Under NRS 200.471, Nevada law defines the crime of assault as deliberately attempting to use force against a person, or placing the person in reasonable fear of imminent bodily harm. Simple assault is generally a misdemeanor that carries a penalty of up to 6 months in jail and a fine of up to $1000.00.
Assault in Nevada is different from the crime of battery (NRS 200.481). Battery is defined as deliberately touching another person in an unlawful way. In short, assault turns into battery when physical contact is made.
Note that battery is a separate offense from the Nevada crime of battery domestic violence (NRS 200.485), which constitutes physical violence between family, romantic partners, or roommates.
Predictably, NRS 200.471 imposes lesser punishments for assault than for battery since assault involves no touching or injuries. But putting someone else in fear of being hurt is treated as a Nevada felony if a deadly weapon was accessible:
Nevada assault charge
Penalties under NRS 200.471
|The defendant did not use a deadly weapon (or had no present ability to use one)||Misdemeanor in Nevada: |
If the victim was on duty as a police officer or other “protected class,” then assault is a gross misdemeanor in Nevada:
If the defendant was in custody, in prison, on parole, or on probation, then assault is a category D felony in Nevada:
|Nevada crime of assault with a deadly weapon (NRS 200.471(2)(b))||Category B felony in Nevada: |
Meanwhile, battery that results in the victim sustaining substantial bodily harm in Nevada is automatically charged as a felony, even if no deadly weapons were involved.
Nevada battery charge
Penalties under NRS 200.481
|The defendant did not use a deadly weapon||If the victim sustained substantial bodily harm or was strangled, battery is a category C felony in Nevada: |
Otherwise, battery is a misdemeanor:
If the defendant was in custody, in prison, on parole, or on probation, then battery is a category B felony, carrying 1 to 6 years in prison.
|The defendant used a deadly weapon||Category B felony, carrying at least 2 years in prison and a possible fine of up to $10,000. |
If the victim sustained substantial bodily harm or was strangled, the maximum prison sentence is 15 years. Otherwise, it is 10 years.
(There is no fine if the defendant was in custody, in prison, on parole, or on probation)
|The victim was on duty as a police officer or other “protected class” |
(See our article about the Nevada crime of battery on a peace officer)
|If the victim sustained substantial bodily harm or was strangled, and the defendant used a deadly weapon, battery is a category B felony: |
If the defendant used a deadly weapon, but there was no substantial bodily harm or strangulation, battery is a category B felony:
If the victim sustained substantial bodily harm or was strangled, but there was no deadly weapon, battery is a category B felony:
Otherwise, battery is a gross misdemeanor:
Depending on the case, prosecutors may be willing to reduce or dismiss assault or battery charges as part of a Nevada plea bargain. And there are several possible defenses to fight allegations:
- the incident was an accident;
- the defendant’s actions were legal under Nevada self-defense laws;
- the defendant was falsely accused; or
- the victim was never in reasonable apprehension of immediate bodily harm (for assault cases)
In this article, our Las Vegas criminal defense attorneys discuss the Nevada crimes of assault under NRS 200.471 and how it differs from battery:
- 1. How does Nevada law define assault and battery?
- 2. What are the penalties?
- 3. What are common defenses to the charge?
- 4. Are there immigration consequences?
- 5. Can I seal criminal records of assault or battery?
- 6. Are there related offenses?
Assault and battery are distinct Nevada crimes even though the general public often use the terms interchangeably.
Battery is touching another person in an unlawful way, such as punching. In contrast, assault is causing another person to believe he/she is about to be touched in an unlawful way. In short, assault is like a failed battery.
1.1. Legal definition of assault in Nevada (NRS 200.471)
An assault under NRS 200.271 occurs when one person intentionally puts another person in reasonable apprehension of immediate bodily harm. The victim experiences no touching, just the fear of being touched at any moment.1 Examples of assault include:
- throwing a bottle or other object in someone’s direction and missing;
- trying to slap a person, but the person ducks so no physical contact is made;
- holding a knife by a person’s throat; or
- pointing a loaded taser gun at someone2
In general, words alone are insufficient to qualify as an assault:
Example: Jim has left the men’s room in a Boulder City restaurant when he sees that his seat at the bar has been taken by Sam. Jim goes to Sam, stares at him meanly and says, “Listen up, jerk. If you do not get out of that seat in one second, you can be damned sure that you will be limping out of here in two!”
