NRS 200.485 is the Nevada law defining battery domestic violence (BDV) as intentionally inflicting unlawful physical force on current or former spouses, dating partners or certain family members. A first offense is usually a misdemeanor crime punishable by fines, 48 hours of community service, 6 months of counseling, and a suspended jail sentence.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. How does Nevada define battery domestic violence?
- 2. What happens if I am convicted?
- 3. How can I get a domestic battery case dismissed?
- 4. Can I get my criminal record sealed?
- 5. Will this show up on a background check?
- 6. What if the “victim” does not want to press charges?
- 7. Do I really need to hire a lawyer?
- 8. Will I lose my right to have a gun?
- 9. Will I get deported?
- 10. What is the best and worst that can happen?
1. How does Nevada define battery domestic violence?
Under NRS 200.485, the Nevada offense of “battery domestic violence” has two elements:
- The accused and the victim are or were in a domestic relationship; and
- The accused committed battery against the alleged victim.
1.1 “Domestic relations”
BDV charges apply only when the accused and alleged victim share a familial, intimate, or domestic relationship. Examples of these relationships include:
- spouses (current, separated, or divorced)
- domestic partners (current or separated)
- co-parents of a minor child
- significant others (regardless of whether the relationship is exclusive)
- minor children of the above or of the defendant
- relatives by blood or marriage with the exception of cousins or siblings (unless they are in a guardianship or custodial arrangement with the defendant)
- the accused is the guardian of the alleged victim
Physical violence between friends, acquaintances, neighbors, or strangers may qualify as battery (NRS 200.481) but never as BDV.
Battery (NRS 200.481) is deliberately touching another person in a violent, aggressive, hostile, or simply unwanted way. Battery charges typically involve allegations of hitting, kicking, choking, cutting, or throwing objects at.
Note that a person can be convicted of battery even if the alleged victim does not sustain any injuries or even feels pain. All that matters is that there was unlawful or unwanted physical touching, regardless of the consequences.1
Read more about the definition of BDV in Nevada.
2. What happens if I am convicted?
A first-time BDV in a seven-year period is typically a misdemeanor in Nevada. Penalties include:
- $200 to $1,000 (the minimum fine is $300 with court costs);
- 48 to 120 hours of community service;
- Domestic violence counseling for at least 1 ½ hours per week for at least 6 months (26 weeks);
- 2 days to 6 months in jail (courts cannot grant probation for BDV, but it can suspend the jail sentence as long as the defendant completes the other sentencing terms)
A second-time BDV in a seven-year period is also a misdemeanor, but there is a minimum 20 day jail sentence. The punishments include:
- $500 to $1,000 (the minimum fine is $800 with court costs);
- 100 to 200 hours of community service;
- Domestic violence counseling for at least 1 ½ hours per week for at least 12 months (52 weeks); and
- 20 days to 6 months in jail
A third-time BVD in a seven-year period is automatically a category B felony, even if the victim sustains no injuries. The punishment is one to six years in Nevada State Prison and a $1,000 to $5,000 fine.
Note that once a defendant gets a felony-level BDV conviction, any future BDV cases get charged as a category B felony – even if the case is minor. The penalty is two to fifteen years in prison and $2,000 to $5,000 in fines.
2.1. Aggravating factors
Battery domestic violence is always a category B felony if the defendant had a deadly weapon or the victim sustained substantial bodily harm:
|Category B felony BDV||
|BDV resulting in substantial bodily harm but with no deadly weapon||
|BDV with a deadly weapon but no substantial bodily harm||
|BDV with a deadly weapon and substantial bodily harm||
Meanwhile, BDV involving strangulation is a category C felony as long as the defendant did not cause serious bodily injury or use a deadly weapon. The penalty is one to five years in prison and up to $10,000 in fines (at the judge’s discretion).
2.2. Pregnant victims
Battery domestic violence penalties are harsher when the defendant knew the victim was pregnant (or should have known the victim was pregnant).
A first-time BDV offense against a pregnant victim is a gross misdemeanor, carrying up to 364 days in jail and/or up to $2,000 in fines. And a subsequent offense is a category B felony, carrying one to six years in prison and $1,000 to $5,000 in fines.2
2.3. Restraining orders
It is common for battery domestic violence victims to have restraining orders taken out against them. Typical requirements are that the defendant avoid contact with the victim and surrender any firearms. Violating a restraining order (NRS 33.100) is a crime in itself:
|Type of Nevada protection order||
Penalty for violations
|Temporary protective order (TPO), which lasts up to 45 days||Misdemeanor:
|Extended protective order, which lasts up to one year||First offense is a misdemeanor:
Second offense is a gross misdemeanor:
Subsequent offense is a category D felony:
2.4. Child custody cases
Family law judges make their child custody decisions based on what is in the best interest of the child. So it is not unusual for divorcing spouses to levy false BDV allegations in an effort to get primary custody.
