on the case, we may be able to persuade Nevada prosecutors to reduce an assault with a deadly weapon charge down to:
- Simple assault,11
- Simple battery,12 or
- Trespass.13
All of these offenses are only misdemeanors, which carry up to six months in jail and/or $1,000 (or equivalent community service time).14
Predictably, it is harder to negotiate favorable plea deals if there were “aggravating circumstances,” such as:
- the victim was a member of a “protected class” such as police officers, or
- you were in custody or on parole or probation at the time of the assault.10
NRS 200.471(2)(b) carries one to six years in prison.
4. Record Seals
In Nevada, convictions for assault with a deadly weapon may be sealed 10 years after the case ends. If the charge gets reduced to simple assault, the wait time is only one year after the case ends.15
Note that if your NRS § 200.471(2)(b) case gets dismissed, you can petition for a Nevada record seal right away.16
5. 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.
Non-citizens convicted of assault with a deadly weapon face deportation after their sentence ends.
6. Related Offenses
Using a Deadly Weapon in the Commission of a Crime
When you use or carry a lethal weapon while executing a crime, Nevada courts will increase the sentence by one to 20 years. Note this added sentence may not exceed the sentence for the underlying crime.
So for example, if you are sentenced to seven years in prison for armed robbery, the additional sentence can be no more than seven years for a total sentence of 14 years.18
Being an Ex-felon in Possession of a Firearm
It is against Nevada law for convicted felons to possess guns. Being an ex-felon in possession of a firearm is a category B felony, carrying one to six years in prison and up to $5,000 in fines.19
Brandishing a Firearm
It is a Nevada misdemeanor to draw or wave a gun in a threatening or provocative manner. Brandishing a firearm carries up to six months in jail and/or $1,000.20
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 Nevada felony, carrying one to 15 years in prison.21
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Commitment – Evidence of Character – Assault with Deadly Weapon – Impeachment of Witness – Criminal Law Magazine and Report.
- Criminal Law: Assault with Unloaded Gun – Criminal Law Review.
- Human Immunodeficiency Virus as a Deadly Weapon: Proposing a California Assault Law That Recognizes HIV as a Deadly Weapon – Thomas Jefferson Law Review.
- Assault-Related Conduct under the Proposed California Criminal Code – Hastings Law Journal.
- People v. Chance: Analyzing the Assault Statute’s “Present Ability” Requirement – Berkeley Journal of Criminal Law.
Legal References:
- NRS 200.471. Assault: Definitions; penalties.
1. As used in this section:
(a) “Assault” means:
(1) Unlawfully attempting to use physical force against another person; or
(2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.
(b) “Fire-fighting agency” has the meaning ascribed to it in NRS 239B.020.
(c) “Health care facility” means a facility licensed pursuant to chapter 449 of NRS, an office of a person listed in NRS 629.031, a clinic or any other location, other than a residence, where health care is provided.
(d) “Officer” means:
(1) A person who possesses some or all of the powers of a peace officer;
(2) A person employed in a full-time salaried occupation of fire fighting for the benefit or safety of the public;
(3) A member of a volunteer fire department;
(4) A jailer, guard or other correctional officer of a city or county jail;
(5) A prosecuting attorney of an agency or political subdivision of the United States or of this State;
(6) A justice of the Supreme Court, judge of the Court of Appeals, district judge, justice of the peace, municipal judge, magistrate, court commissioner, master or referee, including a person acting pro tempore in a capacity listed in this subparagraph;
(7) An employee of this State or a political subdivision of this State whose official duties require the employee to make home visits;
(8) A civilian employee or a volunteer of a law enforcement agency whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to law enforcement; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for the law enforcement agency;
(9) A civilian employee or a volunteer of a fire-fighting agency whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to fire fighting or fire prevention; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for the fire-fighting agency; or
(10) A civilian employee or volunteer of this State or a political subdivision of this State whose official duties require the employee or volunteer to:
(I) Interact with the public;
(II) Perform tasks related to code enforcement; and
(III) Wear identification, clothing or a uniform that identifies the employee or volunteer as working or volunteering for this State or a political subdivision of this State.