In the above example, a prosecutor might try to argue that Jim committed an assault against Sam. This is because his “fighting words” possibly put Sam in reasonable apprehension of being immediately harmed. But in practice, it is rare for prosecutors to bring assault cases involving only verbal threats.3 Had Jim also held up his fist to Sam while threatening him, it is more likely Jim would face criminal charges.
A key element of the Nevada crime of assault is that the victim is aware of the immediate physical threat. Therefore, it is impossible to assault someone who is sleeping, is looking away, is in a coma, or is otherwise unconscious.
1.2. Legal definition of battery in Nevada
Battery is the intentional and unlawful touching of another person.4 Examples battery include:
- stabbing; or
Unlike assault under NRS 200.471, battery requires physical contact. It makes no difference if the physical contact is indirect, such as causing a person to get sick by poisoning that person’s drink.
Also unlike assault, battery does not require that the victim be aware of the touching. For instance, it is still battery to beat up someone who is passed out even if the victim has no recollection of the attack.
The penalties for assault and battery vary depending on the circumstances of the case.
For instance, the sentence is harsher whenever the defendant knew — or should have known — that the victim was on duty as either of the following “protected class” occupations:
- officers (including the police),
- health care providers (including medical doctors),
- school employees (including teachers and administrators),
- taxi drivers,
- transit operators, or
- sports officials
Sentences are also more severe whenever a deadly weapon is involved. Deadly weapons comprise any inherently dangerous object like a firearm or knife.5
In addition, defendants face steeper penalties if at the time they were either:
- incarcerated in city/county jail or in prison,
- in lawful custody (such as after an arrest),
- on parole, or
- on probation
Finally, the penalties for battery increase whenever the victim sustained serious injuries.
2.1. Assault penalties in Nevada (NRS 200.471)
2.1.1. Assault with a deadly weapon
Assault with a deadly weapon in Nevada is always a category B felony. The sentence is:
- one to six (1- 6) years in prison, and/or
- up to $5,000 in fines
Note that it makes no difference if the defendant actually used the deadly weapon or merely had present access to it:
Example: Ned is having an argument with Tom in a bar. Finally Ned approaches Tom and takes a swipe at him, but Tom dodges him. Meanwhile, Ned’s other hand is on his knife, which is in a sheath on his belt. A policeman sees this exchange and arrests Ned.
In the above example, the D.A. may try to bring charges for assault with a deadly weapon because Ned had access to his knife during the assault. Even though Ned did not take out the knife, Tom may have reasonably believed that Ned was about to stab him since Ned had already tried to punch him and since Ned’s hand was on the knife.
2.1.2. Assault without a deadly weapon
Ordinarily, assault with no deadly weapon — called “simple assault” — is a misdemeanor under NRS 200.471. The sentence is:
- up to six (6) months in jail, and/or
- up to $1,000 in fines
But the defendant will instead face gross misdemeanor charges if the victim was part of a protected class (discussed above at the beginning of section 2). The sentence is:
- up to 364 days in jail, and/or
- up to $2,000 in fines
Finally, assault without a deadly weapon becomes a category D felony if the defendant at the time was in prison or lawful custody, on probation, or on parole. The sentence is:
- one to four (1 – 4) years in prison, and
- up to $5,000 in fines (at the judge’s discretion)6
2.2. Battery penalties in Nevada
2.2.1. Battery with a deadly weapon
Battery with a deadly weapon is a category B felony carrying at a minimum prison sentence of two (2) years. The judge may also order a fine of up to $10,000 (unless the defendant was in custody, on parole, or on probation).
The maximum prison sentence is ten (10) years as long as the victim was not strangled or seriously injured. But if the victim was strangled or seriously injured, the maximum prison sentence is fifteen (15) years.