Initially, Nevada law presumes that both parents get joint legal and physical custody. But if a family law judge finds that there is “clear and convincing evidence” that the accused committed BDV, then the law presumes that the other parent should get primary physical custody. And it can be very difficult for the accused to overcome this “rebuttable presumption” that he/she is unfit for custody.4
Read more about Nevada BDV penalties.
3. How can I get a domestic battery case dismissed?
One of the most common defenses that could get a Nevada battery domestic violence charges dismissed is that the defendant was acting in lawful self-defense. Nevada law permits people to fight back against an aggressor as long as:
- they reasonably believe it is necessary to avoid imminent injury to themselves or someone else, and
- they use no more force than necessary to deflect the attack.
Another potential defense is that the “victim” falsely accused the defendant just to “get back” at him or her. This is particularly common during child custody battles. Some accusers even self-inflict injuries before calling 911 in attempt to back up their allegations.
Finally, it can be an effective defense to argue that the incident was just an accident. As long as the defendant did not knowingly touch the victim in an unlawful way, BDV charges should be dropped.
Example: Fiances Esther and Edward have an argument in their North Las Vegas house. Esther runs to the bathroom to be alone, not realizing that Edward is tailing her. Esther then slams the bathroom door behind her, hitting Edward.
Upset, Edward calls 911. The police arrive and see injuries on Edward’s face and jump to the conclusion that Esther purposely hurt him. But unless prosecutors can prove Esther meant to touch Edward by slamming the door, the case should be dropped.
Typical evidence in BDV cases includes eyewitness testimony, video footage, and medical records of any injures. The defendant’s domestic violence lawyer may also be able to call expert witnesses to show that the victim’s injuries were self-inflicted or were more in line with the defendant acting in self-defense than in direct aggression.
Note that police misconduct could also get a BDV case dismissed. For example if law enforcement conducted an illegal search, the defendant can file a motion to suppress asking the judge to disregard any unlawfully-discovered evidence. If the judge agrees, the D.A. may be left with too weak a case to continue prosecuting.5
In short, there are several ways to fight BDV charges depending on the facts of the case. An arrest is not a conviction, and it is always worth putting on a strong defense in pursuit of getting the charge dismissed or reduced to a lesser offense.
3.1. Going to trial
BDV trials are rare. Most cases resolve through negotiations between the defense attorney and prosecutors. Should the case reach trial, prosecutors have the burden to prove guilt beyond a reasonable doubt.
Anyone charged with misdemeanor or felony BDV has the right to a jury trial or a bench trial, where the judge decides the verdict.6 Defendants are usually advised to choose a jury trial over a bench trial.
Juries tend to be more sympathetic to defendants than judges. And unlike jurors, judges are aware of any incriminating evidence that may have been suppressed during the case’s pretrial phase. So it may be difficult for judges to disregard this evidence when rendering a verdict.
Read more about Nevada BDV defenses.
4. Can I get my criminal record sealed?
Yes. In Nevada, a misdemeanor or gross misdemeanor battery domestic violence conviction may be sealed seven years after the case closes. A felony BDV conviction is sealable 10 years after the case closes.
BDV charges that get reduced to simple battery can be sealed two years after the case closes. And if the BDV charge gets completely dismissed, then defendants can petition the court for a record seal immediately.7
5. Will this show up on a background check?
Battery domestic violence cases do show up on criminal background checks unless the defendant gets them sealed. Everyone with a BDV case is advised to pursue a seal as soon as legally possible. Having a clean criminal record greatly increases the chances of getting a job, a professional license, loans, and housing.
(Scroll up to the previous question about the waiting periods to get a Nevada record seal.)
6. What if the “victim” does not want to press charges?
Victims who do not want to press battery domestic violence charges do not stop the case from going forward in Nevada. This is because prosecutors believe that victims who recant their BDV allegations have ulterior motives.
For example, perhaps the victim needs the defendant out of trouble to keep financially supporting the family. Or perhaps the defendant’s family is threatening to hurt the victim unless the victim recants.
When victims do not cooperate with prosecutors, the state relies on other evidence such as eyewitness testimony and medical records of the victim’s injuries. Prosecutors may even call recanting victims to testify at trial to impeach their credibility on the witness stand.
But in some cases, the victim is the only real evidence prosecutors have. And if the victim fails to cooperate with the state, then prosecutors may have no choice but to drop the case for lack of proof.