(e) “Provider of health care” means:
(1) A physician, a medical student, a perfusionist, an anesthesiologist assistant or a physician assistant licensed pursuant to chapter 630 of NRS, a practitioner of respiratory care, a homeopathic physician, an advanced practitioner of homeopathy, a homeopathic assistant, an osteopathic physician, a physician assistant or anesthesiologist assistant licensed pursuant to chapter 633 of NRS, a podiatric physician, a podiatry hygienist, a physical therapist, a medical laboratory technician, an optometrist, a chiropractic physician, a chiropractic assistant, a naprapath, a doctor of Oriental medicine, a nurse, a student nurse, a certified nursing assistant, a nursing assistant trainee, a medication aide – certified, a person who provides health care services in the home for compensation, a dentist, a dental student, a dental hygienist, a dental hygienist student, an expanded function dental assistant, an expanded function dental assistant student, a pharmacist, a pharmacy student, an intern pharmacist, an attendant on an ambulance or air ambulance, a psychologist, a social worker, a marriage and family therapist, a marriage and family therapist intern, a clinical professional counselor, a clinical professional counselor intern, a behavior analyst, an assistant behavior analyst, a registered behavior technician, a mental health technician, a licensed dietitian, the holder of a license or a limited license issued under the provisions of chapter 653 of NRS, a public safety officer at a health care facility, an emergency medical technician, an advanced emergency medical technician, a paramedic or a participant in a program of training to provide emergency medical services; or
(2) An employee of or volunteer for a health care facility who:
(I) Interacts with the public;
(II) Performs tasks related to providing health care; and
(III) Wears identification, clothing or a uniform that identifies the person as an employee or volunteer of the health care facility.
(f) “School employee” means a licensed or unlicensed person employed by a board of trustees of a school district pursuant to NRS 391.100 or 391.281.
(g) “Sporting event” has the meaning ascribed to it in NRS 41.630.
(h) “Sports official” has the meaning ascribed to it in NRS 41.630.
(i) “Taxicab” has the meaning ascribed to it in NRS 706.8816.
(j) “Taxicab driver” means a person who operates a taxicab.
(k) “Transit operator” means a person who operates a bus or other vehicle as part of a public mass transportation system.
(l) “Utility worker” means an employee of a public utility as defined in NRS 704.020 who official duties require the employee to:
(1) Interact with the public;
(2) Perform tasks related to the operation of the public utility; and
(3) Wear identification, clothing or a uniform that identifies the employee as working for the public utility.
2. A person convicted of an assault shall be punished:
(a) If paragraph (c) or (d) does not apply to the circumstances of the crime and the assault is not made with the use of a deadly weapon or the present ability to use a deadly weapon, for a misdemeanor.
(b) If the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
(c) If paragraph (d) does not apply to the circumstances of the crime and if the assault:
(1) Is committed upon:
(I) An officer, a school employee, a taxicab driver, a transit operator or a utility worker who is performing his or her duty;
(II) A provider of health care while the provider of health care is performing his or her duty or is on the premises where he or she performs that duty; or
(III) A sports official based on the performance of his or her duties at a sporting event; and
(2) The person charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator, a utility worker or a sports official,
-> for a gross misdemeanor, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
(d) If the assault:
(1) Is committed by a probationer, a prisoner who is in lawful custody or confinement or a parolee upon:
(I) An officer, a school employee, a taxicab driver, a transit operator or a utility worker who is performing his or her duty;
(II) A provider of health care while the provider of health care is performing his or her duty or is on the premises where he or she performs that duty; or
(III) A sports official based on the performance of his or her duties at a sporting event; and
(2) The probationer, prisoner or parolee charged knew or should have known that the victim was an officer, a provider of health care, a school employee, a taxicab driver, a transit operator, a utility worker or a sports official,
-> for a category D felony as provided in NRS 193.130, unless the assault is made with the use of a deadly weapon or the present ability to use a deadly weapon, then for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
- Id.; Wilkerson v. State (1971) 87 Nev. 123, 482 P.2d 314; Anstedt v. State (1973) 89 Nev. 163, 509 P.2d 968.
- NRS 193.165 (“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.”); Loretta v. Sheriff, Clark County (1979) 93 Nev. 344, 565 P.2d 1008; State v. Napper (1870) 6 Nev. 113.
- NRS 200.471.
- Id.
- Id.
- See NRS 200.200.
- NRS 200.450.
- State v. Davis (1879) 14 Nev. 407; Holland v. State (1966) 82 Nev. 19, 414 P.2d 590.
- NRS 200.471.
- NRS 200.481.
- NRS 207.200.
- NRS 193.150.
- NRS 200.471.
- 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.
- NRS 202.360.
- NRS 202.320.
- NRS 200.481.