2.2.2. Battery without a deadly weapon
“Simple battery” — which is battery without a deadly weapon or strangulation — is a misdemeanor, carrying:
- up to six (6) months in jail, and/or
- up to $1,000 in fines
If the victim was a member of a “protected class” (defined above at the beginning of section 2) — and if the victim was not strangled or seriously injured, and there was no deadly weapon — then battery is a gross misdemeanor. The sentence is:
- up to 364 days in jail, and/or
- up to $2,000 in fines
But if the “protected class” victim is strangled or seriously injured, battery is a category B felony. The sentence is:
- two to ten (2 – 10) years in prison if there was no deadly weapon OR two to fifteen (2 – 15) years in prison if there was a deadly weapon, and/or
- up to $10,000 in fines
And battery on a member of a protected class with a deadly weapon (but causing no substantial bodily harm or strangulation) is a category B felony, carrying:
- two to ten (2 – 10) years in prison, and/or
- up to $10,000 in fines
Finally, battery is automatically a category B felony whenever the defendant is an inmate, probationer or parolee. The punishment is one to six (1 – 6) years in prison.7
See our related article on the Nevada crime of battery with intent to commit a crime (NRS 200.400).
Assault shares several of the same potential defense strategies as battery. Three of these include:
- the incident was an accident (the defendant had no intent to assault or batter);
- the defendant was acting in defense of him/herself or others; or
- the defendant was falsely accused
People accused of assault specifically could try to argue that the victim was never in reasonable apprehension of immediate bodily harm. (In battery cases, it makes no difference whether the victim feared being harmed or not.)
A Nevada assault charge requires that the prosecution prove that the suspect intended to put someone in reasonable fear of physical harm. Similarly, a Nevada battery charge requires the prosecution to prove that the suspect intended to use unlawful physical force on someone. Therefore, one way to fight these charges is to demonstrate that the suspect lacked intent:
Example: Fred is at a North Las Vegas bar playing darts. Right as Fred throws one, Hank walks in front of the dartboard, sees the dart coming towards him, and ducks the dart. Later at the pool table, Fred is sliding back his cue stick and strikes Hank, who just walked behind Fred. Angry, Hank calls the police and claims Fred assaulted him with the dart and battered him with the cue stick.
If a policeman were watching, he probably would not arrest Fred for assault nor battery. When Fred threw the dart, he had no idea that Hank would walk in front of it. And when Fred slid back the cue stick, he had no idea Hank had just walked behind him.
In this case, the prosecution would have a difficult time arguing that Fred committed assault or battery because the situations were blameless accidents. Unless Fred had a reason to know Hank would be in the path of the dart or cue stick, Fred committed no crime.
Nevada law permits anyone to defend him/herself (or others) against immediate bodily injury as long as the force he/she fights back with is reasonable under the circumstances.
Example: Craig is walking through a Henderson alleyway when he comes across his enemy Tim. Tim starts punching Craig in the face, which is a form of battery. In response, Craig punches Tim back with more force. Then Tim brandishes a stick at Craig without touching him, which is a form of assault. In response, Craig waves his belt at Jim without touching him until Tim runs away. If a policeman were watching, he would probably arrest and book Tim at the Henderson Detention Center for battery (punching Craig) and for assault (brandishing the stick at Craig).
Craig would probably not be arrested because his actions were in reasonable self-defense to Tim’s actions. Although punching is technically battery, Craig punching Tim was a measured response to Tim punching Craig first. And although waving a belt is technically assault, Craig waving the belt at Tim was a measured response to Tim brandishing a stick at him.
Had Tim in the above example merely elbowed Craig or verbally abused him, then Craig’s reaction of punching Tim and waving his belt at Tim may have been too excessive to fall under self-defense.
3.3. False accusations
A possible defense to any criminal allegation is that the defendant was falsely accused. Sometimes the accuser’s motivation is anger or revenge, or sometimes that accuser honestly but inaccurately believed an assault or battery occurred.
Valuable evidence in these types of cases include:
- surveillance video of the incident;
- audio or text communications between the defendant and accuser that may reveal the accuser’s motives; and
- eyewitness accounts
As long as the defense attorney can raise a reasonable doubt about the defendant’s guilt, the criminal charges should be dropped.
3.4. No apprehension of immediate bodily harm (for assault charges only)
The definition of “assault” in Nevada under NRS 200.471 is putting someone in reasonable apprehension of immediate bodily harm. Therefore, a possible defense to assault charges is to argue that the alleged victim’s apprehension was unreasonable and/or that the harm was not immediate. For example,
Example: Jenny is walking through a Laughlin casino when Jill comes up to her, stomps her feet, and says, “If you do not pay me the money you owe me in the next five minutes, you are gonna regret it!”