Note that victims who recant their abuse allegations may face criminal charges for making a false police report (NRS 207.280). And victims who ignore their subpoena to appear at the BDV trial risk the judge finding them in contempt and issuing a bench warrant for their arrest – though judges do not always do this.8
7. Do I really need to hire a lawyer?
Retaining an experienced Nevada criminal defense lawyer increases a defendant’s odds of winning a battery domestic violence case for three reasons:
- Private attorneys conduct a thorough investigation on each case in search of all evidence that could help weaken the state’s case. In contrast, public defenders often do not even look at their clients’ cases until minutes before the court hearing. They simply lack the time and resources to effectively represent their client and fight for a favorable resolution.
- Private attorneys take as long as necessary to wear down prosecutors in pursuit of a dismissal or favorable plea deal. In contrast, public defenders have such an enormous caseload that they are motivated to settle quickly – even if it means a bad plea deal for the defendant.
- Prosecutors tend to offer better plea bargains to defendants who are represented by private counsel.
The stakes for a BDV case are so high. Defendants face not just criminal penalties but potentially losing their job and professional license. By relying on private counsel, defendants can rest assured they are doing everything possible to pursue the best possible outcome in their case.
8. Will I lose my right to have a gun?
Defendants convicted of battery domestic violence in Nevada do lose their right to own and possess firearms. It does not matter if the BDV conviction was for only a misdemeanor. The only way to get gun rights restored in Nevada is through a pardon.
Unlawful possession of a firearm (NRS 202.360) is a category B felony in Nevada. Penalties include one to six years in prison and up to $5,000 in fines (at the court’s discretion).9
9. Will I get deported?
A battery domestic violence conviction can trigger deportation proceedings for non-U.S. citizens.10 Therefore, foreigners facing BDV criminal charges should hire an attorney to fight to get the charge dismissed or reduced to a non-deportable crime.
10. What is the best and worst that can happen?
The best-case scenario is that the state will dismiss the battery domestic violence charge. This can happen, but not without a strong defense. Nevada prosecutors are not legally allowed to dismiss or reduce BDV charges unless they can show the court that their case is too weak to support a guilty verdict.
The worst-case scenario is that the defendant is convicted and sentenced to the maximum term of incarceration. This rarely happens, especially in misdemeanor cases.
A more common end result is that the defendant pleads no contest to BDV and receives the minimum penalties. Another possibility is that that the charge be reduced to simple battery, disorderly conduct, or breach of peace (NRS 203.010), which carries lesser penalties and stigmas than a BDV.
In certain cases, judges permit defendants to enter a stayed adjudication: This is where the defendant enters a plea, but the judge holds off on a conviction. Then if the defendant completes certain terms, the judge may reduce or dismiss the charge.
Sometimes the judge allows the defendant to enter a submittal on the record: Here, the defendant does not enter a plea at all. Then once the defendant completes certain terms, the charge gets dismissed.
In sum, it is certainly possible for criminal defense lawyers to negotiate a charge reduction or dismissal in BDV cases. Just note that it is an uphill battle that requires intensive investigation and negotiation.
Arrested? Contact our Las Vegas domestic violence lawyers today.
¿Habla español? Visita nuestra página web en español sobre las leyes contra la violencia doméstica de la batería Nevada.
In California? See our article on Penal Code 273.5 corporal injury to a spouse or cohabitant.
In Colorado? See our article on Colorado domestic violence laws.
- NRS 200.485; NRS 33.018 (“Domestic violence occurs when a person commits [battery] against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child[.]”).
- NRS 200.485.
- NRS 33.100.
- Castle v. Simmons, (2004) 120 Nev. 98, 86 P.3d 1042, 120 Nev. Adv. Rep. 15.
- Another potential defense to BDV charges is Battered Woman Syndrome, though this is typically employed in homicide cases. See, e.g., Boykins v. State, (2000) 116 Nev. 171, 995 P.2d 474, 116 Nev. Adv. Rep. 17.
- Andersen v. Eighth Judicial District Court, (2019), 448 P.3d 1120, 135 Nev. Adv. Op. 42 (“Because our statutes now limit the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, the Legislature has determined that the offense is a serious one. And given this new classification of the offense, a jury trial is required.”).
- NRS 179.245; NRS 179.255.
- See NRS 51.035, NRS 51.069; NRS 207.280.
- NRS 202.360; see also the Lautenberg Amendment – 18 USC 922(g)(9).
- 22 CFR 40.21; 8 USC § 1227; U.S. v. Jimenez, (C.A.9, 2001) 258 F.3d 1120.