In this case, there is a good argument that no assault occurred because the harm Jill threatened was not immediate enough. Usually, any harm that would take more than a few seconds to occur disqualifies assault as a possible charge. Furthermore, any fear Jenny feels from Jill’s threat probably is not that reasonable since “you are gonna regret it” is too vague.
Visa- or green card-holders convicted of any violent offense risk being deported. Certainly, this is more likely in felony rather than misdemeanor cases. But with immigration law constantly changing, even low-level offenses may jeopardize an alien’s legal status.8
Consequently, non-U.S. citizens facing criminal charges are strongly advised to seek legal counsel experienced in both immigration and criminal law. Learn more about the criminal defense of immigrants in Nevada.
Assault and battery convictions are usually sealable from defendants’ criminal records once enough time goes by. But since assault and battery are “crimes of violence,” this waiting period is double the usual time:9
Nevada assault or battery conviction
Record seal wait time
|Misdemeanor||2 years after the case closes|
|Gross misdemeanor||2 years after the case closes|
|Category D felony||10 years after the case closes|
|Category C felony||10 years after the case closes|
|Category B felony||10 years after the case closes|
However, defendants can petition the court for a record seal immediately if their charge gets dismissed (which means there is no conviction).10 Read more about how to seal criminal records in Nevada.
6.1. Attempted murder
The Nevada crime of attempted murder occurs when a person tries to kill someone else but fails. For a defendant to be convicted of attempted murder, he/she must have taken a “direct step” towards carrying out the murder.
Attempted murder is a category B felony, carrying two to twenty (2 – 20) years in prison. However, the punishment may be more severe if the defendant used poison.
Maiming someone is prosecuted as the Nevada crime of mayhem (NRS 200.280). Examples of mayhem are chopping off a finger or slicing off an ear.
Mayhem is a category B felony in Nevada. The sentence is:
- two to ten (2 – 10) years in prison, and
- up to $10,000 in fines (at the judge’s discretion)
6.3. Aiming a gun at a person
The Nevada crime of aiming a gun at a person (NRS 202.290) is a gross misdemeanor, carrying:
- up to 364 days in jail and/or
- up to $2,000 in fines
It makes no difference whether the gun was loaded or the defendant intended to pull the trigger. As opposed to assault, a person can be convicted of this crime even if the victim had no idea a gun was being aimed at him/her.11
Call a Nevada criminal defense attorney…
Have you been arrested for assault or battery in Nevada? Our Las Vegas criminal defense attorneys offer free consultations to discuss a gameplan for your defense.
Arrested in California? See our article on California assault and battery laws | Penal Code 242 PC.
Arrested in Colorado? See our article on the Colorado crimes of assault and menacing (C.R.S. 18-3-202 – 206).
- NRS 200.471 – Assault: Definitions; penalties.
- Parker v. Asher, 701 F. Supp. 192 (D. Nev. 1988)(Where a prison inmate’s complaint alleged that a correctional officer threatened to shoot him with the taser gun for no legitimate penological reason, loaded the taser gun and “intentionally, maliciously, and sadistically” pointed it at him merely to inflict gratuitous fear and punishment, such factual allegations were sufficient to support a cause of action under this section.).
- Wilkerson v. State, 87 Nev. 123, 482 P.2d 314 (1971); Anstedt v. State, 89 Nev. 163, 509 P.2d 968 (1973)(To constitute assault, mere menace is not enough; there must be an effort to carry the intention into execution).
- NRS 200.481.
- See Rodriguez v. State, 407 P.3d 771, 133 Nev. Adv. Rep. 110 (December 28, 2017)(Since the Supreme Court of Nevada has consistently defined “deadly weapon” according to both the functional and the inherently dangerous definitions, the district court had discretion to determine which definition of “deadly weapon” was appropriate given the facts of the case.).
- NRS 200.471; also see NRS 200.490. Provoking assault: Penalty. Every person who shall, by word, sign or gesture, willfully provoke, or attempt to provoke, another person to commit an assault shall be punished by a fine of not more than $500.
- NRS 200.481.
- See, e.g., Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); United States v. Belless, 338 F.3d 1063 (9th Cir. Aug. 11, 2003); 18 U.S.C. § 922(g)(9); INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i); INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).
- NRS 179.245.
- NRS 179.255.
- Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966)(Lexis: Aiming or discharging a firearm in violation of NRS 202.290 is not a lesser included offense of assault with a deadly weapon.)